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Unintended Consequences: Laws Indirectly Affecting Population Growth in the United States

INTRODUCTION

This study of laws unintentionally affecting population growth in the United States has four main parts. In the first two parts, we stress the nature of law as a process affecting human beings and the threefold function of law-to coerce, to channel, and to teach. Introductory in character, these short sections deal with some common assumptions that often handicap or distort an evaluation of the effect of law. They underline the limits to identifying and measuring the influence of law. We then look at the laws which bear on reproduction, focusing first on the laws which create the pattern in which reproduction occurs-the marriage law with its attendant statutes on marital support, polygamy, incest, prostitution, adultery, bastardy, and homosexuality. The recent Supreme Court cases on illegitimacy, Levy v. Louisiana and Labine v. Vincent, are looked at in relation to this statutory pattern. The two constitutional rights vindicated by the contemporary Supreme Court-the right to marry, upheld in Loving v. Virginia, and the right to divorce, upheld in Boddie v. Connecticut-are linked to the central model for reproduction. This section concludes with a review of the indications of acceptance of the dominant legal pattern. Next, we consider modern statutory law bestowing benefits or burdens upon reproduction. Income taxation is specifically considered, and the notion that exemptions for children are a benefit to reproduction is specifically challenged. The regressive impact of property, sales, and estate taxation on family size is explored. Beyond the basically burdensome thrust of tax law, the benefits accorded by Federal subsidization of food, housing, and medical assistance are reviewed. The relation of the Federal welfare programs to the family with four or more children is observed, especially in terms of the tendency of recent legislation to show more sensitivity to family needs. Housing law is a particularly good illustration of this development. Aid to families with dependent children is considered in the light of the two major Supreme Court opinions, King v. Smith and Dandridge v. Williams. The importance of the perspective assumed in the analysis of tax and welfare statutes is insisted upon. If children are identified with the family

unit, benefits to them become benefits to their parents. If children are treated as individual citizens in their own right, benefits to them cannot be considered as economic bonuses to their parents.

"Alternatives to reproduction" are the subject of the last section; such alternatives are not literally substitutes for procreation, but ways of life which seem to displace emphasis on reproductive activity. Higher education, both in its effect of postponing procreation and in its effect on developing long-range life views, is seen as the chief of these alternatives. The massive rise in Federal aid to higher education is optimistically reviewed in the light of this relation between advanced education and reproduction. Laws opening up more attractive employment to discriminated-against groups may have some of the same effects as increased educational opportunity. Statutes against sexual and racial discrimination are also considered, along with deferment of procreation because of military or civilian service. Finally, satisfaction of the desire for children by adoption is viewed in relation to the law currently governing the process.

In the final part, we discuss the following questions: Realistically, would there be much support for change in any of the laws reviewed? Morally, would any change be desirable? Would any substantial effect on population be achieved through legal change?

Of the three large areas of law, that creating the central structures for reproduction is both hardest to affect and most risky to touch. The marriage laws do channel reproduction within clear limits. To weaken them might be only to increase reproduction outside of marriage. Rising illegitimacy rates may be taken as a warning. Nonetheless, what are here classed as "tertiary statutes" relating to the marital norm, especially the laws restricting the advertisement, distribution, and sale of contraceptives, seem vulnerable to change.

Use of statutory burdens and benefits to intentionally affect population runs into a moral difficulty. To injure children in order to teach their parents is unjustifiable. Such a method has been the easy path taken by the law for centuries in order to discourage reproduction out of wedlock. It should not be used now to discourage excessive reproduction.

The greatest chance of success in making laws which now indirectly affect population intelligently serve that end lies in the strengthening of the "alternatives to reproduction." To make higher education possible for many more persons, to increase attractive employment opportunities for women, to make the deferment of reproduction desirable, to facilitate adoption-these are goals the law could achieve. Not alone and not instantly, but cooperating with other forces and incrementally, legal development here would enlarge the channels for human energy and teach that reproduction is a subordinate and limited activity. Changes here would be morally beneficent. They would affect population growth.

