Michael Bloomberg is as notorious as any American politician of our time. The New York Mayor’s recently proposed ban on “sugary drinks” larger than 18 ounces is the latest example of nannyism that has included a ban on trans-fats and a threatened ban on salt in food preparation. However, the soft drink ban stands out as almost charmingly arbitrary. Sodas and sweet teas are affected, but not fruit smoothies, for example, which are highly caloric. The ban applies to restaurants, but not grocery stores. And it is entirely possible that vendors will simply offer special deals on multiple small drinks, though they would risk the wrath of what might be called food fascism.
People whose livelihoods are not directly tied to New York City’s hospitality and tourism industries may not live in fear of Mayor Bloomberg’s edicts, but the fact is that they are backed up by force. Non-compliance will result in fines and other penalties, which if ignored will result in arrest, which if resisted will result in the initiation of force by law enforcement officials. Consider that term: law enforcement. The law is effected by the police force, not the “police suggestion.” Said body is given an awesome responsibility, a monopoly on the initiation of force in civil society.
This is a serious matter, which is why every law must have some sort of legal justification. The Fifth Amendment, which applies to state and local governments according to a process of incorporation under the Fourteenth Amendment, forbids the deprivation of rights to life, liberty, or property without due process of law. Thus, there must be a compelling state interest in the prohibition of certain businesses from selling certain sugary drinks of a certain size. The interest Mayor Bloomberg cites is promotion of the general welfare.
According to a report in the news service that bears Bloomberg’s name, the ban “is among strategies to combat what the administration has described as an epidemic of obesity and related illnesses such as heart disease and diabetes.” For the sake of argument, I will concede that this measure will have an effect on obesity which yields economic benefits exceeding its costs. However, even if this ban is truly utility-maximizing, its legal justification reflects an impoverished understanding of constitutional language.
The General Welfare Clause, which is related to the Federal government’s powers to tax and spend, was explained by Thomas Jefferson in the following manner: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.” Note that he specified the welfare of the Union, not of the polity or individual citizens of the United States.
Just as the Commerce Clause was intended to promote economic openness and equal dealing among the several states (the Constitutional Convention sprang largely from a dispute between Maryland and Virgina over economic rights to use of the Potomac River), the General Welfare Clause reflects a presumption of the states’ legal equality before the federal government, and their mutual recognition of each others’ sovereignty. The Commerce Clause empowers the federal government chiefly to ensure that states are economically open to each other; the General Welfare Clause guards chiefly against favoritism on the part of the Federal government in this role. The substance of this view was endorsed by James Madison, “The Father of the Constitution,” in one of the Federalist Papers.
Claims that the bedrock of our society is in fact a living, breathing document speak to a kernel of truth. Jefferson himself said, “laws and institutions must go hand in hand with the progress of the human mind. … Institutions must advance also to keep pace with the times.” However, Mayor Bloomberg’s justification for his paternalistic policies bears no relationship to the General Welfare Clause—or any other. He should take a break from writing laws to read the Constitution and some American history.