民主主義に飲まれ、大にする

The New York City Board of Health's ban on large sodas, which was to take effect tomorrow, has been struck down by a state judge. Mayor Michael R.

Bloomberg ’s administration says it will appeal the decision —but for now, New York businesses will remain free to sell sodas in whatever sizes their customers want.

I’ve written on this blog that protecting businesses and their customers from legislation like this requires affirming the principle of individual rights —including the individual freedom to do what is unwise. (Drinking a quart of sugary soda twice a day is probably unwise.) People need to be able to run their own lives, and that means they need to be free to make their own decisions.

But the judge, Milton Tingling, decided the case on a different principle: the principle of separation of powers. He held , not that people have a constitutional right to buy and sell large sodas, but that only a legislature, not an executive agency, may decide whether to restrict soda sizes—at least given that the issue of what if anything government should do about obesity has been raised in both the state and local legislatures, and that fighting obesity doesn’t fall within the legislative grant of authority to the Board of Health. (Justice Tingling also argued that the ban was arbitrary and capricious because its loopholes and exceptions made it unfit for its purpose.)

This, of course, leaves open the possibility that the New York state or city government will try again to ban large sodas. And an interference with the individual’s ability to make his own health choices takes some of the sweetness out of life regardless of which government officials make that decision. But that doesn’t mean that keeping this decision with the legislatures is of no relevance to the battle over human freedom.

Ensuring that only democratically elected legislators can take away a right empowers voters to guard their own freedom. A Bloomberg spokesman once responded to opposition to the soda ban by saying the Board of Health was supposed to be immune to "political pressure."  Now it will be up to New York voters and their representatives how much sweetness—of soda and of freedom—they can get. And that means the question is no longer what the bureaucrats can do, but whether New York’s voters value the principle of freedom .

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