Social Values and Public Policy: From Opportunities to Rights and Back to
Opportunities
By Jim Masters
(Draft 1/26/05)
A social value typically
lasts from 20 to 50 years. Changes
in social values occur, to name a few reasons, because of (a) scientific
findings, (b) evolution of religious beliefs, (c) changes in moral values, (d)
the persistence of vision-driven advocates, (e) media, (f) changes in the
economy, (g) technological innovation, (h) demographic shifts, or (i) for no
discernible reason at all. Some
dimensions on which social values evolve, or ebb and flow, are:
What
is moral…………….……what is immoral
What is a personal
sin……….…what is a crime (that merits state punishment)
Focus on the
criminal…….……or focus on the crime
Pursue
equality………………...allow or require inequality (gender, race, etc)
Societal rights
prevail………… individual rights prevail
Less
privacy…………………....more privacy for the individual
This paper starts with
the earliest European settlers and moves to the present day.
It looks at a few 20 to 50
year "chunks" of our history, and speculates on how certain values of
each era shaped public policies about the economy, poor people, women, ethnic
minorities, criminal justice, drug use, sin, marriage and the other pleasures of
life.
Stanford
University Law Professor Lawrence M. Friedman did an excellent analysis of how
social values relate to public policy in his 2004 book Law
in America. He states that
“The legal system of any society is a mirror that reflects, necessarily, the
structure of power in that society. The
legal system expresses…the dominant norms and the ruling ideas.”
(P. 17.) (Page
references are from his book.)
The
Puritans also added rules about heresy, blasphemy, church attendance and above
all, moral behavior. There was no
distinction between sin and crime. “All
evil acts were crimes, consensual or not.”
(P. 76.) Sins (lying,
fornication, Sabbath-breaking, idleness) and other bad behavior (fighting,
drunkenness) were all crimes against the social order. The usual punishment was up close and personal.
It was public embarrassment -- fines, branding, mutilation, flogging,
dunking, the stocks or pillory, or shunning.
The purposes of this corporal punishment were: (a) to elicit an
admission of bad behavior, (b) to reform the person, and (c) to get them back to
work. In the worst cases, the
miscreant was ejected from the community. (Britain, the world champion of ejection, sent about 50,000
convicts to America and about 100,000 to Australia.) In America, most
murderers were hanged. Confinement
was rare and usually limited to persons awaiting trial or to debtors.
“Much of the colonial system seems exceedingly strange to us today.”
(P. 80.)
As
the nation was formed in 1776, freedoms were spelled out -- for the white males.
The dominant social value was ‘progress’ and the emphasis was on
converting the ‘free’ land into productive purposes. The primary role of
government was to provide infrastructure in the form of roads, bridges and
canals; and to protect private property. The
person who used land for some productive purpose was the hero – and legally
protected from being interfered with. There
was no safety-net in public policy. It
was up to you, your family, your neighbors, and your church to deal with the
vagaries of nature and man.
The
Quakers in Pennsylvania did not like the ‘blood sport’ aspect of the
punishments meted out by the Puritans. In the early 1800’s, Pennsylvania adopted the new European
innovation of “confinement in solitary cells” so that inmates would not
corrupt each other. Prisoners were
not allowed to speak; the prisons were places of silence.
The person was to be reformed through solitary reflection, hard labor and
penitence (hence the name penitentiary).
By
the early 1800’s, many counties had a system of “outdoor relief”
dispensing small amounts of cash to paupers. People who could not provide for themselves could be named in
the town meeting and auctioned (venued) by the selectmen into indentured
servitude. A unit of local
government contracted with a person to manage a poor house. In 1824, New York State required each County to establish a poor farm,
which was not to exceed 200 acres and not to cost more than $7,000.
Other states quickly adopted this model. “And there was a fervent
popular belief that housing such people in institutions would provide the
opportunity to reform them and cure them of the bad habits and character defects
that were assumed to be the cause of their poverty.”
http://www.poorhousestory.com/history.htm
In
1850, the Federal government turned about 64 million acres of swampland over to
states to distribute in 160 acre plots to the “widows and children of deceased
officers, musicians or privates” who had served in the wars of 1812, the
Indian Wars, or the War with Mexico.” (P. 41.)
