Similarly, the policies designed to deal with the population problem can be expected to be based upon many dimensions of moral justification.

Security/Survival 6

The earth is a finite globe and the United States a finite nation. In terms of present rates of population growth, it is conceivable that both the nation and the world could produce more people than their environmental and ecological carrying load could support. At that point, basic dangers would be posed to the life and safety of human beings; their survival and security would be threatened.

As values, security and survival occupy both a specific and an ambiguous place. Unless human beings survive, it is impossible for them to pursue and achieve other values; existence is the indispensable condition for the realization of values. At the same time, it may be doubted that people want to exist merely to exist; they live in order to pursue goods other than that of sheer survival itself. The drive for security, which may be understood as a freedom from fear of extinction or reduction to a subhuman condition (physical or psychological), undoubtedly gains its power because of its close relationship to survival. Insecurity is fearful because it forces people to live in the physical and psychological presence of extinction, in itself an intolerable state. Yet, as with survival, it is questionable whether mere security, apart from the possibility of realizing other values, would be accepted by most human beings as a satisfactory kind of life. In the case of both security and survival, then, we are faced with a paradox-they are both the highest and the lowest values. They are the highest because they are indispensable for the realization of all other values. They are the lowest because, by themselves, they are insufficient for anything approaching a fully human life-they must be complemented by other values (e.g., freedom, justice, welfare) to have any real significance. We do not believe this paradox can be adequately resolved; from it springs the ambiguity of the concepts. We will focus here on "survival," since what is said of survival can for the most part be understood as well of "security."

A two-fold distinction is fundamental to an understanding of the concept of survival. A distinction must be drawn between the benefit at issue-just what good is at stake-and between the beneficiary of the value-just who profits from a realization of the good. Concerning the benefit at issue, a number of observations are pertinent.

The Benefit at Issue

First, as a value, survival is not likely to be abandoned as readily as other values. While an individual

might be willing to sacrifice his own survival for the sake of some other value, or for the survival of others, it is not likely to be given up as a value in general. Second, it does not seem to make much sense to speak of raising the aspiration level of survival as a value. One might seek more freedom, but if survival is understood in a strict sense ("mere survival"), then it is not evident how one could seek more of that primitive state of existence. In a word, the difference, strictly taken, between a minimal and a full realization of the value of survival is small or nonexistent. Third, the gravity of violations of the value of survival are nearly uniformly severe. The violation of the value, even in the case of killing in self-defense, is always a matter of deep seriousness. Fourth, as mentioned above, there is a respect in which survival is the most important and the least important value.

The Beneficiary

These general remarks about the benefit at issue in survival need to be complemented by a specification of the different possible beneficiaries of the value, especially within the context of population policy. Personal survival, the survival of an individual, is clearly one important element, bearing on those minimal physical and psychological conditions necessary for the wellbeing of an individual. At quite the opposite pole is species survival, that is, the survival of the human race. The value of survival is also invoked in other respects. In particular, there is group survival, which can be understood as the continued physical existence of an ethnic, racial, religious, or sociocultural group. The black concern about "genocide" would be a case in point, where the fear is that in the American nation, blacks would either be systematically annihilated or, less violently, be subjected to pressures which would reduce either their absolute numbers or their proportion in the population. Cultural survival is a variant on group survival, with the emphasis laid on the preservation of values and folkways important in a group's heritage and distinct identity as a group. National survival, by contrast, refers to the continued existence of the nation and all the groups which together constitute it. In the national context, survival can also be understood in the sense of cultural survival.

It is perfectly clear, of course, that the value of survival is invoked in a variety of population discussions-for example, that excessive population growth could lead in the end to the extinction of the human race. Our judgment, however, is that the force of arguments based on the value of physical survival, at least at the national or species level, are more rhetorical than real in their cogency. If "survival" is taken in the physical sense, then it is implausible that any given.

