- - Wednesday, March 13, 2013



New York City Mayor Michael R. Bloomberg’s tireless search for new liberties to attack met some resistance early this week when State Supreme Court Justice Milton Tingling struck down his ban on sugary drinks as “arbitrary and capricious.” Judge Tingling argued that the unpopular legislation, speckled with loopholes and inconsistencies, resulted in “uneven enforcement even within a particular city block, much less the city as a whole.” Apparently Mr. Bloomberg is more enthusiastic than competent when it comes to depriving others of routine freedoms. 
Judge Tingling’s decision turns out to be particularly instructive since it could double as a philosophical takedown of Mr. Bloomberg’s brand of “nudging paternalism” as a whole. The mayor’s attempted micromanagement of daily life presumes not only moral superiority, but also basic bureaucratic proficiency. It takes some real logistical skill to regulate a complex  swarm of civic minutiae. One powerful, practical argument against intrusive liberalism is that government is simply not nimble enough for this kind of superintendence. Mr. Bloomberg defended his policies as “groundbreaking,” but they don’t even count as well-written. 
In addition to being ineffective, Mr. Bloomberg’s schoolmarmish interdictions dismiss the legal limits of government action. Judge Tingling pointed out that the government’s objective to improve public health is so vague it would “leave its authority to define, create, mandate and enforce only limited by its own imagination.” Yet constitutional limits are important precisely because technocrats have such active imaginations when it comes to conjuring new ways to replace individual prerogative with centralized control. The predictable result, according to Judge Tingling, would be an “administrative Leviathan.” You don’t need to read Hobbes to know that’s bad.
Mr. Bloomberg’s own sweeping justification for his overreach is as vacuous as it is melodramatic: “It would be irresponsible not to do everything we can to save lives.” 

Is the indiscriminate banning of some sugary drinks — and the neglect of others — really going to save lives? Moreover, does Mr. Bloomberg’s “everything we can” include strident dismissal of due process, neglect of the city’s separation of powers and denial of the basic dignity of human choice? 

As a justification for restricting individual liberty, the appeal to public health is amorphous at best. It is specifically designed to circumvent the limits of the law, digging legalistic tunnels under the fence of constitutional restriction. 
The oversized role government now plays in health care is a key accomplice. One basic foundation of modern liberalism is the distinction, as articulated by John Stuart Mill, between “self-regarding” and other-regarding” action. As the principle goes, the government has a right to restrain citizens engaged in behavior that negatively affects others, but should refrain from interference as long as people’s actions only harm themselves. Government’s continued intrusion in private health care obliterates this distinction, making any action ultimately “other-regarding” since health-related costs are essentially pooled in the collective tax burden. 

As long as the government continues to foot a substantial portion of the public’s health costs, it can justify its aggressive insinuation into the private lives of its citizens. 
The failure to draw some operational distinction between self-regarding and other-regarding action leads to “arbitrary and capricious” policy: Ban some sugary drinks and not others, while banning no sugary foods at all. The presumption of private choice is discarded with no expectation of real benefit in return. Mr. Bloomberg’s efforts seem to be merely an errant shot in a small-scale culture war. 
What’s more, Mr. Bloomberg’s obsession with microscopic regulation might not be so noxious if he competently managed bigger ticket issues like the safety of New York’s citizens when natural disaster strikes. Progressive liberals tend to compulsively tinker with every minute machination of civic life but drop the ball on more important obligations. This makes Mr. Bloomberg’s political inclinations both petty and dangerous. 
While the advocates of modern liberalism claim that progress is inevitable, they still obsessively tweak our march towards it. Of course, obesity is a serious threat to the health (and purse) of New York City, but there must be ways to counter that danger that still respect individual freedom. Fortunately for New Yorkers, the law in this case took the side of freedom over government control. One can hope New Yorkers will take better care of themselves and even actively encourage them to do so, but each one of them has the right, like Melville’s Bartleby, to demur: “I’d rather not.” 
Ivan Kenneally is editor-in-chief of Dailywitness.com




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