In Defense of the Nanny State

Few questions loom larger on the political horizon right now than defining the proper role of government in regulating individual freedoms. As many have argued with varying degrees of sanity over the past few months, much of the current health care debate boils down to what kind of government America both needs and deserves.

Which is why I was dismayed to read Jacob Weisberg's column in Slate on Saturday -- "First They Came for the Marlboros." In it, the author points to a dismaying trend of "nanny state"-type intrusions on individual liberties sweeping our country. The latest include a series of New York City initiatives that aim to ban smoking in public places and to reduce the consumption of sugar-sweetened drinks. In response, Weisberg mounts a spirited (bipartisan) attack on such heavy-handed public policies, arguing that our country is on a slippery slope toward "paternalistic over-reach."

I've got nothing but respect for Jacob Weisberg, who edited Slate for many years and is now editor in chief and chairman of the Slate Group. But on this one, I really think he's got it wrong: empirically, philosophically and politically.

Let's start with the empirics. Weisberg is willing to tolerate a certain degree of government regulation over private citizens' behavior when that behavior causes some sort of collateral damage to others -- i.e. smoking in public places. He's also a fan of regulatory czar Cass Sunstein-style "soft paternalism" -- i.e. regulation that promotes better behaviors without actually infringing on individual rights (e.g., requiring workers to opt out of, rather than into, 401[k] programs.)

Where he draws the line is with those laws in which the putative harm is done exclusively to the individual, rather than to someone else: "motorcycle helmet laws, seat belt laws, laws against selling unpasteurized milk, efforts to block discrimination in private clubs, and restrictions on recreational drugs and prostitution." (To name a few!) In those instances, Weisberg thinks that governments on both the left and the right should refrain from telling us what's good for us.

Really? Let's take the issue of some of the health care directives listed above designed to discourage us from, say, drinking soda pop. Do these activities really only harm the individual in question? As Janet argued recently, the chronic diseases the country faces carry a huge toll on public health and on the country's health system generally. Insurance companies and -- indirectly -- their shareholders pay for that health risk, as do the rest of us when the unhealthy uninsured -- yup, all 46.3 million of them -- end up in the emergency room.

Ditto seat belts and motorcycle helmets. If you're more likely to suffer major injuries in a road accident when you aren't wearing a helmet, that's going to be reflected in my insurance premium.

But it's not just empirically where Weisberg gets it wrong. Philosophically, I also have trouble with his reasoning. His main argument against paternalism seems to boil down to "because John Stuart Mill said so." Mill famously argued that there is no justification for government infringement on individual liberties except when those liberties directly harm other people. The implication of Weisberg's argument seems to be that "hard" paternalism -- in the form of, say, a smoking ban outdoors where it (arguably) doesn't hurt anyone but the smoker herself -- is downright un-American. Call me crazy, but since when is John Stuart Mill the spokesperson for the American regulatory state?

Sure, Mill is often held up as the last word on the liberal (small "l"!) theory of individual rights. But if you read some of the recent revisionist accounts of American political history -- people like the University of Michigan's William Novak, for example -- you quickly see that this whole mythology of America as the land of laissez-faire individualism is just that: a myth. A weak state never really existed in this country and Novak argues convincingly that the real story behind American political development (or at least the huge, hulking administrative legal apparatus we now know and love) is one that is much more collectivist and grounded in shared responsibilities, rather than just championing or embodying individual rights.

If it were up to me, I'd opt instead to root our nation's story in an entirely different philosophical narrative, one centered on so-called communitarianism, associated with people like Michael Sandel and Michael Walzer. While communitarianism has many strands, its central tenet is that we need to experience our lives as bound up with the good of the communities out of which our identity has been constituted. It follows that our government needs to move away from an exclusive focus on personal fulfillment and toward a concern with bolstering families, schools, neighborhoods and national political life, and that such changes should be bolstered by public policies.

From this perspective, and as articulated so eloquently by the archbishop of Washington at this site last week, the primary case for universal health care is a moral one, deriving from the fact that we are all part of the same community -- call it America, call it the human race. And that is the sensibility driving those of us who favor a public option in the health care system.

Finally, I must disagree with Weisberg on political grounds. To be fair, he is equally critical of both the right and left for deploying regulatory policy towards paternalistic ends -- social policy in the case of the right and health and safety standards in the case of the left. But Weisberg seems to think that there is something fundamentally dangerous about a government that tries to promote private virtue.

Call me a socialist -- (someone in the comments section will!) -- but don't we elect governments precisely in order to tell us what they think is right and then pass laws to that effect? Sure, this inevitably means that if you're a Democrat, you might not be able to get drunk before noon on Sunday in certain states. Or if you're a Republican, we might force you to know how many calories there are in your Fribble when you visit New York state.

But that's all just part and parcel of that charming little (communal) experiment our country's been engaging in for 200-plus years. It's called democracy.