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population policy, or the absence of a policy, could pose a direct threat to physical survival of the nation or the human race, which is what the term literally means. While this statement might be arguable for the world as a whole in the long run, it seems defensible in the narrower context of the United States. Thus, it appears unlikely, for instance, that the absence of a population policy would, quite literally, pose a threat in the foreseeable future (30-50 years) to the mere survival of individuals, groups, or the nation. It is possible, however, that certain policies could jeopardize the survival of certain cultural identities. Nor does it seem at all likely that the absence of an American population policy (or even the existence of an implicitly pronatalist policy) could threaten the mere survival of the human species in the foreseeable future.

We are not implying here that excessive population growth, or harmful patterns of population distribution and migration, could not have devastating effects on the quality of human life or on the survival of some or many individuals. Nor are we implying that the concern felt by some minority groups for their survival as a cultural group is irrelevant. Rather, our point is directed against loose invocations of the value of survival, particularly when they carry the implication that human existence itself, taken in a physical sense, is necessarily at stake. It is more pertinent to speak of threats to other values, especially those of well-being or general welfare (closely related to the quality of life) than of literal threats to mere survival. At least for the United States, the conditions under which life itself, for all inhabitants, would be directly and clearly threatened by population pressures are so problematic that it becomes almost impossible to give the value of survival a leading place, much less one capable of any kind of clear analysis, agreement, and verification. The other values we have discussed provide a better basis for discussing American. population problems.

Other Values

While the four values already discussed have been at the heart of the Western and American intellectual and legal traditions, others have had an important role also. The value of truth-telling, for example, lies at the heart not only of social relations in general (which requires a presumption of veracity for discourse to go forward), but also of government-citizen relations in particular. Beauty, whether natural or man-made, is another value with an honored place in the tradition, as are aesthetic values on the whole.

If values of that kind may be said to be generally recognized (even if more cherished by some individuals than others), there are still others important to particular

groups in the society. Minority groups need political power to establish their own rightful claims for power and respect. Cultural styles and values, usually a heritage of immigrant traditions brought over from the "old country," are an important consideration to many ethnic groups, who may want assimilation in American life but not at the total expense of ways of life traditional to their historical heritage. Religious values, of course, represent still another source of group values; "freedom of religion" will usually mean more to a religious group than simply the absence of state coercion. It will also mean public respect and toleration for different religious convictions and a fear of not only legal but also covert cultural encroachments. In the instance of American Indians, tribal values will be prized. For many ethnic, racial, and religious groups, kinship ties and familial values will have a high place, including a special emphasis on children and childbearing.

Though most of these values will be discussed where pertinent below in the analysis of different groups in American society, a few general remarks are in order. It is a safe assumption that while all American subcommunities will have a concern for the four key values of freedom, justice, welfare, and security/survival, the way they interpret and rank these values-how they understand them and which they take to be comparatively most important-may be greatly influenced by the place they give to values special to their own group. Indeed, precisely because they are "Western" or "American," some of the key values may, for some groups, be overshadowed in importance by values more idiosyncratic to them.

For that last reason, it is by no means a certainty that an American population policy which managed (somehow) to maximize in some judicious way the four key values would automatically commend itself to all subcommunities. The values any particular group will want protected or maximized might be (and often are) values important only to them. Moreover, even the key values (as indicated above) are subject to a variety of interpretations, and one place this variety shows itself is in the different way in which particular groups understand the value. Species survival, for example, appears a far less important value to American blacks than to many white ecologists; for blacks, group survival and justice will count as far more important in their eyes.

The combination of general values shared by all (but not necessarily interpreted in the same way by all), together with other values important to one or another subcommunity, is the source of the greatest difficulty in determining the ethical acceptability of policy proposals. It is a banality to say that individuals look at the world

in diverse ways, and a cliche to say that different groups have different values. Yet the centrality of both these observations is critically important in developing ethical criteria meant to apply to all or most citizens; it will also, we shall make clear, help explain why it is impossible to develop precise, explicit ethical norms which would resolve all dilemmas, satisfy all groups, and insure perfect "domestic tranquility" in discussions of population.

