Cass Sunstein, the legal scholar and former regulatory czar to President Obama, is back.

Normally this wouldn’t be newsworthy. Sunstein left government last year and now spends his time lecturing at Harvard Law School, safely removed from the public regulatory apparatus. But he recently popped up in a series of op-eds advocating for a brand of eat-your-peas government nannying. He’s joined by the even more punitive Sarah Conly, who subtitled her most recent book Justifying Coercive Paternalism.

Just when you thought everyone in the charted world despised Michael Bloomberg’s Big Gulp ban, academics like Sunstein and Conly appeared at the chalkboard to give it an intellectual sheen. Conly’s most recent op-ed defends the Bloomberg ban, arguing that its social benefit outweighs its cost to liberty.

Enter the new paternalism, not the same as the old paternalism. Today’s finger-waggers aren’t trying to bring back Prohibition or enact other crushing restrictions on things they don’t like. They don’t want to build a utopian society from the ground-up, as behaviorist B.F. Skinner described in his book Walden Two.

Rather, they want what most technocrats want: to use science – in this case, behavioral science – to sculpt regulations that do the most good for the most people. They see themselves not as authoritarians, but as pragmatists, looking down at the societal sandbox and moving grains around in ways that improve our lives.

Their philosophy is riddled with holes. And as long as they’re finding a platform in no less than the mayor of New York City, we should examine why.

Both Sunstein and Conly contend that John Stuart Mill’s famous harm principle, as outlined in his treatise On Liberty, is wrong. The principle states:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or mental, is not a sufficient warrant. 

In other words, government can only intervene to stop you from doing harm to someone else. Let’s agree with the paternalists here. There are some things that don’t harm others, but that society should still prohibit. In a swashbuckling marijuana debate with approximately 700 libertarians at the Reason Foundation a few weeks ago, our own Matthew Walther brought up necrophilia to dash the harm principle; having sex with a corpse, even if the deceased consents before death, is simply too degenerate to be allowed in a civilized society.

But the new paternalists go much farther than this. They argue the harm principle is flawed because people are subjected to certain cognitive biases that prevent them from doing what’s in their best interest. Recent behavioral findings, according to Sunstein, “show that people make a lot of mistakes, and that those mistakes can prove extremely damaging.” Government, then, must intervene in order to help people make good decisions. Sunstein prefers that we be “nudged” towards good choices by a state that provides the architecture to make those choices preferable and easy. Other paternalists think we need to be pushed a little harder.

Either way, this is stupendously bad logic. As Jean Yarbrough wonders: “If we ordinary humans suffer from cognitive biases that undermine our judgment, don’t these supposed experts as well? Why, then, should we trust them to do any better?” Public officials, as the late James Buchanan demonstrated, act in their own self-interest, not the common good. And even if they didn’t, you and I are only making decisions for ourselves. New York City regulators make decisions for 8 million residents; federal regulators for 312 million. The notion that anyone can rationally play daddy for that many people is nonsense.

Still, Conly thinks this is all rather simple: “[S]uccessful paternalistic laws are done on the basis of a cost-benefit analysis: if it’s too painful, it’s not a good law.” But no one can accurately calculate all the costs and benefits for millions of variegated individuals. We all have diverse needs and preferences; something that’s a mere annoyance to one person might be lashingly painful to another. Consequently, regulators who try one-size-fits-all policies often end up with unintended consequences they never imagined possible.

Even uncontroversial examples of government nannying, like the federal crusade against smoking, aren’t as clear-cut as they seem. My favorite study of all time comes from scholars Charles Baum and Shin-Yi Chou, who found that smokers were 7.8% less likely to be obese and that the decline in smoking was the single most significant factor in explaining America’s obesity problem. Tobacco makes you sexy! The point, of course, isn’t that we should all stampede to the nearest CVS and pick up a carton of Marlboros (though an occasional two on a cool night hits the spot). But the anti-tobacco paternalists never calculated that by tamping down smoking, they would help cause an obesity crisis. Having “solved” a problem, they created another one, which we must now allow them to “solve.”

But let’s set all that aside for a moment and pretend that paternalism is a green-eyeshades matter of costs and benefits, and that government officials act competently. That still doesn’t mean we should surrender our freedoms to a hive of regulators. A crucial part of life, whether we like it or not, is that there are consequences to our actions, whether from imbibing too much alcohol or drinking too much soda. Overcoming these challenges and learning temperance makes us stronger, and we shouldn’t neuter ourselves by letting government achieve that for us. The colorful pantheon of life experience can’t be squeezed into cold technocratic policies.

Also, indulging moderately in our vices is enjoyable, something that doesn’t figure into the paternalists’ math equations. As Adam Carolla said in a rant about public beach regulations, “It is true we’ve eliminated every possibility of somebody being concussed by a Nerf football, but we’ve also eliminated all possibility of fun.” If a family’s idea of fun is going to 7-Eleven for Big Gulps every Sunday after church, for goodness sake, leave them alone.

The solution is neither extreme libertarianism nor paternalism. Rather, it’s a cautious and civic-minded attitude among regulators, who defer to liberty first and only intervene if others are being harmed or if it’s absolutely necessary to preserve public virtue. We don’t need necrophilia. But we also don’t need Cass Sunstein nudging us around in his sandbox.

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