The ‘deserving’ test was linked to military service and sacrifice for
the country.
The
Civil War and the 14th amendment (1868) abolished the formal
institution of slavery. After 200
years of advocacy, the abolitionists had succeeded.
The former slaves were declared to be citizens.
There was a burst of Federal action through the Freedman’s Bureau from
1865 to 1873, and then the role of the federal government as the guarantor of
rights to the newly freed gave way to the underlying racism and to new forms of
segregation in local and state “Jim Crow” laws.
Separate-but-equal became the de-facto law of the land. In
1896, The Supreme Court decision Plessy vs. Ferguson affirmed the social reality
of segregation.
“The
asylum movement in the United States and Europe reflected the belief that people
recently diagnosed with mental ailments could regain their sanity in an
idealized environment free from the stress of everyday life. Asylums
strived to provide a healthy diet, exercise, fresh air, adequate rest, a strict
daily routine, social contact, and a kind but firm approach. This humanitarian
philosophy marked a vast leap forward from earlier theories that mental illness
stemmed from demonic possession and prescribed treatments such as flogging and
cold water to drive out the demons.” http://www.dshs.state.tx.us/mhhospitals/AustinSH/ASH_About.shtm
During
the latter half of the 19th Century, more states passed laws allowing
women and children to own property, and to keep property they inherited.
Women could make wills and enter into contracts.
Most states required “grounds” for a divorce, from adultery to
desertion. A couple would often
collude to fool the court into believing the grounds actually existed. The ‘traditional’ marriage had sharply bounded roles; the
emerging form of ‘companionate marriage’ required them to be equals, to
share all aspects of their lives and to be successful in every aspect.
In
the late 1890’s, the “child saver” social movement resulted in the
creation of a “juvenile court” in Chicago to help young people -- including
those suffering from abuse and neglect. Immigrants used these courts to help control their wayward
children.
Legislatures
and courts still struggled with the definition of insanity, and it was often
left to juries to perform the social function of assessing sanity, apportioning
guilt and calibrating punishment. The
jury “…is the voice of the community -- a voice harsher at time, more
lenient at times, than the voice of formal law.”
(P. 89)
Then
and now, a few lurid trials dominate public attention.
These showcase trials “…are important because they hold up a mirror
to society. They are dramas --
stage presentations -- which present society’s norms and values in vivid,
living form for argument, and debate” (P. 95)
In
the 1880’s, the Settlement House movement assisted the European settlers.
Jane Addams modeled her new Hull House in Chicago on Toynbee Hall in
London. The settlement houses provided language training, advocacy,
job training, and fought for better working conditions, health codes, fire
regulations and other improvements to the dangerous workplaces and slums.
Their accomplishments typically came only after uphill battles against
hostile elected officials.
From
1890–1914, there was another wave of conversion of social values into public
policy. The ‘age of consent’
for sexual activity was raised to l8 in some states and to 16 in others;
abortion was made illegal, and cigarettes were banned in some locales.
A wave of hysteria about an alleged ‘white slave trade’ resulted in
the Mann Act of 1910 which forbade transport of women across state lines for
immoral purposes. The 40-year old
‘Victorian compromise’ that limited vice to red light districts was
unraveling; the routine payoffs by madams to police had to be stopped.
Before
1900, selling and using drugs was not a crime.
The Opium Exclusion Act of 1909 and the Harrison Narcotics Act of 1914
required physicians to dispense all drugs, and forbade dispensation of narcotics
to addicts (which had been routine up to that point).
This increase in public concern over sin, vice, and sex was attributed in
part to reaction to the waves of immigrants from countries that did not share
the Protestant attitudes about moderation.
“The old Americans, rural, Protestant – felt threatened.
Vice, sin, debauchery were eating away at the soul of the nation.
Ideals of discipline, self-control, moderation were under cultural
attack.” (P. 103.)
Sounds familiar, doesn’t it?