PAST AND PRESENT TRENDS IN THE
LEGAL AND POLITICAL TRADITION

To generalize at all about the American legal and political tradition is a hazardous undertaking. Our concern in this chapter will be to articulate how that tradition has brought into play the values and principles discussed in the previous chapter, the way they have been understood, and their implications for population policy. Our analysis will follow the four values we consider critical for an evaluation of population policy: freedom, justice, welfare, and security/survival. We will begin with analysis of the values relative to population growth in general, and then focus on the bearing of the values on distribution and immigration policies. The Legal and Political Tradition7

The phrase, "legal tradition," can be ambiguous. Its primary reference is the history of laws and legal reasoning that have been approved or disapproved by the courts, especially the Supreme Court; this is the sense of the phrase in most of the discussion that follows. But it is possible, and in fact a significant occurrence in the case of freedom, that the way the basic values are deployed in the "judicial" strain of the legal tradition. differs from the way they are employed in actual legislation. That is, the values are used one way to justify judicial decision, another way to justify legislative intentions. For instance, the courts until the 1930's had interpreted freedom in a generally negative way, as freedom from impediments; only since that time have they argued that positive assistance is sometimes necessary to guarantee someone's freedom. In legislative history, on the other hand, the government, from the beginning of the nation, has undertaken programs of public works and land distribution to foster economic freedom. This is not a conflict regarding the constitutionality of laws, but an inconsistency in the way the basic values are deployed in argument.

Freedom

Freedom in the law is a complex and multifaceted concept. Generally, our contention is that the Court's understanding of the concept of freedom and the

Federal role in insuring it has moved, in the last 40 years, from negative to positive freedom, particularly in economic matters. From the signing of the Constitution to 1937, the Supreme Court understood the concept of freedom in its negative sense-freedom as a value underlying Court decisions was construed as freedom from either state or Federal intervention. Since 1937, the Court has often upheld regulatory laws restricting the freedom of some, arguing that the freedom of the majority is facilitated by Federal intervention. A comparison of two cases illustrates this shift.

In Lochner v. New York (1905), the Court struck down a New York State law restricting the number of hours a baker may work, reasoning that such a law was an unwarranted limit on a man's liberty. By comparison, in Steward Machine Co. v. Davis (1937), the Court upheld the constitutionality of national unemployment schemes, where payroll taxes were levied to finance unemployment insurance. The opinion of the Court reasoned that the unemployment schemes created a larger freedom and were intended to avert a common evil. To find the law unconstitutional, the Court said, would deprive the states of freedom to participate in an important element of social change. The Court stressed that this freedom is made possible through Federal legislation.

The concept of positive freedom has had a much. longer history in legislative behavior. From the birth of the Republic (and extending back into colonial history), the government has assisted in providing the means to assure freedom of livelihood to citizens. This role was early extended to include providing corporations with the means to make the land productive, to such a degree that by the close of the 19th century, the government had given away much of the Continental United States to its constituency. Moreover, the government provided warehouses for traders, protective tariffs for commercial interests, waterways, harbors, canal and river development, and agricultural research and development. A look at the Federal and state budgets over the decades is an indicator of the number and variety of goods and services the government was presumed to have some obligation to provide. The long history and extent of this assistance-reflecting a concern for positive freedom and the general welfare-has been masked by the public rhetoric's exclusive focus on the value of negative freedom.

However, regulation is conceptually distinct from assistance, and precedent for the former is less substantial prior to the 1930's.

In the 1930's, the value of positive freedom was used to justify not only assistance, but regulation of some, in order to protect the interest of others.

