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Claremont Review of BooksTubbs has written a fine, valuable polemic, one that rightly highlights the precarious place of children in our promiscuous age.
— Dorothea Israel Wobon
Has contemporary liberalism's devotion to individual liberty come at the expense of our society's obligations to children? Divorce is now easy to obtain, and access to everything from violent movies to sexually explicit material is zealously protected as freedom of speech. But what of the effects on the young, with their special needs and vulnerabilities? Freedom's Orphans seeks a way out of this predicament. Poised to ignite fierce debate within and beyond academia, it documents the increasing indifference of ...
Has contemporary liberalism's devotion to individual liberty come at the expense of our society's obligations to children? Divorce is now easy to obtain, and access to everything from violent movies to sexually explicit material is zealously protected as freedom of speech. But what of the effects on the young, with their special needs and vulnerabilities? Freedom's Orphans seeks a way out of this predicament. Poised to ignite fierce debate within and beyond academia, it documents the increasing indifference of liberal theorists and jurists to what were long deemed core elements of children's welfare.
Evaluating large changes in liberal political theory and jurisprudence, particularly American liberalism after the Second World War, David Tubbs argues that the expansion of rights for adults has come at a high and generally unnoticed cost. In championing new "lifestyle" freedoms, liberal theorists and jurists have ignored, forgotten, or discounted the competing interests of children.
To substantiate his arguments, Tubbs reviews important currents of liberal thought, including the ideas of Isaiah Berlin, Ronald Dworkin, and Susan Moller Okin. He also analyzes three key developments in American civil liberties: the emergence of the "right to privacy" in sexual and reproductive matters; the abandonment of the traditional standard for obscenity prosecutions; and the gradual acceptance of the doctrine of "strict separation" between religion and public life.
"The trenchant questions that Freedom's Orphans raises about contemporary liberalism's potentially misplaced priorities are ones that readers of any political orientation would do well to consider."—Harvard Law Review
In this connection, consider the second of Ralph Waldo Emerson's two epigraphs to his essay "Self-Reliance" (1841):
Cast the bantling on the rocks, Suckle him with the she-wolf's teat; Wintered with the hawk and fox, Power and speed be hands and feet.
The irony of these lines serves several purposes. It points to the limits of self-reliance, perhaps as a way of tempering the enthusiasm of those readers well disposed to the essay. At the same time, the epigraph forestalls possible criticisms. Without it, some readers might complain that Emerson has forgotten about children and family life, an otherwise startling omission in a disquisition about the individual's relationship to society.
Besides being dependent on adults, children are impressionable. By definition, a child is underdeveloped in several ways: physically, mentally, morally, and emotionally. To say that an adult is mentally,morally, or emotionally underdeveloped often implies that he or she is also impressionable. In adults, such impressionability is considered regrettable (and sometimes a grave misfortune), but with respect to children, it is deemed unexceptional or natural.
These two themes are not unrelated. For good and for bad, a child's impressionability is in some ways linked to his or her dependence on adults.
Nearly two hundred years before Emerson's "Self-Reliance," the Dutch artist Jan Steen (1626-1679) completed a semihumorous painting, The Way You Hear It Is the Way You Sing It. Like many Dutch works of the seventeenth century, it is rich in symbolism, though what the painting says about moral education, human appetites, and the impressionability of the young is clear.
The painting depicts a family of three generations gathered for the festival of Twelfth Night. The grandfather of the family, a rotund man who has been crowned king of the festival, sits at the head of a small table set with holiday fare. Above the grandfather, an uncaged parrot, symbolizing mimicry, rests on its perch. The grandfather's wife sits across from him at the table and reads a nursery rhyme of the same title as the painting. Two younger women, perhaps the couple's daughters, sit between the grandfather and grandmother. The younger woman in the background has a baby in her lap. The younger woman in the foreground, only slightly less corpulent than the grandfather, holds a large goblet, being filled with the same liquid that seemingly caused her drunkenness. A beaker of this liquid stands on the windowsill.
Away from the table, on the right side of the painting, an apparently tipsy man stands near two boys and an adolescent playing the bagpipes. Thought by some scholars to be Steen, the man is showing the older of the two boys how to smoke a long and slender pipe; the younger boy awaits instruction. Behind him, the adolescent with the bagpipes plays a tune. His face appears flush, a detail whose meaning can be appreciated in light of the sexual innuendo associated with the Dutch word for "pipe."
Despite the passage of many years, Emerson's epigraph and Steen's painting still provide two useful points of departure for discussing the welfare of children in the modern world. Children are dependent, Emerson (indirectly) concedes, and some persons must care for them. Steen's painting reminds us that young persons, more than any others, do not on bread alone subsist.
