Freedom for adults can mean misery for children.
Apr 28, 2008, Vol. 13, No. 31 • By RYAN T. ANDERSON
"Won't somebody please think of the children?!" That the writers on The Simpsons chose this exclamation as the representative "family values" battle cry reminds us that, when child welfare advocates open their mouths, many hear the hysterical plea of Reverend Lovejoy's wife. But what happens when a whole society operates on the assumption that Helen Lovejoy is a crank--that kids will be fine no matter what adults do?
Of course, most Americans do not, in fact, believe this. But it appears that much of elite America does. And according to David Tubbs, our courts and universities fail to adequately take the needs of children into account. In championing vast personal liberty for adults, he contends, postwar political theorists and jurists have left children to fend for themselves. And this new volume delivers a scorching criticism of modern political and legal theory and practice.
Tubbs differs from the Lovejoys in two crucial respects. First, as he notes, his "book contains no religious 'agenda'" and makes no theological arguments. In fact, Tubbs was inspired to write it by his entirely secular government job as a child-support investigator. It was there that he realized that "contemporary liberal thinkers were minimizing or denying the importance of what were previously considered essential elements of children's welfare." In graduate school at Prince-ton--a doctorate in political theory being the second difference from either Lovejoy--Tubbs then developed a penetrating response to modern liberalism. Now he is a fellow of the Witherspoon Institute and professor at King's College, Cambridge, and Freedom's Orphans is the first fruits of his labors.
We all know that children differ from adults in many crucial ways. Besides their evident physical immaturity, Tubbs reminds us, children are "mentally, morally, and emotionally" underdeveloped. Unlike the autonomous, self-sufficient adults at the focus of modern political and legal theory, children are highly impressionable and depend on others for everything--and not just material goods. Their central need is a proper upbringing so that they can become self-reliant adults.
Liberals used to recognize this, urging special care for those whom Hubert Humphrey described as being at the dawn of life. But over time--especially in the wake of the upheavals of the 1960s and the rise of "Me Generation" ideology--liberal thinkers made adults' personal freedom central. Well-intentioned and initially subtle, this shift ultimately produced contemporary liberalism's marriage to lifestyle liberation, "a preoccupation with rights for adults" and disregard of "competing social interests, including some fundamental to children's welfare."
Tubbs traces this development to Isaiah Berlin's famous 1958 essay, "Two Concepts of Liberty," which advanced the idea that "negative" freedom was (in Tubbs's words) "more humane and more likely to further human dignity." Tubbs describes "negative" freedom as "unhindered choice," the result of "moral reticence," the reluctance to "distinguish between the good and the bad use of legally protected freedoms."
In the face of Soviet impositions of "the good life," Berlin's fears were understandable. Less explicable, however, is why current theorists such as Amy Gutmann think it impossible to "specify objectively the good life" or why George Kateb argues that "there is no good life." All of this is in stark contrast to the traditional conception of liberty, so-called "positive" freedom, which Tubbs describes as "self-governance or self-direction," the freedom to resist temptations, irrational desires, and external pressures in order to guide one's own actions toward authentic fulfillment. Surely, Tubbs insists, we can distinguish "better lives from worse lives."
"Negative" freedom seems to have won the day, however, and what Berlin started in political theory Ronald Dworkin has championed in legal -theory. Arguing for a "moral" reading of the Constitution that seeks to treat all people and their choices with "equal concern and respect," Dworkin claims that paternalistic laws (against prostitution, for example) and content censoring (of pornography, for example) are unjust. Since freedom should be understood in a "negative" sense without any reference to good or bad, the state can make no law that shows preference or disdain for citizens' choices.
One problem here is that these theories recognize no one but the self-sufficient, autonomous adult. As Tubbs notes, there is an inexcusable failure among "jurists and political theorists to consider the interests of children in even a perfunctory way." Dworkin's major work, Freedom's Laws, makes almost no mention of children. So if Dworkin is to show all citizens "equal concern and respect," what about children's unique needs? Might the free choices of adults to broadcast pornographic images diminish children's ability to develop the self-control necessary for healthy adult relationships? And doesn't this show that some conception of human flourishing ("the good life") is required?