Upton
Sinclair wrote “The Jungle” about the filthy conditions in the Chicago meat
packing plants. Using Minnesota
laws as guides, in 1906 Congress passed the Meat Inspection Act and the Food and
Drug Act. This helped improve food
safety, but the new drug law provided authority to remove a drug only AFTER it
had proven unsafe. In 1938, a
poisonous drug manufactured by the S.E. Massengill Company killed over a hundred
people. “Dr. Samuel Evans
Massengill, the firm's owner, said: ‘My chemists and I deeply regret the fatal
results, but there was no error in the manufacture of the product.’”
http://www.fda.gov/oc/history/elixir.html
The public was outraged. “Scandal
and incidents are powerful lawmakers; but they work best when they arouse the
passions and above all the self-interest of the vast middle class.”
(P. 138.) Congress
acted, and the 1938 Federal Food, Drug and Cosmetics Act required that all drugs
be approved BEFORE they could go onto the market.
At
the turn of the 20th century, private charity was often overwhelmed. In 1912, the amazing group of women from Hull House persuaded the
Illinois State Legislature to create a program to provide cash payments to
widows and children. The modest
payments were to be given out by local boards -- in accordance with the customs
of the community – to the deserving poor.
After
a 100-year social movement in which the female advocates were called every name
known to man, in 1920 women’s suffrage triumphed and women gained the vote
with the passage of the 19th Amendment.
“The
high water mark of the campaign to save America’s soul….was National
Prohibition.” (P.104.)
In 1920, the 18th Amendment prohibited the brewing, sale and
consumption of alcoholic beverages. Crime
became a national issue as the FBI arrested thousands of bootleggers.
Prohibition was repealed in 1933, and this repeal is seen as a major
turning point in law enforcement.
Since then, the societal trend has been in the direction of
repealing, or ignoring, laws against most ‘victimless crimes’ including most
sexual activity between consenting adults and gambling.
In
the 1930’s, the social myth that Adam Smith’s ‘invisible hand’ was the
best way to provide economic opportunity for all was crushed by the weight of
the Great Depression. The public
demanded action. There was an
avalanche of legislation in which the Federal government moved to regulate
various aspects of the economy, e.g. wages; unions; securities; the stock
market; and banking, to name just a few. Two
new social insurance systems were created -- Social Security and Unemployment
Insurance. Coverage was not
universal; Social Security did not include farm workers and domestics, which
excluded about 2/3 of black workers.
In
an uncontroversial section of the Social Security Act of 1935, Aid to Dependant
Children was created to provide payments to the mothers, generally assumed to be
the widow of a working man killed in a mine or factory.
Modeled on the program in Illinois and 16 other states, funds would be
dispensed through local government -- in accordance with the mores and customs
of the community – to the deserving poor.
In a Southern rural county where everybody was poor and half the
population was black and half white, the recipient group might consist of 300
white females and 2 black females. Race
mattered.
In
the 1950’s, the economy was booming. The
Civil Rights movement began to draw more media attention. In 1930, the NAACP adopted a strategic plan to bring school segregation
cases up through the courts to the Supreme Court.
This led to the 1954 Brown vs. Board of Education decision that separate
was no longer equal. If segregation
was wrong in schools, perhaps it was also wrong in housing, transportation, in
employment and at lunch counters as well. The
Civil Rights Act of 1964 struck down discrimination in the workplace and housing
for both minorities and females. A
Voting Rights Act was passed. The
anti-miscegenation laws were struck down in 1967 in a classic case of the
Supreme Court reflecting new social values.
Some rail at the “activist judges” but a common law system is built
on the assumption that judges and juries will reflect community values.
“In 1971, the Supreme Court, as if awakening from a long sleep,
‘discovered’ gender discrimination as a forbidden act, under the Fourteenth
Amendment to the Constitution -- an idea that would have surprised the men (and
they were all men) who drafted the text.”
(P. 149.) When you hear
criticism of “activist judges” what the critic often dislikes are new social
values that the judge is reflecting. Should
we abandon common law and adopt European civil law in which every illegal
behavior is codified? Some people
seem to think so -- especially if they can write the code of behavior!
The
“no fault” divorce, first passed in a California in 1970, “…suggests yet
another turn of the wheel even beyond companionate marriage.
