Freedom for adults can mean misery for children.
Apr 28, 2008, Vol. 13, No. 31 • By RYAN T. ANDERSON
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.