Save the children

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.

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.

WORLD: You thoroughly criticize the views of feminist Susan Okin, but you support (if it could be used only by traditional families) a proposal she has made to reduce the economic vulnerability of many mothers and children. What is this "shared income" proposal?

TUBBS: In homes with a traditional "division of labor," where the mother is a full-time homemaker, Okin argued that the mother should have a legal claim to half of her husband's earnings. That is, the husband's employer should be legally required to endorse his paycheck to both him and his wife, as a way of recognizing the social value of mothering and homemaking (and, as noted, to reduce the economic vulnerability of married women and children).

WORLD: Should cultural conservatives favor such a proposal?

TUBBS: It is an interesting proposal, and cultural conservatives could endorse it. But I doubt that such a proposal will succeed in any legislature. Today, many women, especially those with high-paying jobs outside the home, are likely to see it as unnecessary.

WORLD: How can voluntary religious exercises in public schools have a morally freeing effect on children?

TUBBS: In the West, religious observance has long been thought to promote freedom. Recall the words in the Gospel of John (8:23): "If you continue in My word, you are truly My disciples, and you will know the truth and it will make you free." This, again, is freedom in the positive sense. So when the Supreme Court says that voluntary religious exercises in public schools have an "indirectly coercive" effect, the Court is only telling part of the story. Religious observance helps many people to resist potentially destructive passions and impulses and therefore promotes their freedom.

WORLD: Now that our society has come so far in emphasizing individual freedom, do you think the genie can be put back in the bottle? Do you think it will be?

TUBBS: If I thought that change was impossible, I would not have written the book. Will adults in our society restrict their own freedom to promote children's welfare? Will the most important political institutions cooperate? American liberals have become so preoccupied with rights for adults that they cannot be expected to change course anytime soon. So in all likelihood, this struggle to promote children's welfare will be carried on by many different people who do not identify themselves with contemporary liberalism.