As John Stuart Mill famously explained it, government can constrain your behavior when you are doing harm to others but it has no right to coerce you if you are merely doing harm to yourself.
Mill believed that individuals should be trusted to exercise personal freedom. Invariably they are most qualified to know what is in their best interest. And, they possess the knowledge to arrive at the best decisions. For the record, it's the principle behind the free market.
If it happens that an individual, out of ignorance, is harming himself, Mill would allow the government to intervene on his behalf.
In many areas of life we allow government to impose some degree of regulation. We accept bans against driving without seat belts and taxes on tobacco products.
The question is whether these exceptions should become the rule. It’s one thing to say that individuals might be constrained by government, but we should also accept that government should be constrained from encroaching on individual freedom.
Since our personal judgment is not infallible, we occasionally make mistakes. If we are acting freely we are free to accept responsibility for our errors. If we accept responsibility we are free to change our behavior.
But, we are also free not to change our behavior. We might believe that change is too costly. Or we may refuse to cave in to those who wish to control our decisions.
In a free society we are free to do so. Our human dignity depends on our exercise of free will.
Behavioral economists beg to differ. They are worried that we make so many mistakes. They are concerned that we are so often prone to err.
Many behavioral economists consider this to be crucial. They conclude that if we are statistically prone to give in to temptation, as it used to be called, we are therefore lacking in free will.
Of course, they are in error. The idea of free will, which antedates John Stuart Mill by several millennia, accepts that we are often tempted and even that we often yield to temptation. We might well eat more when there is more on the plate, but that does not mean that we are not responsible for our choice.
Led by former Obama administration regulatory czar and current law professor Cass Sunstein behavioral economists have been arguing that we are so feeble minded and prone to error that we need the government to steer us in the right direction.
Thomas Sowell has responded cogently that government is made up of individuals and that there is no reason to believe that these individuals are of sturdier moral timber than the rest of us.
Clearly, he is right. His view highlights the fact that Sunstein and company see government as a benevolent agency that knows what is best for us and that is qualified to intrude on our personal decisions.
Why would government bureaucrats know what is best for us? Sunstein implies that they are basing their decisions on science. And, as disinterested public servants they want nothing but our good.
Sunstein sees government officials as an enlightened “guardian class,” as Plato called them. Somehow or other the great minds of behavioral economics cannot imagine that government officials can be self-interested and that their decisions are influenced by their wish to keep their jobs.
Is it unfair to say that public employee unions are out for themselves? Do they support political candidates who will offer them generous wage and benefit packages because they are disinterested public servants?
The proponents of expansive government are defending a class interest. The greater the power of government, the more important their jobs. The more important their jobs the more they gain prestige and income.
Behavioral economists want bureaucrats to push us toward or away from certain behaviors. They want to help us to do what they think we should do. But, David Hume famously declared, there is no science of “should.”
So, behavioral economists base their prescriptions on a number of moral principles.
Now, everyone agrees that good health is a good thing. Everyone agrees that increased longevity is a good thing. No one seems to consider that some things might be more important than longevity and that people who sacrifice their lives in service of the nation believe that there is something more important than living to be 112.
Be that as it may, bans on transfats and the Big Gulp are designed to improve our health and to ensure longer life.
So we are being nudged toward good health all the time. And a goodly number of Americans are pushing back. The country obsesses constantly about fat, but is also the most obese on earth.
Perhaps this proves that people value their dignity and their freedom more than their health. Perhaps they would not feel very good about themselves if they sacrificed their freedom on the altar of paternalistic government?
And then there’s this: James Taranto pointed out that the regulatory zeal of the behavior economics crowd stops at the boudoir. A group that wants to regulate more and more of your individual behavior—in the name of good health and the common weal-- refuses to lay a paternalistic glove on your sex life.
In Taranto’s words:
An even better example is this observation from Sunstein's review: "Because hers is a paternalism of means rather than ends, she would not authorize government to stamp out sin (as, for example, by forbidding certain forms of sexual behavior)."
What a staggering cop-out. The past 50 years or so have seen a massive deregulation of personal behavior in the sexual sphere, a revolution of law, technology, custom and economics, all in the name of personal autonomy. Never mind "sin"--this has had bad consequences for public health (AIDS and other new sexually transmitted diseases), for children (far more of whom are born out of wedlock and reared without fathers), and even for the future of the welfare state (since declining fertility makes old-age entitlements unsustainable).
Sunstein is talking about Sarah Conly’s refusal to authorize government to nudge us away from sin. Both he and she ignore the fact that government discourages the sins of alcohol and tobacco consumption through heavy taxes.
Yet, Taranto has clearly identified the Achilles heel of this enterprise, especially as it involves policy.
Sexual behavior satisfies all of the predicates that Sunstein and Conly lay down, but for reasons that are obscure, they refuse to consider its deregulation to be a problem.
How much of a problem is it?
A new report from the Centers for Disease Control lays it out:
According to new data released by the federal Centers for Disease Control and Prevention, there were 19.7 million new venereal infections in the United States in 2008, bringing the total number of existing sexually transmitted infections (STIs) in the U.S. at that time to 110,197,000.
The 19.7 million new STIs in 2008 vastly outpaced the new jobs and college graduates created in the United States that year or any other year on record, according to government data. The competition was not close.
It’s nice to know that Americans are still competitive at something.