But emphasis on personal liberty isn't the only culprit. Another strand of late 20th-century thought--feminist political theory--has contributed significantly to the plight of America's children. Tubbs considers the work of one prominent feminist scholar, Susan Moller Okin, who argues that the archetypical figure in political thought is the adult man--women and children are ignored. To remedy this, she has developed some Rawlsian themes that just political regimes order inequalities to serve the least well off and keep positions of power and wealth open to everyone, and argues that the traditional family is unjust for limiting the role of women. She advocates a genderless society where women will be able to succeed on the same exact terms as men.
While some of Okin's goals may be admirable, she forgets that her feminist critique is supposed to be advanced on behalf of women and children. Her advocacy of equal respect for all family forms (including same-sex parenting and single motherhood "by choice") flies in the face of social science that shows children do best when reared by their married mother and father. Some aspects of "gender," at least when it comes to parenting, appear built-in. Moreover, Okin argues that single women have a right to bear children outside of marriage and then deserve vast governmental assistance. But Tubbs persuasively argues against "the idea that a benign and omnicompetent welfare state can assume the role of an absent parent in many thousands of households." He exposes Okin's failure to apply consistently her own principles of justice to meet children's needs.
Even more devastating is his scathing criticism of recent jurisprudence that assumes there is a constitutional right to nonmarried sex. He begins by discussing the "right to privacy" in connection to contraception. Though the rationale may seem foreign to most people today, states actually made laws against contraception in order to promote stable marriages and reduce fornication, adultery, and illegitimacy. Without contraception, people were less likely to sleep around. But in a series of cases beginning in 1965, the Supreme Court denied any legitimate public purpose in contraception laws, and manufactured rights--for married couples, then nonmarried adults, and finally minors--to sexual privacy and reproductive liberty that somehow excluded regulating the sale of contraceptives.
Tubbs observes a disturbing trend: The justices focused solely on the adults having sex and not at all on the children sex produces. Furthermore, little attention has been paid to the crucial distinction between the desirability and constitutionality of any particular law.
Tubbs also identifies a perplexing inconsistency in the Supreme Court's rulings: When it comes to First Amendment cases dealing with the rights of adults to "expression" (often in the realm of "indecency"), the Court regards children as psychologically and morally resolute, resistant to the raunchiest material, capable of simply "averting their eyes." But when it comes to First Amendment cases dealing with prayer in schools and other religious matters, the Court proclaims the same children to be impressionable infants defenseless against the peer pressure of praying classmates.
The Supreme Court gets the risks and benefits of sex and religion exactly backwards: Sexually explicit material has immediate sensual appeal, arouses without consent, and leads to a host of negative consequences when acted upon by teenagers. Meanwhile, religious activity normally requires a supportive community and significant prodding ("Say your prayers!" "Go to church!"), and social science reveals the great societal goods that religion serves. The only explanation for the Court's discrepancy is ideology--a sheer preference for the liberty of adults, when it comes to pornography, coupled with hostility toward religion in the public square.
In the end, Tubbs suggests that the negative effects suffered by children could be reduced if we realized that lifestyle liberty is not the only good at stake. While Tubbs does not suggest that children's needs should always come before adult interests, he urges political and legal theorists to embrace a pluralistic conception of value that includes adult and child welfare. Sacrifices and trade-offs will have to be made, but adults cannot always come first.
At times dry and unnecessarily detailed, Freedom's Orphans is nonetheless a critically important book that should spark debate within the academy, the courts, and our legislative chambers. It makes it clear that sexual liberation and secularist impulses carry a high price to be paid by the nation's children. Perhaps there is more to Helen Lovejoy's plea than we thought.
Ryan T. Anderson, assistant editor at First Things, is a Phillips Foundation fellow and assistant director of the Program in Bioethics at the Witherspoon Institute in Princeton, N.J.