In today’s New York Times, philosopher Sarah Conly gives “Three Cheers for the Nanny State,” specifically, NYC’s famed big soda ban. Invoking aspects of the theory of “nudge,” made popular in a book by Richard H. Thaler and Cass R. Sunstein, Conly argues that, sometimes, the government can rightfully save us from ourselves.

The popularity of “nudge theory” is closely tied to the recent spate of popular science books on the foibles of the human brain. Books such as Predictably Irrational and A Mind of Its Own are part of a new self-help fad: the idea that scientists studying the error-prone human brain can help us understand why we are unable to quit smoking, lose weight, and many other common problems.

It was only a matter of time until government regulators and their champions embraced this new science in order to put a fresh spin on an old impulse—their never-ending desire to save us from ourselves. But despite the valid insights of cognitive neuroscience, both nudge theory and Conly’s editorial are no more defensible than any other paternalism. We should not be deceived into believing that there is any new wine in those old wineskins.

The error at the heart of nudge theory is that scientists and regulators can discover what our true preferences are absent a choice that reveals those preferences. Traditional economics relies on the theory of “revealed preferences”—the idea that our choices reveal what, at that moment, we really want. This is not to say that we might later regret those choices or that some of those choices may be bad for us. Instead, it merely says that, given the information and desires you had at the time, your choice revealed your preference.

Nudge theory holds that “true preferences” can be discovered in a different way: by mapping the conditions under which we are prone to error and then divining our true preferences by asking what our choices would have been but-for those systematic biases. What results is not the traditional type of paternalism that imposes the preferences of regulators upon the citizens; instead it is new type of paternalism that imposes your “true” preferences upon yourself.

Do you constantly say you want to lose weight but never can find the time to exercise, or perhaps today was just a day when you really wanted a cheeseburger? Well, then regulators can help you achieve your true preferences. Do you wish you could quit smoking but the pressures of each day are made easier by cigarettes? Well, they can help you with that too.

The fundamental problem: Is there any reason the “you” who says he needs to lose weight is more “true” than the “you” who has a cheeseburger? Do you even know which preference is your “true” one? Does that question even make sense? The secondary problem: Is there any way for regulators to discover which is the true “you” and any reason for us to believe they have the incentives to do so? Moreover, can we trust them to not succumb to their own cognitive biases as they help nudge you onto the path towards your “true” self?

In Conly’s words, “the crucial point is that in some situations it’s just difficult for us to take in the relevant information and choose accordingly,” therefore “we need help.” And although she admits that it is not “always a mistake when someone does something imprudent,” the “needs of the majority” must be taken into account.

Although it is not explicitly stated, Conly is discussing costs imposed on “the majority” via the medical system, at least in the context of the big soda ban. Without these shared costs, Conly’s argument is much more difficult to make. With these shared costs, however, there is no personal lifestyle choice that cannot, on principle, be regulated under the theory that the “needs of the many outweigh the needs of the few.” And the Affordable Care Act is only increasing the collectivization of our health-care costs.

Conly hopes to avoid this slippery slope problem by invoking the rationality of regulators, which is a particularly odd thing to do in an opinion piece mostly dedicated to the irrationality of human beings. We need not worry, she says, because “successful paternalistic laws are done on the basis of a cost-benefit analysis: if it’s too painful, it’s not a good law.” Yet the painfulness here is, of course, subjective—for example, the pain of not being able to purchase a big soda or a pack of cigarettes. Yet these are exactly the sort of subjective pains that Conly and other proponents of nudge theory are prone to explain away by saying they aren’t “true” preferences.

And even if the slippery slope were true, argues Conly, “Banning a law on the grounds that it might lead to worse laws would mean we could have no laws whatsoever.” Here, again, she misses the point. We can ban laws that have no conceivable limiting principle, are based on faulty assumptions about human nature, and infantilize adults into wards of the state without worrying about undercutting all laws. 

Finally, Conly does not touch upon the broader consequences of having the government treat adults like children who do not know what is best for themselves. There is immense value in having decisional autonomy. John Stuart Mill, who Conly strangely invokes to justify her vein of paternalism, would have found her program abominable. In On Liberty, Mill wrote:

If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode. Human beings are not like sheep; and even sheep are not undistinguishably alike.… If it were only that people have diversities of taste that is reason enough for not attempting to shape them all after one model. But different persons also require different conditions for their spiritual development … 

In other words, free choice is also valuable because it is your choice. But it is not surprising that Conly disagrees, seeing as she is the author of Against Autonomy: Justifying Coercive Paternalism.

The new paternalists are no different than the old paternalists. By invoking new scientific studies new paternalists hope to make their programs both easier to swallow and harder to see. While we sometimes might need to be saved from ourselves, that’s what family, friends, churches, and community are for. If the new paternalists takeover, however, who will save us from them?