ASSUMPTIONS

Assumption One: Law is a System of Interactions Among Human Beings Acting on the Basis of Authoritative Rules. This assumption rejects the view, often found in older formal jurisprudence and still retained in much sociological writing, that law is a set of written prescriptions or commands issued by a sovereign state and embodied in statutes, regulations, and judicial decisions. The rejected view presents an inventory of rules as "the law." It treats the state as a real entity. It supposes that law consists of the formal direction of the power of the state, that law at its best is social engineering by the state. It tacitly entails a manipulative approach-the state can change its commands to achieve the kind of social engineering which it needs.1

The assumption adopted takes rules-general prescriptions-not force to be fundamental to the notion of law. It supposes that law exists in analogous forms, in corporations, clubs, and churches, but most typically in territorial organizations such as cities and nations. It supposes that there is an arrangement of social functions-a system-but it notes that the functions are performed by individual persons. It supposes that in the system some decision makers are accepted as authoritative, but it sees the state not as the personified source of law; "state" is taken only as a useful term to describe certain persons performing certain functions by rule in a given territory. This view focuses on the purposes of human persons enunciating rules. It also focuses on the responses of those to whom the rules are enunciated.2

Because of its focus on purpose and on response, this view sees inventories of rules as not simply incomplete but incorrect as a definition of law. It sees law as a process which creates expectations, develops reliance, produces personal interaction, and affects the persons enunciating and applying the rules as much as those responding to them. Insisting that law lives only in individual human actions, this view regards the metaphor

of social engineering as misleadingly mechanical. Taking law to be a two-way communication between persons, this view suggests that manipulation is impossible without affecting the manipulators.

Assumption Two: Law Has Three FunctionsCoercive, Channeling, and Educative. This assumption denies the view also enshrined in much older jurisprudence, and repeated in derivative sociology, that law is a system of sanctions, that its function is coercive. This older view takes “a bad man's" view of social rules; only those rules whose violation will be likely to produce unpleasant results are law for the bad man. Law is a rule with an "or else" added, and penalties are the "or else."3 In the picturesque phrase of a modern critic of this view, law is "the gunman situation writ large.”4 This older view of law represents the authoritarian notion of law described by Piaget as the second stage of moral development in children.5 'Advocates of this view failed to recognize that law may act by other ways than force.

That laws may operate coercively is obvious. That they operate to channel human activity should be equally clear. The great example of common law is the law of contracts, and the great example of statutory law is the law of corporations. By treating certain types of collective endeavor as corporations. law channels economic resources and human talent into durable and creative enterprise. In the cases of contracts and corporations, there is no penalty for not contracting or not entering a corporation; but if the decision is made to collaborate with other human beings, the law has provided ways in which this collaboration may be less risky and more likely to be fruitful.

Law is also educational; that is, it forms tastes, judgments, morals. Most persons are not bad men, but confused men interested in knowing what are acceptable and reasonable ways of behavior. Law provides a standard of behavior with the backing of the community. From comparatively trivial matters, such as which side of the road to drive on, to comparatively important matters, such as vaccination for smallpox, law educates persons as to what is acceptable and reasonable action.

The three functions of law are only analytically distinct. In reality they overlap. The most coercive law, such as the prohibition of homicide, not only compels by sanction, but channels human action toward peaceful activity and teaches the value of human life. The most channel-creating law, such as the formalities prescribed for incorporating charitable activities, teaches the value of nonprofitable work, while it is effective only by providing sanctions against abuse. The most educative law, such as a fair employment practices act, channels

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hiring; and it fulfills its teaching function with some slight coercive power. As a child's authoritative view of rules will coexist in the grown man, together with an adult's perception of rules as purposeful cooperation,6 so the functions of law coexist in society. It may be true, however, that the coercive aspects of some laws loom largest, the channeling aspects of others, and the educational impact of yet others.

