ANALYSIS/OPINION:

What if a dictator in America used the force of law to tell you what to eat? What if the same dictator told you what to drink? What if the dictator told you the sizes of the containers in which you could purchase a lawful beverage? What if the dictator just made up the rules according to his own personal taste? What if the product he regulated was lawful, sold nearly everywhere and consumed by nearly everyone? What if that product came in flavors and degrees of sweetness the dictator didn’t like? What if that product was part of a huge national market that provides choices to consumers and jobs for those who want them? What if that product was simple soda pop?

What if the dictator declared that you could consume all the soda pop you wish to consume, but you need to purchase it in small containers? What if the enforcement of this container-size rule raised the price of soda pop? What if the container size was just something the dictator dreamed up? What if the dictator thought his judgment was superior to yours with respect to deciding what you should drink and how you should drink it?

What if the dictator pretended his container-size restrictions were based on sound science? What if he hired and appointed medical personnel who feared for their jobs if they did not agree with him? What if he ordered those people to support his container-size regulations whether or not they agreed that this is the proper role of government? What if he constituted these medical lackeys into a board of health? What if the board of health pretended it seriously studied the detrimental effect of sugar-based soda pop on human beings but never did?

What if the rules for container size were written in secret? What if those rules were so complicated that a judge concluded they would be impossible to enforce? What if the rules only applied to certain drinks, such as soda pop and coffee, but not to others, such as chocolate milk and alcohol? What if the rules only applied to some stores and shops, but not to all? What if the rules were so ridiculous that in order to buy a cup of coffee larger than 16 ounces, they required you to put milk and flavoring and sugar in yourself, and the seller of the coffee could not lawfully help you or do so for you, even at your request?

What if, under the fundamental law of the land, the dictator was not authorized by law to write laws, but only to enforce them? What if the dictator knew that the governing body elected by the people to write laws would never write the laws he wanted because its members like power and fear losing it, which could happen if they try to tell the voters who elected them how to live? What if the dictator never presented his proposals on sugar-based drinks to the elected governing body because he knew they’d be rejected?

What if the dictator was more interested in his own legacy as a reformer than in personal liberty in a free society? What if he thought he could write any law and regulate any event because his knowledge of human behavior and unintended consequences was superior to that of the people he swore to serve?

What if the same dictator once made campaign contributions to members of the governing board so that they would change the fundamental law of the land — which only the people directly can lawfully change — so as to let the dictator stay in office longer than the fundamental law permitted? What if that law could only be changed by the voters themselves, but the dictator persuaded the lawmakers to take his campaign cash and change the fundamental law for him? What if the dictator was very unpopular but continued to impose his will on the people because he desperately wanted a legacy?

What if some people who sell soda pop challenged the dictator in a court he did not control? What if a judge of that court told the people they could buy soda and coffee in whatever sizes it was sold because the dictator did not have the power to regulate their intake of liquids? What if the judge even recognized that there are areas of human behavior immune to regulation by the government?

What if all of this really happened? What if this is not a fable, but a fair recounting of life today in America’s biggest city? What is the state of human freedom in New York City when the mayor can tell people what soft drinks to consume and how to consume them, and the voters let him do it? What will they let the government do to us next?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the author of seven books on the U.S. Constitution, including his latest, “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom” (Thomas Nelson, 2012).

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