Writing in The New York Times, Bowdoin College philosopher Sarah Conly nods toward the recently suspended New York City soda ban and argues:
Is it always a mistake when someone does something imprudent, when, in this case, a person chooses to chug 32 ounces of soda? No. For some people, that's the right choice. They don't care that much about their health, or they won't drink too many big sodas, or they just really love having a lot of soda at once.
But laws have to be sensitive to the needs of the majority. That doesn't mean laws should trample the rights of the minority, but that public benefit is a legitimate concern, even when that may inconvenience some.
Conly rebuts John Stuart Mill's presumption toward maximum freedom in one's personal sphere, noting that Mill's simplistic understanding of autonomy has been complicated by deeper understandings of how the human mind works. Mill, says Conly, didn't know what we know now, that our minds are structured to keep us from making the "right" choice. She concludes:
In the old days we used to blame people for acting imprudently, and say that since their bad choices were their own fault, they deserved to suffer the consequences. Now we see that these errors aren't a function of bad character, but of our shared cognitive inheritance. The proper reaction is not blame, but an impulse to help one another.
That's what the government is supposed to do, help us get where we want to go. It's not always worth it to intervene, but sometimes, where the costs are small and the benefit is large, it is. That's why we have prescriptions for medicine. And that's why, as irritating as it may initially feel, the soda regulation is a good idea. It's hard to give up the idea of ourselves as completely rational. We feel as if we lose some dignity. But that's the way it is, and there's no dignity in clinging to an illusion.
The essay is titled "Three Cheers for the Nanny State," and it delivers.
But there are so many holes in Conly's case, you've got to wonder if she's gonna make it past the assistant prof level. For starters, she invokes a "public benefit" without even bothering to specify what that might be, even as she assents to a cost-benefit analysis for public policy (go ahead, she says, "where the costs are small and the benefit is large").
She simply assumes the vague connections put forward by Mike Bloomberg and others that somehow soda drinking is a meaningful cause of people becoming overweight and that being overweight increases health costs (let's leave aside for the moment whether the size of your ass is a proper concern of local government). Neither of these is true. As Jacob Sullum has pointed out, the research cited to make a causal connection between soda and heftiness is softer than a push-cart knish. And while being overweight may not sit well with the solons of skinny jeans, it's not a health risk per se either. If the basis for a particular problem isn't established, then you don't even have to get to the point where you question whether the costs outweigh the benefits.
Her dismissal of John Stuart Mill smacks of building a straw man as well. Mill's "harm principle"—the idea that as long as your actions don't directly hurt others, you should be free to wreck your own life—doesn't depend on any notion of "ourselves as completely rational." It's a much softer conception than that. Conly is right that our general understanding of the human mind has developed greatly from the 19th century. Indeed, it's gone all the way back to Hume's understanding that reason is a slave to the passions (broadly speaking, that the brain is a sloppy computer that is marinated in all sorts of fluid that keeps us from being pure Vulcans). But shouldn't that recognition also work to limit government actions as well as those of individuals? The soda ban, for instance, doesn't spring from the spirit of the people or of the era but from a handful of highly placed individuals whose rational faculties are just as brokered as the most soda-enslaved among us. If the shlub on the street can't be trusted to run his own life due to evolutionary limits placed on his decision-making apparatus, why would Mike Bloomberg be any different?
Perhaps more important in this sort of argument, Conly is—consciously or not—smuggling in a highly tendentious sense of role of government—it's supposed to "help us get where we want to go." That's as peculiar an interpretation of "life, liberty, and the pursuit of happiness" as you'll ever read, and it's certainly one that stands opposed to the safeguards put in place to limit government and maintain the rights of minorities. Who's we, kemo sabe?
Which leads me to two final quick points: First, it's worth looking at the power dynamics of the soda ban, in which a billionaire mayor—the 7th richest American!—is acting like an Albanian dictator. Rather than outlawing pets or certain forms of music, it's easy to imagine Bloomberg simply deciding that goddamnit, I don't want to see another fatso drinking a Big Gulp ever again—make it happen! This goes beyond micro-management in a corporate context to a deranged focus on tiny details that no elected official should give a shit about. Second, the issue of soda sizes is so bizarre and irrelevant to almost anything that matters in this vale of tears, you've got to wonder what function such a gesture the soda ban serves. Mike Bloomberg presides over a city that has so many first-order problems and issues to deal with—a stop-and-frisk policy that targeted minorities? pension liabilities up the ying-yang? an inability to deliver on post-disaster redevelopment? the list goes on—you can be forgiven that the soda ban is like some sort of happy place he can go when the real world is too much to bear.