Regulation, of course, means limiting someone's freelom; therefore, positive freedom competes with the alue of negative freedom. This understanding of reedom became increasingly important during and after he New Deal. In such a situation, a weighting of values nust occur, such as that which took place in the 1930's n welfare and economic policy.

The history of the Court on the issue of personal freedom is enormous. Nevertheless, it seems fair to say that it has moved in two divergent, but not contradictory, ways at once-ways which can be interpreted in terms of the value categories of negative and positive freedom. The Court has, on the one hand, moved to enlarge and protect more vigorously the list of activities immune from govemment interference, both Federal and state (negative freedom). The trend is well described in Justice Douglas's opinion in Griswold v. Connecticut (1965). At the same time, on the other hand, it has moved to give power to Congress to take positive steps to guarantee some liberties by legislation. These latter efforts are movements toward positive liberty for individuals because they are designed to facilitate the individual's ability to realize his choices.

The Court's movement to increase the scope of personal liberty has been extensive. While the Court has taken extensive steps to expand the scope of negative freedom, it has also, however, taken steps to clarify the govemment's positive responsibility or obligation to guarantee these liberties to its citizens. For example, in Gideon v. Wainwright (1963), the Court held that states must provide counsel for poor persons in felony cases, and many of the civil rights cases, including the landmark Brown v. Board of Education (1954), reflect the notion that the Federal Govemment must see that genuine opportunities for freedom are extended to all groups of citizens.

It is increasingly hard to limit freedom to a negative conception-immunity from government restraint-as predominant community notions of the proper role of government expand. There is a growing belief that the government has a duty to organize the economic and social institutions of the nation. Yet, there is a related belief that it is unfair to have rights which are meaningless to some because the government has not created the conditions in which they may be exercised; thus emerges a positive obligation, although difficult for judicial enforcement, on the part of government to facilitate freedom. Moreover, the wide range of procedural freedoms in the legal tradition have an important role to play. Thus, in Griswold v. Connecticut, the invalidity of a law prohibiting married couples from using contraceptives is grounded in significant part on the abhorrence of the only method of ascertaining violations,

investigation and disclosure of what transpires in the marital bed. The case suggests the importance to the legal tradition of investigative methods that are deemed acceptable for a free society, and serves as an instance where concern about investigation contributes to a decision establishing an area of substantive liberty.

While the Court has never been called upon to decide a case directly bearing upon population size or growth, some observations are pertinent for possible cases in the future. Although it is difficult to find in the historical legal tradition any general notion that sex is beyond the control of the state, since the 1965 Griswold decision there has been rapid growth of the assertion that the use of one's body is not the state's business. Abortion laws have been liberalized in many states, and a number of lower courts have struck down restrictive laws as too vague or as interfering with a woman's right of privacy. In one instance, an antisodomy statute has been invalidated. The freedom to control one's body and to determine whether or not to give birth is now emerging as much more important than it had earlier been considered.

So far, this movement is compatible with any envisioned need to regulate population, since the freedoms asserted relate to previously prohibited acts that prevent birth. But it is ironic that this libertarian approach is developing in a period when it is first beginning to appear possible that the state will have a genuine need to play a role in decisions about reproduction. Despite the libertarian approach of Griswold and the cases that follow it, no decision has said that determination of family size is absolutely within the discretion of individual parents. Should the state present a compelling need for regulation, a restrictive law would probably be constitutional. Contrary to claims of free speech and free exercise, the right-of-privacy claim is not moored to an explicit constitutional provision, making it less likely that a court will strike down legislation that purports to meet an urgent social need. The question, of course, of the conditions under which the limitation of population growth would be accepted as an urgent enough social need to require government regulation cannot readily be determined.