It suggests a view of marriage less as a working partnership than as
something intensely personal, a mode of self realization… and one that has to
be undone if it fails to satisfy or bring about its goal for either of the
partners.” (P. 66.) From a
way to grow the grain and to tend the children, marriage is now supposed to be a
primary source of personal fulfillment.
The
privacy boundary between the individual and society has also shifted.
From the Pilgrim era where all behavior was public business, the social
norms are now at the libertarian end of the spectrum where the rights of the
individual predominate. Consenting
adults can drink to excess, gamble, smoke cigarettes and explore each other’s
orifices without fear of prosecution. However,
there is now some grumbling that if your private behavior directly causes an
illness (lung cancer from smoking) maybe the society should not have to pay your
medical costs.
In
the 1960’s, the Great Society was energized by and drew its moral compass from
the Civil Rights movement. Ideas
about equal treatment for minority groups blended with ideas about other kinds
of rights. Advocates sought to
develop entitlements and rights to income, health care, housing and other
aspects of modern life. Programs
that had made local decisions about who were the ‘deserving poor’ were now
required to give automatic approval to people who met specific eligibility
standards. The ‘deserving poor’
were no longer people who met certain moral standards, they were now were
defined as all citizens who met specified eligibility criteria. The public assistance rolls expanded rapidly.
By
the early 1970’s Congress had lost interest in the federal categorical grants
that fueled specific interest groups and social movements. They began consolidating the categorical programs into block grants (CDBG,
SSBG, CETA) and turning them over to states. Congress would have approved other block grants, but attention turned to
Watergate. In the mid-1970’s Congress shifted their attention to
transfer payments to individuals (Food Stamps, energy assistance), or to vendors
on behalf of individuals (Medicaid, Medicare). Having private sector partners (farmers, utilities, doctors)
provides a symbiotic link and creates additional support for some social
programs.
After
the oil shocks and inflation of the 1970s; the income of men with a high-school
diploma sagged. More women entered
the workforce to prop up the household budget. By the early 1980s a majority of women with a child under the age of
five were in the workforce and by the late 1980’s a majority of women with a
child under age one were in the workforce. The social value of women going to work trumped the social value that
society would pay women to stay home to care for children. The 1988 JOBS amendments marked the shift from the “free
ride” in AFDC to a system that required efforts at self-improvement. The American public had lost interest in “giveaway” programs
that provided “something for nothing.”
The “engine of rights” established in the 1960’s was accumulating a
load of contrary social values that were slowing its operation.
The
outrage over the ‘something for nothing’ issue plays out primarily on the
national level, but the posturing gets more press than real results. The 1996 debates ended-welfare-as-we-knew-it, and also ended
research-driven policy making as we knew it for income maintenance programs. Ideology trumped the facts. (TANF is far from being a settled concept; it is ready to morph again.)
In
the second half of the 20th Century, a shift took place in attitudes
about the environment. From the
scientific arguments described in Rachel Carson’s “Silent Spring” to the
work of environmental advocacy groups, the public began to perceive that “The
age of unlimited growth, and unlimited resources, seemed finally over.
At one time it felt only natural to cut down trees, drain marshes, kill
wolves and drill oil wherever you found it , whether in the wilderness or in
downtown Los Angeles.” (P. 138.)
An awareness of the limits of natural resources -- oil,
rainforests, water, and even the air -- seeped into the public’s
consciousness. The public’s
desires to limit pollution and to clean up the environment were turned into
laws.
Thus we arrive at the turn of the 21st
Century.
“A subtle shift in
public perception of the deserving poor also contributed to their obscurity. An
ugly idea took root that perhaps all the poor were undeserving. Perhaps the
indigent elderly should have been more provident. Perhaps the unmarried mother
should have made better moral choices. Many people scorned the poor rather than
pitying them. Hence, applying for
relief was a tacit admission of defeat and moral degradation.”
This
sounds like the discussions about welfare reform, but it was written by Sandra
Spencer, at the University of North Texas, about the debates in England when the
Chadwick Commission drafted the Poor Law of 1834 -- which among other things set
up the system of “poor houses” later copied in the United States.
