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Freedom’s Orphans: Contemporary Liberalism and the Fate of America’s
by David L. Tubbs
Princeton University Press, 2007
(232 pages, $27.95, hardcover)
reviewed by Gerald J. Russello
Modern liberalism sometimes seems eminently practical, even attractive: A community of free and equal citizens, each (reasonably) exercising his choices as he wishes, so long as those choices do not harm others, with the government there to ensure that no one vision, or any vision, of the good life is imposed on others or considered superior to any other.
But people are not built that way, and the liberal vision of individuals does not reflect people as they really are. People are members of communities, in particular, of families. The inclusion of children in a family erases the liberal dream of a society of fully rational adults, each individually ordering his own affairs. Children are dependent, and their needs burden, and sometimes oppose, the needs of the adults caring for them.
Yet the influence of thirty years of liberal theory remains embedded in our law and public culture. Often forgotten in political and academic discussions of individual rights is the fact that there are members of society who are not developed enough to exercise their rights. Liberal theory has little to say to (or about) them.
Liberalism has had no coherent answer to the needs of children and other dependent persons to be cared for or protected, especially when doing so would limit (by law or otherwise) the free decisions of liberal adults. In this provocative book, David L. Tubbs exposes liberalism’s neglect of children in its understanding of society.
Tubbs, a professor at King’s College in New York City and a fellow of the Witherspoon Institute, begins with the English philosopher Isaiah Berlin’s influential 1958 lecture, “Two Concepts of Liberty.”
Perhaps responding to the struggle against totalitarianism, Berlin focused on what he called “negative liberty,” which, in essence, means liberalism as we know it: One’s right to pursue his own life however he chooses, even if others think his choices dangerous or wrong-headed. Negative liberty recognizes, for Tubbs, “a realm of personal inviolability, a private sphere beyond the reach of the state. Violating that sphere, regardless of the good that might accrue to the state or other citizens, would degrade or deny the victim’s humanity.”
Contemporary liberals have taken this one step further, into what Tubbs calls “moral reticence.” This is the reluctance—or in some cases, such as that of influential philosopher Thomas Nagel, the inability—to see the “difference between the good and bad use of legally protected freedoms.”
In other words, once liberal theorists have demonstrated to their satisfaction that a given behavior—the use of pornography, say, or no-fault divorce—must be legal, their analysis ends. They have nothing more to say about whether such activities should be discouraged in other ways, or even whether they can tend to denigrate liberty or harm those (such as children) whose personalities are not yet fully formed.
But Berlin also discussed positive liberty, which Tubbs characterizes as “the longing to be one’s own master and to develop and exercise some distinctly human capacities.” Modern liberalism does not quite know what to do with positive liberty, because it might lead to what Tubbs calls “paternalistic” or “intrusive” policies.
For some years now, liberal theorists have tried to base political life on negative liberty alone. Most of us, on the other hand, would agree that some “paternalistic” policies—say, those establishing compulsory schooling—are valuable, even though they cannot be justified only in terms of negative liberty.
Positive freedom is crucial to the development of free citizens, because the individual who would be his own master needs to be able to resist temptations that would ultimately destroy his liberty. Liberalism needs to start with a societal determination that children are worth care and protection, acknowledging that they must be taught about, and even be prevented from performing, acts that would destroy their liberty when they become adults.
The failure of liberalism to recognize that some attributes are necessary for freedom and deserve societal support, most evident in its neglect of children, is what Tubbs calls its “moral reticence.”
Tubbs then shows, in a scholarly demolition of feminist theorists like Susan Okin, that feminism, too, overlooks the interests of children in favor of a somewhat ho-hum version of negative liberty. The feminist view emphasizes choice over the consequences of choice, such as children and the quality of their lives.
Tubbs claims that children are entitled to the resources of the parents who have begotten them. Therefore, the state can rightly, through normal democratic processes, enact laws to help children flourish as they grow into adults, even if such laws conflict with negative liberty.