Assumption Three: Law and Moral Values Interact. This assumption runs counter to the belief that law and morality may profitably be separated. In the attempt to create a science of law, such segregation of law and morality has been advocated. The rejected belief supposes that law will be purified by being viewed as a calculus of forces without attention to morality.

The assumption adopted flows immediately from the two preceding assumptions. If law is a process of human interaction, it can never be free from moral significance. If law has deterrent, channeling, and educative functions, it makes a moral difference whether good or bad acts are deterred, whether channels are created for good or bad actions, whether the standards inculcated are good or bad.

All laws have moral content; but in some laws, this content is more palpable-either because the virtue demanded is more difficult to fulfill in the context affected by the law, or because the appropriateness of the moral teaching is disputed. Unobtrusive examples of moral value in the law are procedural norms' teaching of diligence and automobile tort laws' teaching of care to avoid harm to others. Visible moral value is embodied in the Securities Exchange Act teaching on fraud. Controversial moral value is exemplified in laws forbidding alcoholic beverages. Frequently, objection is made to a given law on the basis that law should not teach morality, when what is meant is that the law not teach a particular morality. If law consists of human acts and responses, it must be humanly good or evil.

As law incorporates moral values, so it also influences morals. When it deters theft, it promotes honesty. When it channels human activity to joint endeavors, it fosters reliability and fidelity. When it informs employers that racial discrimination is wrong, it inculcates charity. The law is not more morally neutral in its effect than it is morally neutral in its substance.

Assumption Four: Law and Other Social Forces Interact. Laws act upon human beings broadly differentiated by age, sex, social status, employment, religion, ethnic composition, and education. It cannot be expected that laws will have a greater impact than the social forces suggested by these categories. Obviously, it cannot be expected that the impact of laws will be

Unintended Consequences: Laws Indirectly Affecting

uniform. Law is neither omnipotent nor necessarily decisive in affecting behavior.

Obvious as these observations are, they are necessary because of two fallacies. The first is the lazy commonplace notion that passing a statute solves a problem. The second is the more subtle conviction that if a law does not demonstrably change the behavior at which it is aimed, it is demonstrably useless.

If law, in accordance with Assumption One, is assumed to be not a mere dead statutory text but a living process, a law will have consequences which may or may not be useful, even though the evident purpose of the process has been submerged or diverted by other overriding forces. A law is one increment in a social situation affected by multiple factors. Depending on the content of the law and the intensity of its impact, it may only preserve an existing balance of forces; it may thwart revolution but not kill organic change; or it may act as a catalyst. A priori notions that law can do either everything or nothing will only inhibit a creative range of legal uses.

Assumption Five: It is Difficult, if not Impossible, to Isolate and Measure Quantitatively a Law's Effect Upon Complex Behavior. This assumption is a form of restatement of Assumption Four. The notion that quantitative measurement is the only rational method of determining consequences is rooted in older models of the natural sciences. To adopt the simplest possible hypothesis for the known facts, to identify a key variable, to repeat experiments quantitatively establishing the variable's role-these have been the staple procedures of the classic physical sciences. When these methods are applied to law, they fail because it is unlikely that the simplest hypothesis will capture the multiple strands of human motivation and human perception. The selection of key variables for human behavior involves valuation. Key variables cannot be held constant. Quantitative tools will not measure human ideas, aspirations, and values. Experiments cannot be performed on a society without altering the society, so social experiments are not repeatable.

Assumption Six: Direct is Distinguished From Indirect by Intention. This study focuses upon laws indirectly affecting population; the criterion employed for selecting examples is the primary purpose of a law. Laws primarily directed to keeping a population in existence, therefore, do not fall within the scope of this paper. Laws against homicide and abortion, being laws aimed at the preservation of existing human life, will not be considered. Immigration laws, being directed at the expansion of population, will be excluded. Family planning programs aimed at reducing births are similarly outside the ambit of the paper. In contrast, sex

education laws, laws touching on sexual behavior, and marriage laws are all examples where the primary purpose appears to be not the preservation or reduction of existing life. Indirectly, they affect population; thus, they fall within the scope of this study.