At one end of this moral tug-of-war is a pool of scorn for the poor and
at the other end we have our hopes for all who live in our country, our concern
for our fellow citizens, our love for our neighbors and our desire to fulfill
our obligation as our brother’s keeper.
Other
advanced industrial nations have established systems that are dramatically
different from the U.S., England and Australia -- the three nations with the
highest poverty rates. Who is poor,
why they become poor, how long they stay poor, and what is done to help people
avoid poverty or escape poverty are essentially matters of national choice.
See: Garth Mangum, Stephen Mangum and Andrew Sum; Mark Robert Rank;
Amartya Sen; Sheldon Danziger and Robert Haveman; Nancy Birdsall; Rebecca Blank;
Alice O’Connor; et. al. What
remains constant in the U.S. over the past 200 years is the social myth that
everybody can make it, and if you don’t -- it is your fault.
The hostile attitude toward those who do not achieve some modicum of
success is the dark side of the American Dream.
Their failure is an unsettling reminder that the myth is not true for
everybody. The fear that it could
happen to us evokes anger and blame-the-victim.
According to the University of Michigan’s Panel Study in Income
Dynamics (Google “PSID”) about 2/3 of the population do ‘make it,’
although a majority of families experience some health, employment or other
crisis during which they at least briefly dip into poverty.
Most of them bounce right back out because they have the social capital,
the clan resources, the financial capital and human capital to avoid a prolonged
stay in poverty. But the reservoir
of animosity in our culture towards those whom misfortune befalls – or who
make stupid mistakes – seems fairly constant over the past 200 years.
The only thing that changes over time is the pathway that this corrosive
attitude follows when it leaks into public policy. Perhaps we can construct a socially harmless way for this
animosity to bleed off into space.
Another
constant has been the desire to create ‘places’ where the poor people and
misfits can be cured. When we look at history from the pillory, to the residence of
the indentured servant, to the poor house, to the poor farms, the prisons, the
asylums, and the reformatories -- all were based on hopes that temporary
residence in this place would produce desired changes in individuals.
After 200 years you would think we would have developed more effective
strategies, but we haven’t.
The
same debates and value conflicts occur over and over again in both England and
the US, but they seem to occur primarily where there is tax money flowing
through the national government to individuals.
If public money is not involved, then people can now do whatever they
want behind their veil of privacy. But
if public money is involved, the trend is to link these to societal standards of
morality and behavior – assuming of course we can figure out what they are.
For
example, one important social value has changed from: women may not work
(outside the home), to women should not work, to women may work – and now to
women must work and onward to work as the solution for poverty.
This social value has changed 180 degrees in the past 100 years.
The fact that work (as the solution to poverty) does
not create the desired outcomes for many who do find jobs is seen as (a) their
fault, or (b) less important than the need to enforce the social norm.
Or, is this “work” goal just a smokescreen behind which the real
intention is to prompt, cajole and force each woman to affiliate with a person
– anybody -- who earns enough income so that she does not need public
assistance?
Like
the reversal of attitudes about women working, Professor Friedman points out
that sex and drugs have also traded places in the law.
Sexual activity that was once prohibited is now legal, and use of drugs
that was once legal is now illegal. “The
war on drugs, indeed, is practically the sole survivor of the hot war (of the 19th
and 20th centuries) against debauchery and vice.”
(P. 105).
We
should always be assessing the ‘load’ of social values and morality that a
law carries. Some laws are purely
functional or are based on hard science, but most laws affecting human
development have morality buried in them. Parking tickets and even a little speeding now and then are
not seen as immoral acts. Humping
with your neighbor may be a challenge to religious morality or to personal
commitments that you have made, but it no longer lands you in jail.
Reading pornography may be titillating, but selling it to minors is a
no-no. Well, maybe they can watch
it on cable TV, but they can’t read it. Drug
use can be trendy, especially with new designer drugs that are not yet illegal,
but selling them to strangers is frowned upon and if you do it on a street
corner it may result in your arrest. “The
level of enforcement is profoundly variable, and like every other aspect of the
legal system, a matter of norms, desires and politics.”
(P. 119.)
In
each era, there was an initial period of transformation and success -- then a
slow deterioration of the core concepts, policies and programs that had been
created. Reality intrudes.