Turning to constitutional law, Tubbs argues that over the last forty years, liberalism in its negative form has embedded itself in American jurisprudence. He begins with Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International, which, in the name of an inviolate “right to privacy,” made it impossible for states to regulate contraceptives.
These decisions remain striking: They not only are in sharp contrast to then-conventional constitutional interpretation, but they also, as Tubbs shows, reject American jurisprudence’s traditional understanding of the police power, at least with respect to non-economic liberties. (Liberals tend not to disparage laws requiring seatbelts or health regulations, though they, too, can restrict one’s negative liberty.)
The traditional understanding allowed states to regulate behavior to protect the health, safety, or morals of the people. As Tubbs shows, in the early twentieth century, this included protecting children through the furthering of the two-parent family.
To do that, many states limited contraceptive sales or distribution. One can disagree with this approach, and Tubbs himself says that, given current mores and attitudes, he would not try to re-impose such restrictions. However, the fact remains that, according to the rationality standard for use of the police power, there was (and is) nothing invalid or unconstitutional about these laws.
Adults over Children
Most critiques of these cases are satisfied with highlighting the vagueness of the “right to privacy.” Tubbs goes one step further and presents a full-throated defense of laws protecting families as families.
The Supreme Court’s reasoning in these cases omitted any consideration of the rights of children to be born into a world where their welfare is considered equal to that of adults. Justice William Brennan’s opinion in Eisenstadt, Tubbs writes, represents a worldview in which “the happiness or subjective satisfaction of adults is presumptively more important than the needs of children.”
As a group, these cases have effectively prevented states from protecting the two-parent family. Further, Tubbs shows that the reasoning of these cases has been extended to include other types of family arrangements in which the “right” of adults to seek out whatever relationships they wish trumps the right of children to a healthy environment in which to grow, including the right to the resources of both parents.
By so reasoning, the courts and liberal scholars have neglected to credit the place of positive freedom in a free society. And there has been a cost. The last four decades have demonstrated the connection between family breakdown, encouraged by public policies and social attitudes reflecting a belief in the necessity of negative freedom, and the diminished ability of children to live full lives.
While it would be simplistic to attribute the social dislocations that began in the 1960s solely to the contraceptive cases, Tubbs’s point is that the liberalism of which those cases are influential examples made it impossible for state or local governments to impede on individuals’ free choices even to protect children and families.
The confused attitude of liberalism toward children becomes evident when one compares the Supreme Court’s view of children in religious liberty cases with its view of them in free speech cases involving pornography.
In religious liberty cases, such as Lee v. Weisman (which involved public prayer at a middle-school graduation), the Court treats religious expression as something that children cannot handle on their own. Accordingly, says the Court, the government may eliminate religious expression in public forums to protect children from “indoctrination” or “coerced” participation.
However, when the subject is pornography (or violence, a subject Tubbs, perhaps strangely, does not discuss), children’s interests are sacrificed to those of adults, and they, or their parents, are expected just “to change the channel.” Justice Kennedy’s decision in United States v. Playboy Entertainment Group in 2000 rested on the assumption that children (or their parents) could simply turn off the offending content, and so the state need not trouble itself about its harmful effects.
In contrast, when the subject is religion, the Court apparently believes that children (or their parents) cannot simply “turn it off,” and thus the state must step in to protect them. In other words, where troubling effects on children are the focus of the Court’s rulings in religious liberty cases, they are ignored or disregarded by the Court in its free speech jurisprudence.
Freedom’s Orphans tackles the central problem of contemporary liberalism: It promotes individual freedom, but it declines to value institutions, such as the family, that can give individuals the necessary tools to fully appreciate that freedom and develop the character to use it well. The moral reticence Tubbs identifies has resulted in jurisprudence and social policies that have served only to further destroy those institutions, causing great harm to those too weak to resist.
Information on the Witherspoon Institute, on whose board our senior editor Robert George serves, can be found at www.winst.org.
Gerald J. Russello is Editor of The University Bookman and a Fellow of the Chesterton Institute at Seton Hall University.