These two points may be uncontroversial, but controversy can quickly arise when we discuss what the dependence and impressionability of children should mean for public policy. Consider the following accounts, far removed from Steen's playful wit and Emerson's delicate irony.
In the mid-1990s, three horrific crimes in England and Wales were widely believed to have been influenced by the depiction of similar crimes in American movies, then available on videocassette in Great Britain. Benedict Nightingale, chief theater critic for The Times (London), described the crimes and the grounds for his country's anxiety:
In Liverpool ... two-year-old Jamie Bulger was abducted from a shopping mall ... by two ten-year-old boys [Robert Thompson and Jon Venables], led to a railroad line, hammered to death with an iron bar, then cut in half by a train. There were suggestions that a horror film about a demonic doll, Child's Play 3, helped inspire the crime. No evidence was presented that either boy had seen it, but the father of one had rented it shortly before.
A gang in Manchester tortured a sixteen-year-old girl, set her afire, and left her dying. [She later died.] One of the sadists repeated the menacing Child's Play 3 catch phrase "I'm Chucky-wanna play?" Four hooligans in Cardiff turned on a middle-aged man who had remonstrated with them for vandalizing a traffic barrier, and stomped him to death. As they did so, one repeatedly yelled a line, "I've got the juice," from the movie Juice, in which a shopkeeper is murdered for trying to enforce law and order.
Of these three crimes, the murder of Jamie Bulger was the most notorious. In the words of one journalist, Bulger's death caused "much heart-searching," especially on the part of the thirty-eight witnesses who saw Bulger, a large gash on his forehead, being escorted to his death at midday along busy Liverpool roads. The reflectiveness or introspection of the witnesses seems natural and appropriate, but two to three months after Bulger's abductors were convicted of murder, the recriminations had begun:
Each boy blames the other boy. Each boy's defense counsel blames the other boy. Each boy's mother blames the other boy, though Robert Thompson's mother also blames teachers and social services. Others have blamed videos, single mothers, absent fathers, original sin, and the church.
How did public officials in Great Britain respond? Prime Minister John Major urged parents to pay closer attention to their children's viewing habits. The Independent Television Commission, which regulates the country's commercial networks, issued new (though apparently nonbinding) guidelines to television producers. And roughly 220 members of Parliament expressed support for a proposed law banning the sale of any video with "degrading or gratuitously violent scenes liable to cause psychological damage to a child."
Educated Americans are familiar with these matters. From one perspective, these issues raise perennial questions about individual freedom, moral responsibility, and the common good of society, including the welfare of children. From another perspective, the issues raise novel questions about the power of media, the fragility of families, and the sundry agents that now "socialize" the young.
Regardless of how the issues are framed, the actions of Prime Minister Major and the Independent Television Commission are intelligible in the context of American politics. In response to many complaints about the content of popular entertainment (movies, television, music), public figures in this country have criticized the entertainment industry, while exploring the feasibility of different types of legislation.
One aspect of the situation in Britain, however, stands out. In the United States, Congress would not consider legislation like that proposed in Parliament without asking whether it conflicts with the Free Speech Clause of the First Amendment, as interpreted by the Supreme Court of the United States. Many Americans would quickly (and correctly) conclude that the British legislation would be unconstitutional in the United States. But because Great Britain does not have a formal charter of rights, members of Parliament may assess the free-speech interests alongside other social interests, such as the possible effects of these movies on impressionable viewers.
Given the interests at stake, which political arrangements are preferable? To pose the question in the United States is probably an invitation to ridicule. To anyone with such thoughts, let me say that the question strikes me as legitimate, it is not inspired by treachery or Anglophilism, and its answer is by no means obvious to me.
In view of the commonalities of the British and American political systems-especially the common influence of the liberal tradition-the difference here is striking. Before making policy, American legislators routinely take account of the codified or enumerated rights of individuals. By contrast, British politicians are at least theoretically freer to consider the full range of interests that conduce to the public welfare.
Most citizens in the United States revere the nation's political institutions, and many would resent the idea that those institutions-specifically, the Bill of Rights and the judiciary-might hinder our responses to problems like the one described here. Whatever the risk of causing such resentment, I want to go further in this direction. Although it may be unpleasant to consider, we should ask whether the exercise of certain freedoms by adults- including some freedoms having the status of constitutionally protected rights-may adversely affect children.
The title of this book provides my answer to that question. The book documents a worrisome development: a growing indifference to what were long considered important elements of the welfare of children. The analysis focuses on developments in the United States, where the indifference can be seen at the highest levels of law and academic political theory.
The indifference should be described carefully. It typically manifests itself as a tendency to regard certain freedoms of adults as indisputably more important than the competing interests of children. One sign of this tendency is the recurring failure on the part of some jurists and political theorists to consider the interests of children in even a perfunctory way.
