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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. 

 

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