Culture > Books
Dane Cooper

Save the children

Books | Society's obsession with individual rights, says author David Tubbs, has taken a heavy toll on our youngest citizens

Issue: "The waiting game," March 22, 2008

David Tubbs contends in his new book, Freedom's Orphans: Contemporary Liberalism and the Fate of American Children (Princeton University Press, 2007), that the great expansion of individual rights in American law over the past six decades came with little attention to what the exercise of these rights means for children.

Tubbs, a professor at The King's College, New York City, criticizes liberalism's tendency to make freedom for adults trump competing social interests, including the well-being of children. He shows that liberal political philosophers and legal scholars have ignored or discounted some of the harmful effects on children arising from the exercise of these rights.

He also argues that the prevailing "nonjudgmentalism" in matters relating to adult sexuality has had negative effects on children, yet American society has never had a sustained political discussion about (for example) the proper limits of adult freedom to produce and distribute films portraying sexually sadistic actions.

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WORLD: When should the well-being of children take precedence over competing claims of freedom for adults?

TUBBS: When adult freedoms conflict with social goods that relate to children's well-being, the conflict should ordinarily be resolved by legislatures, not courts. Both state and federal courts now routinely make policy on matters that used to be the prerogative of the legislature.

WORLD: Not a recent development . . .

TUBBS: This change did not occur overnight, and it was not inevitable. Perhaps the best example of this is the "right to privacy"-a judicially invented right that has been used to legitimate the sexual revolution and "discount" important interests of children.

WORLD: When has the U.S. Supreme Court tended to describe children as morally and psychologically frail, and when has it often looked at them as morally sturdy and resilient?

TUBBS: We no longer have religious exercises in public schools partly because the High Court has said that children who don't want to participate in the exercises can be "indirectly coerced" into participating. To accept this theory of "indirect coercion," we must assume that children are psychologically and morally frail. That is a broadly accurate characterization of children, but the Supreme Court should be consistent in applying it. When, for example, the Court decides cases in which adults assert free-speech rights to pornography and children are exposed to such images, the Court usually depicts children as morally sturdy and somehow "inoculated" against pornography. This is a huge inconsistency in First Amendment law-can't the Supreme Court see it?

WORLD: What's the difference between positive and negative freedom?

TUBBS: The more widely known idea is "negative": It means "absence of restraint" or "the liberty to choose." But there's another idea of freedom, the "positive" notion. It means "self-governance." We can grasp this idea if we think of persons becoming "enslaved" to dangerous passions-such as drink, drugs, or pornography. This idea of freedom makes it easier, for example, to justify laws that ban the sale of addictive drugs (even though these laws restrict choice), because a person who becomes addicted is no longer "self-governing."

WORLD: We want children to become accustomed to freedom in the positive sense . . .

TUBBS: Education promotes self-governance, and we don't let children choose whether they will be educated. Instead, we require schooling, because an illiterate person is radically dependent on others and therefore "unfree."

WORLD: If we support some anti-pornography laws with the goal of protecting children, will the left attempt to pass laws purportedly defending them from mental duress by restricting evangelism?

TUBBS: This is already taking place. In the last decade or so, liberal scholars and activists have argued that religious observance can have negative effects on children. Unsurprisingly, they want to limit the authority of religious schools and religious parents who educate their children at home.

WORLD: Children have the right to be free from parental teaching?

TUBBS: Yes, most of these arguments are being done in the name of "children's rights." Despite my interest in children's welfare, I oppose the idea of assigning more rights to them. American history shows that we can talk about children's well-being without assigning a large number of rights to them. So we don't need to move in this direction.

WORLD: What do you say about the danger of giving government officials-say, a Hillary Clinton or a Barack Obama, or the judges they would appoint-too much power to make decisions about what should be allowed?

TUBBS: This question points to the importance of judicial nominations and appointments. In my book, I distinguish between "classical liberalism" and "contemporary liberalism." Contemporary liberals tend to think that personal freedom for adults is presumptively more important than any competing social interest, including many pertaining to the welfare of children. Classical liberals have a broader understanding of the public good and are less likely to accept such a presumption. So we need to appoint judges who reject, or at least question, that presumption. If we don't appoint such judges, the tendencies described in my book will only worsen.

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