The NY Health Department wants to ban transfats in city restaurants. Not just requiring labeling and such (which is perfectly fine really), but bans ala the whole smoking deal. They are bad for our health, so this is deemed to be a good thing. I am sure why transfats in particular should be targeted. For instance, it has been noted -- and when we used to have weekly family meals there I didn't eat all day to enjoy the fact -- that restaurants often give out huge portions. This is one reason why we are a nation of fatties. I assume it might be useful -- for health reasons -- to require smaller portions. Of course, certain types of foods are inherently unhealthy. One can only make McDonalds so healthy after all -- yes, even without transfats or by providing salads and such.*
I was never a big fan of the smoking ban. My sister (the one who doesn't smoke) hates smoking, or even the sight of an ashtray used to hold keys and such. Others do too ... they find the smell etc. offensive, and surely those who work where smoking occur would agree, especially since they have to breathe the stuff regularly. This approaches a reasonable justification -- an easy case would be airplanes, confined places that generally involve short periods of time (putting aside long flights ... I wonder how international trips, especially those favored by Europeans, handle things). Restaurants, however, open a mixed case. Surely, we are starting to get to "warning Bill Robinson" territory when we are dealing with bars. But, putting aside certain special cases, there are not exceptions. A few places in the country go further -- making a small town smoke-free or maybe even talking about residences.
I'm of the sentiment that a place as big as New York City can have some eateries where smoking is allowed, especially if we are talking separate rooms or even floors. It seems to me a matter of property rights mixed with individual liberties ... some people actually do like to smoke and associate with such individuals. They should not be required to go to cigar bars or something to do so. As to health, certain professions are unhealthy to various extents. For instance, many people who work outside have to inhale loads of car exhaust fumes. Don't get me started about various industries, especially in the current era of less concern for ergonomics and such. (Scalia's son, are you listening?) So be it. The arguments have been made and are credible.
But, this goes too far. It is the sort of thing those against smoking bans raise as a worse case scenario, which some laugh off as unlikely, others deep down find quite reasonable. The government should not micromanage what we eat. This is the sort of private choices that we make, involving matters of health and enjoyment that is really no business of the government. In a law review article he wrote after leaving the Court, Justice Clark dealt with matters of privacy and morality as connected to abortion and such. Expanding upon the "right of privacy" expressed by Griswold v. Connecticut (Clark was the only justice firmly with Douglas ... three others joining the opinion but also taking part in a separate one based on the Ninth Amendment), Clark spoke of broad privacy rights that would include such things as diet. "[T]he freedom to care for one's health and person...." Doe v. Bolton, (Douglas, J. concurring) (he also quotes Clark as did many lower court abortion opinions).**
[I also now recall a favorite quote from Godless Constitution, which reflects how religious freedom fits into a broader enlightenment era principle of liberty. The scientist/philosopher Joseph Priestley spoke about how the state had no business being involved in his religious beliefs, no more than they had a right to interfere with his choices respecting food and medicine. I reckon this included his right to buy fatty foods on his travels. We regulate, most likely overregulate, medicine these days. Food might just be the next step, but it is a pretty distressing one.]
Smoking raises problems of third parties. Since few things do not, I do not necessarily think this is a total trump. But, it does help to justify regulation. Fatty foods are rather different from smoking in this respect. My eating transfats is not unhealthy for other people as well, except to the point that a shortened lifespan might hurt family members and so on. Also, there is an overbreadth problem here -- why exactly should we focus on this one particular issue? If we accept, and we must, that determining one's diet is a very personal thing (it is rather important to culture and so forth as well), limitations need to be reasonable. If mommy state is going to tell us to eat our vegetables, it cannot just target those high in iron or something. No half measures here.
Just tell us what to eat. No, make us eat healthy. You tell us all the time, but who listens, right? Now some might say restaurants are different -- they are public accommodations are allowed to be more intimately regulated. But, supermarkets are comparable in this respect, right? You cannot be kept from Pioneer or Shop and Stop because of race or gender, right? Likewise, as shown in the medicinal marijuana case, we saw how broadly the government can regulate commerce overall, including what one's grows and maybe even simply possesses. After all, those potatoes you are cooking at home with transfats just might be sold elsewhere. If you have too much ala pot, you might have the intent to sell (trading for a casserole might be included here) to others. Clearly, a threat to public health.
I was thinking about the possible lengths of governmental power. While leaning against the doors on the subway (almost as good as a seat -- you can read and everything), I heard the automated message about not doing that. Being a rebel, I did not pay attention. But, let's say the door has sensors and there was a camera in each car. And, just as speeders might receive a ticket, what if I get something in the mail informing me that I was a scofflaw. Shades of Demolition Man (with tickets for saying bad words and such). The Orwellian possibilities are quite possible to imagine. Employee tracking, including at times determining if one smokes at home and so forth, suggests it is not all pie in the sky.
Not quite there yet, Joe. But, I would find tell me what to eat -- putting aside poisons and such obviously -- about equally as offensive. After all, there is some reason why you are not supposed to lean against doors, including safety and keeping clear exit pathways. Sort of a weak third party danger issue. Not quite the case here.
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* My normal breakfast of a coffee and a muffin also isn't that healthy. No one said vegetarianism is healthy per se people. It is a nice dodge when explaining why you chose a path that some people find akin to fundamentalism ... well, it is for health reasons, right? No ... no health nut here.
** "Religion, Morality, and Abortion: A Constitutional Appraisal" (1969). The article is generally cited, as was the case here, for its principle that life does not begin at conception, only the potential for life that takes time to develop before having rights the state must respect. Thus, "life" here has a certain meaning. Also, birth need not be the dividing line -- in fact, one source that cited the article noted that it argued for some legislative flexibility on where to draw the line. Justice Douglas himself while the abortion decisions were formulated once noted that he would "favor the first trimester, rather than viability." [The Douglas Letters, edited by Melvin L. Urofsky.]
I have yet to find a full copy of the article, online or on Lexis. The "Abortion Reader" I mentioned also did not excerpt it, which is somewhat unfortunate given its importance at the time.