The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.
-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia
In Freedom’s Orphans, David L. Tubbs asks contemporary American liberals—can one take freedom too far? As he sees it, the question is simply “whether the exercise of certain freedoms by adults—including some freedoms having the status of constitutionally protected rights—may adversely affect children.” He centers his argument at the level of the most vulnerable because he is hoping to engage his opponents where they are most vulnerable. Can they draw no distinction between free speech and obscenity or distinguish between shouting vulgarities in public and expressing a political opinion? If Americans want to protect Huck Finn from censorship, must the law also protect pornography? The seeming inability to make these critical, commonsense distinctions in contemporary constitutional law frustrates average citizens, especially those attempting to raise children in a wholesome environment.
Tubbs attempts to engage liberals on their own terms. To do that, he asks why American liberalism, dominant since World War Two, has been incapable of making basic moral distinctions. While other scholars look to natural rights and the American founding, Tubbs knows that the very liberals he wishes to challenge do not find these arguments compelling. Similarly, he shuns both Leo Strauss’s and Alasdair MacIntyre’s return to classical and medieval philosophy. Tubbs finds their assessment of liberalism too harsh. He thinks that modern liberalism is not necessarily nihilistic, only accidentally so. While he acknowledges that his teachers—George Kateb, Judith Shklar, and Amy Guttman—are unable to envision a common good, he still thinks it possible to work within the premises of modern liberalism to argue for restraint. After all, liberalism had its moral triumphs in the past, such as the prohibition of child labor and the extension of the franchise.
Tubbs’ novel approach appeals to earlier heralds of liberalism who had no difficulty making moral distinctions. Benjamin Constant, John Stuart Mill, and to a lesser extent, Isaiah Berlin were all keen to preserve individual liberty, while recognizing the necessity of imposing some restraint. Tubbs spends the greatest time with Benjamin Constant’s 1816 address before the French Lyceum and Isaiah Berlin’s 1958 Oxford Address, “Two Concepts of Liberty.” Both grant individual liberty a wide berth. Constant says that modern liberty “is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even abuse it; to come and go without permission, and without having to account for their motives or undertakings.” The ancients, in contrast, only exercised their freedom collectively—deliberating together about the great matters of war and the distribution of honors. They had no conception of the individual, private sphere. For Constant, the challenge is combining the best of both worlds, to allow for private freedom of action without tipping into moral depravity.
As the champion of pluralism, Berlin is much admired by those with whom Tubbs most wants to engage, like Ronald Dworkin. Berlin, reacting to the totalitarian impulse, defends individual liberty, but shows that it must have limits. He says liberty requires
That no power, but only rights, be regarded as absolute, so that all men, whatever power governs them, have an absolute right to refuse to behave inhumanly; and second, that there are frontiers, not artificially drawn, within which men should be inviolable . . . rules of which it would be absurd to say, for example, that they could be abrogated by some formal procedure on the part of some court or sovereign body.
The problem of constitutionally protecting people who are behaving “inhumanly” is the subject of the rest of Tubbs’s work. While Tubbs expends considerable effort laying the common ground for a rapprochement between contemporary liberal thought and the protection of childhood, once he displays the results of liberalism on the law, the reader may wonder if he has set for himself an insurmountable task. He begins by assuming that feminist legal scholars might offer some insight. As a former child-support enforcement officer, Tubbs has seen first-hand the difficulties that unrestrained license has created for children and sometimes, their mothers. But his analysis of Susan Moller Okin shows that whenever the two principles of protecting children and advancing women’s rights clash, the latter always wins, even at the expense of consistency.
Okin and her students attack contract theory for failing to recognize that family life cannot be beyond the reach of politics, because for feminists, gender is a social construct. For them, law must intrude to ensure that neither sex is privileged. To Okin, if family life is private, then only men are allowed both a public and a private life. Women must be allowed utter freedom, which of course, extends to abortion rights. Tubbs rightly points out that Okin is only tolerant toward and therefore protecting toward certain lifestyle choices. By making women the equals of men, particularly in family law, the ones who lose are married mothers who stay at home to raise the children. But even more to the point, “[Okin’s] desire to eradicate gender exceeds her desire to promote the welfare of children and prevents her from seeing how these new family forms are likely to affect them.”
For Tubbs, children have the right to both a mother and a father, even if that frustrates either parent’s desires. That means that an enlightened society might go so far as to privilege matrimony and stigmatize bearing children outside of its protective bonds for the sake of child well-being. Okin and her feminist legal-theory colleagues cannot sanction such a view because they see all associations as political, i.e., subject to justice or requiring an equal distribution of goods. As Tubbs points out, marriage is not about an equal division of labor. In nursing a sick wife, for example, a husband does not expect vacation pay or even gratitude; rather caring for a spouse or family member, whatever may come, is above politics. That unequivocal commitment is absolutely critical when it comes to rearing children.
When Tubbs moves from theory to case law, the picture becomes bleaker. He looks to what used to be called birth control but now is deemed euphemistically reproductive rights, making Americans face the reality that unlimited access to contraceptives, regardless of age or marital status, has harmed children. He does not ask for the overturning of the precedents of the last two generations, but points to the incoherent stance of U.S. laws. Federal policymakers grant children access to free contraceptives without parental consent, but should those same children hear a prayer over a public school intercom, these same policymakers suppose they will be traumatized for life.
Tubbs is at his best when he catalogues the Supreme Court’s expansion and contraction of rights. He walks the reader through the expansion of free speech and the expansion of sexual freedom, both of which have had a deleterious effect on children. He contrasts this development against the Court’s overly anxious concern for the influence of religion on the young. Juxtaposing the various Court cases does not increase one’s respect for the judicial branch. He writes:
When deciding a case in which children are “incidentally” exposed to pornography or other “adult” stimuli, the Supreme Court sometimes assumes that the young are morally resilient beings whose welfare is not going to be unduly affected by coarse language, gratuitous nudity, or hard core pornography. In places, the court seems to assume that children are little Stoics and just as adept as adults at “managing their impressions” and “averting their eyes.” Yet when deciding cases involving young persons and a state-sponsored religious exercise, the court has characterized children very differently.
While he is clear that he is not implying that the Court thinks religion is more harmful than indecent material, he wonders why the strict standard developed in religious freedom cases have not been applied to other areas of expression.
Readers may wonder whether Tubbs truly thinks that the liberals with whom he wishes to engage are as intellectually honest as he seems to suppose they are. The evidence suggests not. Still, in his thoughtful critique in Freedom’s Orphans, Tubbs shows how liberal judges and policymakers have harmed children for the sake of adult pleasure. Americans should be able to understand that critique, even Americans who are not fully convinced that contemporary liberalism may be necessarily nihilistic.
Dr. Orr is the assistant dean for program development at Benedictine College in Atchison, Kansas. She served in the George W. Bush Administration at the U.S. Department of Health and Human Services as director of population affairs and as associate commissioner of the Children’s Bureau.