The criterion, necessarily, is rough. A range of meanings may be found in any law as in any human act. It may, moreover, be expected that a law have inconsistent purposes, as human beings do. A fortiori, it may be expected that laws will not cohere without conflict with each other. The aim is to look at the main laws which secondarily, absent-mindedly, or in passing, affect population, and to identify the laws most receptive to moral and effective change.

METHODOLOGY

In our methodology, we (1) identify those written statutory texts which create the legal framework for reproduction, impose benefits or burdens upon it, furnish alternatives to it; (2) show how these texts have operated, principally by an inspection of three sorts of data-Federal documents which estimate quantitatively the magnitude of the many Federal laws imposing benefits or burdens, opinions of the Supreme Court of the United States (which afford not the most acute or advanced analysis but a homely distillation of political assumptions and intellectual conventions and governmental experience), and such material in the public domain as alumni reports, billboards, and testimony before Congress; (3) observe how neither in express intent nor in conscious implementation the laws indirectly affecting population have aimed at demographic consequence; (4) suggest how, nonetheless, the impact of these laws has had implications for population; and (5) identify the laws which morally, feasibly, and effectively could be modified to lower the rate of population growth.

CURRENT LAWS

Laws Channeling Sexual Behavior

The Central Form

The simplest and most fundamental of laws affecting sexual behavior is the law creating marriage. An offshoot of canon law, the basic law in each of the American states prescribes an exchange of consent with certain formalities for a marriage to come into existence. By this almost magically easy procedure the law makes a marriage

Marriage is the creation of a legal system. The concept of "being married" has no meaning outside a system of rules which expressly or tacitly arouses certain expectations when a marriage is made. A "corporation"

does not exist apart from reference to the law. Neither does a marriage. A special form of contract, it is a prime instance of the channeling function of law.

Monogamous marriage open to every man and woman has been so taken for granted as the dominant American pattern of durable sexual association that it may be useful to put this model beside those accepted by other civilizations for long periods. Polygamy has probably been more widespread than monogamy. Concubinage was a standard form of imperial China and imperial Rome. Denial of access to marriage to a large class of persons was a prominent feature of the Greek and Roman slave societies. In contrast with these forms, the Western model, now almost universally accepted as an ideal, affords equality among the sexes and maximizes freedom to marry and freedom to choose whom one marries. That this pattern, originally based on religious ideals and later facilitated by economic developments, owes its being to a specific legal structure is evident.10

The purpose of the law creating marriage has always been multiple-the joining of sexual expression to the development of human affection; the fostering of stable social units; the accumulation and transmission of property; the provision of education to children; and the procreation of those children. In a landmark California case in 1952, Justice Roger Traynor aptly summarized the American law's view of these multiple functions:

The family is the basic unit of our society, the
center of the personal affections that ennoble
and enrich human life. It channels biological
drives that might otherwise become socially
destructive; it ensures the care and education of
children in a stable environment; it establishes
continuity from one generation to another; it
nurtures and develops the individual initiative
that distinguishes a free people. Since the
family is the core of our society, the law seeks
to foster and preserve marriage.11

Access to this basic form was unanimously affirmed by the Supreme Court invalidating a state miscegenation statute in Loving v. Virginia in 1967. Marriage, said Chief Justice Warren, is "one of the 'basic civil rights of man,' fundamental to our very existence and survival." "The freedom to marry," he declared, is "one of the personal rights essential to the orderly pursuit of happiness by free men."12 Loving's recognition of the constitutional right to marry underlined the special status of this form of sexual association. Access to Marriage

Access to the approved form for procreative activity is controlled by law. Demographically, the most impor

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