Entropy is real. We are now
deconstructing the edifices of “rights” that were built in the Great Society
and the New Deal. We have ended
welfare as we know it and are exploring ways to end Social Security as we know
it. The conversion of Medicaid from a Federal guarantee and
entitlement into a state-based program with rationing of benefits was approved
by Congress (President Clinton vetoed it in 1995). This idea will come around again, and bring Medicare along
for the ride. The policy
shift from implementation of Federal entitlements to a policy of rationing by
states changes the discussion from one about universal rights to a discussion of
who are the deserving poor.
Thus
we arrive at the start of the 21st Century, nearing the end of the
New Deal/Great Society cycle of reform that established many “rights” in
social policy. The national
conversation is once again turning away from rights and toward providing
opportunities for people. One can
make a pretty good case that among college graduates, except for the glass
ceiling, the U.S. is a meritocracy that operates much like the myth of the
American Dream says it does. For
the other two-thirds of the population, and especially the bottom third, this is
not true. Unfortunately, most
public policy is crafted by legislators who are college graduates and who
perceive the nation from their (ad)vantage point inside the top third of the
pyramid. To them, an
“opportunity” construct for the top 1/3 is much more relevant and useful
than a “rights construct” that applies to the other 2/3rds.
The “who benefits and by how much” tests should be applied to any new
policy, especially those ‘opportunity policies’ that will be utilized very
unevenly among the population.
We
still have no agreed upon standards in America about what is a minimal quality
of life, about what a real safety net should consist of, and how much of it the
society should guarantee through governmental action.
Occasional bursts of public charity try to correct specific problems by
distributing ‘stuff’ such as food, or money for energy or chits for housing,
but even these public charity functions are increasingly searching for
recipients with certain behaviors or moral qualities.
The
Social Security system was invented to be a safety net to prevent extreme
poverty among senior citizens. It is being proposed that, as part of an Opportunity Society,
Social Security should be partially converted into a system designed to generate
higher levels of wealth than the worker-based cash payments will provide.
Given our gigantic ten-trillion dollar economy, this in fact might work
– and it might not. And if it
does not work, we may be creating social problems reminiscent of the 1930’s
when the economy failed to provide even a subsistence level for about a third of
the population. That third again --
those millions churning in and out of poverty every year – for the past fifty
years it has always been about a third of the population.
Can
a society survive with a social myth that works only for about 2/3 of its
population, and for about half of them -- only some of the time?
History suggests “Yes,” but that does not produce a nation that has
"liberty and justice for all.” As
to happiness for all, researcher Carol Graham from the Brookings institution
says “Pure economics…can't explain the fact that the U.S. is now (many)
times richer than it was at the end of World War Two, but Americans are no
happier than they were then. In fact, young Americans today are more anxious and
more stressed out.” http://www.brookings.edu/views/interviews/20040715graham.htm
As
the old social safety nets are unraveled, we must ask – what’s next?
What should be done? What
new ideas can we import from other countries?
Why is the U.S. 30 to 50 years behind many other nations in developing
socioeconomic models that explain why people are poor and what can be done about
it? Why do dozens of other countries have strategic plans to end
poverty, and the U.S. does not? And
while we are complaining, why don’t we have realistic approaches to deal with
globalization and immigration?
What
is the construct of social values upon which new pubic policies for human
development can be built? What are
the social values that cut across class and race lines, and that underlay
ideological opposites? What
cultural universals are in the self interest of all Americans, or at least the
self-interest of the middle-class, and thereby provide the foundation for public
support for new policies? Advocates
should be working both to preserve the best of the old social values and
policies – and to finding the new social values and economic benefits that
will under gird policies that will work for tomorrow.
So
in this brief review we have seen that the trajectory of a social value is
non-linear; ‘progress’ is not assured.
And, what may be one person’s pathway to freedom is another person’s
descent into depravity. Social values are not necessarily rational; they just are. To show the significance of social values, once again we quote Professor
Freidman: “In American politics, gut feelings almost always trump science.” (P.
67.) As advocates and as designers
of the next wave of public policy in human development, we need to develop a
profound understanding of the gut feelings of the American people.