The specific interests referred to here are more fully described in the chapters ahead. For now, let me say that these interests are hardly obscure: other jurists and political theorists have described them, and long before the current indifference took root. Large questions remain. How did so many scholars and jurists lose sight of these interests? What caused them to be so rapidly-and so radically-devalued? The full story has many elements, and it resists any quick summary. Hence my decision to write this book.
At this point, I should pause and comment on a few terms found throughout the forthcoming chapters. Let me begin with the most salient.
As used here, the word "children" generally refers to persons aged seventeen and under. In a few places, I distinguish between younger children (i.e., preteens) and adolescents. In other places, I use the term "minors."
Some might object to the use of "children" to cover all persons seventeen and under. They might say that this group should always be divided into subgroups such as infants, very young children, preteens, and adolescents. I appreciate the point. Still, my use of "children" to refer to persons seventeen and under underscores the impressionability and dependence of all persons in this group, including teenagers approaching adulthood (even though these teenagers are generally less impressionable and dependent than both preteens and the very young).
In discussing different needs of children, I often use the word "interest" (or "interests") to refer to those needs. Notice, however, that the words "interest" and "need" are not always synonymous. Children may have an interest in something (e.g., the development of certain abilities or talents), though it would not normally be designated a need. Yet most of the interests canvassed here are sufficiently important to be designated needs. Furthermore, those interests and needs can be described as "basic" or "universal" because they apply to all children and are core elements of their well-being. (Besides having basic needs, some children have special needs-"special" because they are shared by a relatively small number of their peers-and some have unique needs.)
The developments examined here tell us something important about the evolution of the liberal political tradition. What is meant by the liberal tradition? Depending on the context, the word "liberalism" may have strongly positive or strongly negative connotations. I use the word to refer to an identifiable intellectual tradition in both Europe and North America. Prominent modern thinkers associated with this tradition (sometimes called "classical liberalism") include John Locke, Immanuel Kant, Benjamin Constant, James Madison, Abraham Lincoln, John Stuart Mill, and T. H. Green.
Identifying the central values or goods of the liberal tradition can be difficult, but Stephen Holmes provides a useful starting point:
Liberalism's four core norms or values are personal security (the monopolization of legitimate violence by agents of the state who are themselves monitored and regulated by law), impartiality (a single system of law applied equally to all), individual liberty (a broad sphere of freedom from collective or governmental supervision, including freedom of conscience, the right to be different, the right to pursue ideals one's neighbor thinks wrong, the freedom to travel and emigrate, and so forth), and democracy or the right to participate in lawmaking by means of elections and public discussion through a free press.
Although this passage by Holmes does not suggest as much, these four values or norms or goods might be ordered in a rough hierarchy, and their ranking might sometimes change. To my mind, such a "re-ordering" of values has occurred within American liberalism, because liberal theorists and jurists now give personal freedom (for adults) a special or preferred status.
Yet in view of the longevity of the liberal tradition, we should hesitate before making any sweeping judgments about its record in promoting the welfare of children. Clearly, the tradition can claim some successes in advancing their welfare-think, for example, of nineteenth-century legislation in Britain and the United States leading to the abolition of child labor-but this book does not offer a comprehensive assessment.
My goals are narrower. As the reader may have surmised, I assess the status of children in contemporary American liberalism-meaning liberalism since the end of the Second World War. More specifically, I want to know the position that children have occupied in the minds of contemporary liberal theorists and jurists. Have they taken sufficient account of the dependence and impressionability of children? If not, what explains the lack of solicitude?
As the book's title indicates, the analysis here amounts to a lengthy critique. I stand by the criticisms, despite being broadly sympathetic to classical liberalism. Because of that sympathy, one aim in writing the book has been to encourage American liberals to become more historically sensitive. Greater historical sensitivity might lead them to give more attention to the problems I describe.
Still, I expect that many liberals will be more than a bit defensive about the matters I raise. To prepare the reader, let me share an anecdote.
After reading an earlier version of the manuscript, one friendly (and liberal) critic likened the book to a "syllabus of errors." This was an allusion to an encyclical written in 1864 by Pope Pius IX, in which the pope wrote that no one should expect the leader of the Roman Catholic Church to reconcile himself with liberalism and modern civilization. (Later popes modified this view in significant ways.) Even if made in jest, the friendly critic's remark suggests that some persons might suppose that this book was inspired by religious conviction.
That would be a mistake, and despite being likened to a papal encyclical, this book contains no religious "agenda." None of the arguments here require the reader to accept the tenets of any particular faith, or even a vaguely "spiritual" outlook. In fact, the real inspiration for this book was personal experience. To explain, let me digress briefly.
Excerpted from Freedom's Orphans by David L. Tubbs
Copyright © 2007 by Princeton University Press. Excerpted by permission.
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