Justice

The United States has always had egalitarian ideals, even if they have been selectively applied. Different interpretations of distributive justice utilize different criteria for singling out groups needing special help toward equality. American legislative history reveals a wide variety of competing criteria of relevance: according to merit (veteran pensions, homesteads to those who

cleared and worked land), wealth or ability to pay (land grants sold at auction), contract (to corporations for colonizing and for building canals and railroads), capacity (to corporations who had the resources to make the most productive use of assistance), political strength (to the best organized and/or financed interest groups), need (to poor, unskilled, unemployed), and equalizing (civil rights) or redistributed objectives (for example, progressive taxation, public housing, Head Start). Most recently (during the 1960's), some emphasis has been given the last two criteria listed, in an attempt to correct alleged inequities generated through the private sector, by historical circumstances or by changing conditions. That is, inequalities or need (when large enough) in themselves are taken as grounds for action.

The force behind this movement was at first primarily judicial; the courts moved in when the legislatures showed no signs of undertaking comprehensive action against patent discrimination. But the legislatures have followed the Court's lead. To some extent, this equality has been purchased at the expense of freedom of elite and dominant groups and of majority notions that general welfare can be accomplished in better ways. Indeed, at some point (for example in barring discrimination in private schools), the conflict between justice and freedom-or between two demands of freedom and two interpretations of justice-takes on a constitutional dimension. But since the general movement of Western society seems to be toward more and more equality, we expect that egalitarian interpretations of justice will be given higher priority. The impact of the emergence of the equal protection doctrine as an indicator of an implicit notion of justice cannot be overestimated. In relying heavily on "equal protection" in the way it has, the Court has been making a presumption for equality in many areas. That is, it assumes that things are just when they are equal. Deviations from equality must be carefully justified.

Until the later years of the Warren Court, except for racial discrimination cases, the equal protection doctrine-when used at all-had rather limited scope. This situation has changed. As Harlan points out in his dissent in Shapiro v. Thompson (1969), the Federal courts' recent interest in achieving equality is supported by arguments that the courts can overturn discriminations not based on a compelling government interest. The compelling interest doctrine has considerable power, constituting an important shift in the courts' thinking. It means that the concept of presumptive equality is receiving more weight. That is, the court is assuming that discrimination along certain lines is unjustified: The burden of proof has shifted to those who would cause differential treatment.

The movement toward greater equality has some important implications for population policy. One of these bears on racial discrimination, making it all the more certain that any explicitly racially discriminatory population policy would be unconstitutional. Another implication relates to the rejection of any inequalities burdening the exercise of basic rights like voting or travel, at least in the absence of some compelling showing of need. The issue here is whether and to what extent the right to decide family size will be considered a basic right; if it is, what sort of state interest will justify limiting its exercise. Still another implication stems from the unwillingness of the Court to see basic privileges and rights based on purchasing power; this is important for population measures which would make use of monetary incentives or disincentives. Welfare

In the American legal tradition, welfare is a concept summarizing the permissible objects of government activity. The protections of freedom and justice are intended to be limits on the pursuit of general welfare in the ordinary course (that is, excluding notions of national emergency from general welfare). Thus, the government would find it much harder to sustain a particular welfare program than a survival/security program against a persuasive attack based on freedoms noted in the Constitution, such as religion or equality. The argument in Brown v. Board of Education that segregated schools promoted community welfare and harmony was brushed aside, but removal of a racial class was sustained in Korematsu v. United States (1944) on the basis of a security claim.

Historically, of course, there has been enormous expansion of what, in the public mind, constitutes the general welfare. The original ideology-although the practice was quite different-was that the government's role was to regulate as little as possible and to perform tasks (like providing national defense) that could not be accomplished by individuals. There is now increasing agreement, however, that the government, in pursuit of welfare, should do more than remove obstacles in the way of an individual's achieving an acceptable quality of life on his own; it should also positively promote opportunities for such a life, sustaining a level below which those unable to attain it on their own will not be allowed to fall.

In practice, and in contrast to ideology, a considerable degree of welfare benefit has accrued to citizens through govemment assistance long before the advent of the "welfare state."

The kinds of benefits were various. From Independence on, one important benefit the Federal Government