by David L. Tubbs. Princeton and Oxford: Princeton University Press, 2007. 248pp. Cloth $60.00/£35.00. ISBN: 9780691122984. Paper 27.95/£16.95 ISBN: 9780691134703.
Reviewed by Rosalie R. Young, Public Justice Department, State University of New York at Oswego. Email: ryoung [at] Oswego.edu.
David Tubbs has produced a well written, thoroughly documented volume critiquing the current social and legal focus in the United States on the individual rights of adults at the expense of appropriate consideration for the interests and needs of American children and families. Tubbs suggests that scholars, politicians, and jurists have given priority to constitutional rights, both those enumerated in the Bill of Rights, such as the First Amendment freedom of expression, and those derived by our jurists, such as the right to privacy, often without even mentioning the impact of this single-mindedness on our dependent, impressionable children. He argues that this focus has jeopardized the welfare of our children, making them “freedom’s orphans.”
Tubbs charges that the evolution of modern liberal philosophy since the end of World War II celebrates an expansion of individual rights without due consideration for moral principles. He describes this lack of concern as “moral reticence” (p.19). The result, Tubbs states, has been a deterioration in society’s responsibility for children. Tubbs’ clear descriptions of the theoretical issues and the court cases which reflect this lack of concern will be of interest to both those who agree with Tubbs and those who do not.
The focus on the rights of adults, according to Tubbs, has led to a lack of regard for social interests, especially those which influence children. A major concern is Supreme Court decisions which have invalidated state laws limiting access to contraception. He argues that these decisions and the judicial focus on the right to privacy ignore the effort that these state laws made to curtail sexual promiscuity and promote the traditional two-parent family. He further suggests that by broadening protection of material previously denounced as obscene, the courts, political theorists, and the public subject children to damaging material and ignore ethical ramifications.
Tubbs draws on Isaiah Berlin’s 1958 Oxford University essay outlining two models of freedom: positive and negative freedom. Positive freedom refers to the need to respond to self control or government limitations on behavior for the good of society. He refers to school attendance requirements for children, child labor laws and laws limiting the use of addictive drugs as examples of positive freedom. Negative freedom is the ability to act without consideration of the impact these actions may have on others. For Tubbs, this negative freedom is especially disturbing because it ignores the influence such unfettered freedom may have on [*117] children when parents focus on their own needs rather than those of their children. He demonstrates the increasing popularity of negative freedom among politicians and the judiciary in the United States today.
Tubbs contrasts modern liberalism, and the focus on individual rights, with “ancient liberalism” which considered the needs of society when defining liberty. He draws on the writings of Benjamin Constant, Alexis de Toqueville, and John Stuart Mill, among others, to demonstrate these differences. Tubbs is particularly critical of liberal feminism for its focus on the needs of female adults and its lack of consideration for the needs of children. He points out that the freedom of women to divorce, develop careers, and bear children as single parents leaves many children living without the social and economic support of a two-parent family. Tubbs describes the arguments of Susan Moller Okin and criticizes what he sees as her assumption that the needs of women correspond to the needs of children. Similarly, he critiques Okin’s enthusiasm for “eradicating gender” (p.73) without due consideration of the impact this effort has for children.
After reviewing those political philosophers with whom he disagrees, Tubbs goes on to critique the philosophy of many jurists whom he claims promote negative freedom and exhibit “moral reticence” or a lack of attention to the ramifications of their decisions. He supports state statutes which limit the use of contraception, such as the Connecticut’s law which was declared to be unconstitutional in GRISWOLD v. CONNECTICUT (1965). Such statutes, he states, had logical legal, moral and traditional bases and supported the states’ authority and responsibility “to promote public health, safety and morals” (p.102). According to Tubbs, such laws would have served to restrict sexual relationships outside of marriage and thus promote the welfare of children within the traditional two-parent family. Tubbs draws on and critiques the judicial opinions in the contraception cases and the unenumerated right to privacy upon which these cases were based.
Tubbs then discusses the explicit First Amendment rights to free expression of speech and press with an historical review of cases relating to obscenity and prayer. He is troubled by what he sees as inconsistent treatment of children who are described as fragile and impressionable, but are in some instances not differentiated from adults. He draws on both minority and majority opinions to clarify his issues.
In his final chapter, Tubbs takes on Ronald Dworkin’s writings in FREEDOM’S LAW regarding obscenity and the right to privacy. Tubbs discusses conflicts between his and Dworkin’s views on the concepts of constitutional originalism and Dworkin’s concept of “moral reading.” He critiques Dworkin for his focus on modern moral thought and his lack of consideration of the interests of children.
Many of Tubbs’ arguments will engender controversy. He draws on legal, economic and theoretical sources to back up his claims in his effort to make liberals more historically sensitive and more attentive to the problems he describes. Although many readers will disagree with his conclusions, they will finish the book with a broader [*118] understanding of both his views and the analyses of those he critiques.
Readers who are familiar with the legal and philosophical arguments raised by Tubbs will find this an easy read which at times appears repetitious. The reader with less experience in these areas will discover that the detail Tubbs includes readily enables them to understand his perspectives, whether or not they agree with his conclusions. Thus this volume can be recommended for a wide variety of academic and non-academic readers and provides the basis for stimulating debate inside and outside of the classroom.
Berlin, Isaiah. 1969. “Two Concepts of Liberty,” in FOUR ESSAYS ON LIBERTY. New York: Oxford University Press.
Dworkin, Ronald. 1996. FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION. Cambridge, Mass.: Harvard University Press.
Okin, Susan Moller. 1989. JUSTICE, GENDER, AND THE FAMILY. New York: Basic Books.
GRISWOLD v. CONNECTICUT, 383 U.S. 479 (1965).
© Copyright 2008 by the author, Rosalie R. Young.