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.

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 value of negative freedom. This understanding of reedom became increasingly important during and after the New Deal. In such a situation, a weighting of values must 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 government 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 Government 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 overtum 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

had to offer was its public land, but this was by no means the only kind of benefit. There were the common welfare benefits that came with Federal expenditures and franchises to build the national "infrastructure," such as transportation, communication, education, bankng, and credit services. And there were the benefits of special legislation privileges (such as, protective tariffs) which were not contrary to a preponderant interest and which benefited different small constituencies without materially enhancing the common welfare, but which, on a log-rolling calculus, enhanced different constituencies in turn.

Over the years, the nature of the recipient changed. There was, during the first century of the Republic, a Federal interest in distributing wealth (land) to the largest possible number of people in roughly equal shares. But a competing and overriding interest was in abundancy of production-commercial, industrial, and agricultural-and benefits were accorded proportionately to achieve this end. It appears to have been this consideration which led to wide disparities in the awarding of benefits; in particular, large land grants were awarded to the already landed, rich, or incorporated, because they could put land most rapidly into production. And with the Depression of the 1930's, the recipient became a needy target group.

The government's role was extended to include not only assistance to help someone in achieving his own welfare, but, where his need is not attributable to his own responsibility but to social factors beyond his control, responsibility for providing the welfare itself. Moreover, the number of goods and services counted as welfare was greatly expanded (e.g., to interest groups: national opera companies, farm subsidies, urban renewal, oil depletion allowances; to individuals: Medicare, subsidized housing, recreational and rehabilitation retraining, Veterans Administration, Federal Housing Administration, mortgage guarantees).

The importance of these developments for population limitation are plain. If it is the government's duty to assure that each individual has a decent minimum income, reasonably adequate housing, relatively pure water to drink, clean air to breathe, enough space for exercise, then government must ultimately have the means to accomplish these ends. If the only means to those ends involves some restrictions on bringing new people into the world, then so be it. A comparable development is the considerable restrictions and cutting away at the matrix of "property rights," when it became. apparent to the great majority that the duties demanded of government could not otherwise be discharged.

Two cases uphold the government's right to interfere with the body of an individual on the grounds that

such interference promotes the general welfare. Jacobson v. Massachusetts (1905) upheld the right of the State of Massachusetts to require compulsory vaccination against smallpox. The Court held that the state has the right to promote the general welfare, at least in such matters as health, despite an individual's claim that the sanctity of his body was being violated. In Buck v. Bell (1927), the court upheld a Virginia law permitting the state to sterilize individuals with a hereditary form of insanity or imbecility. These cases suggest that the form of freedom upheld in Griswold is not without its limits, but they do not establish the frontiers of those limits. Security/Survival

A basic function of any legal system is to protect the survival and preserve the security of its citizens. Survival and at least a moderate sense of physical security are necessary underpinnings for the meaningful attainment of other human values. Our discussion will divide security into national, international, group, and individual security.

The primacy given national security in our legal system is reflected in several places in the language of the Constitution and its amendments. Thus, the privilege of habeus corpus, probably historically the AngloAmerican system's most important check on abuse of governmental power, may be suspended "when in the Cases of Rebellion or Invasion the public Safety may require it." Moreover, even without approval in the constitutional text, exceptions to general principles have often been made to foster security. During war time, a host of restrictions on liberty have been accepted that would not be tolerable in other periods. There are probably few steps that would not be accepted as justified if a persuasive case could be made for their necessity to protect national security/survival. For the most part, however, the concept of national security has been invoked to validate laws protecting the state from actual or feared armed foreign or domestic aggression. It is hard to visualize precisely how a population problem would arise in a short-term emergency context that would permit analogy to cases involving warfare, sabotage, and the like.

However, although national security/survival is not easily adapted to the population context, there is some precedent, particularly in the upholding of New Deal Programs, for regarding "national security" as threatened by forces other than war and destruction (e.g., the collapse of our basic economic and social institutions). But, to what extent has the judiciary been willing to reinterpret the legislative and executive claims of "threat"? The judges have a record of great deference. In one of the most controversial decisions of our era,

Korematsu v. United States (1944), the Supreme Court upheld the removal of Japanese and American citizens of Japanese ancestry from a large area of the West Coast and their confinement in detention centers. A blatantly racial classification involving a striking deprivation of liberty for citizens as well as aliens thus survived constitutional attack despite the minute evidence of any real threat. The hesitancy of the courts to strike down national security legislation was further evinced in the upholding of anti-Communist legislation of the 1950's, though offset in part by later decisions of the Warren Court.

Necessary measures to meet a real threat to national security are likely to be accepted by the courts even if they operate unjustly to some degree and involve serious loss of freedom. There is greater room for play of the values of liberty and equality when the threat is more uncertain or the measures not obviously necessary; but, even then, it takes courageous legislators to reject the plea of national security and courageous judges to invalidate, as unconstitutional, legislation based on such a plea. Nothing in the march of time suggests that the year 2000 will be different.

The legal tradition generally regards the pursuit of international security simply as a means to the attainment of national security and welfare, and does not treat it as a separate value.

More pertinent to population questions in the United States is group security. America is a society where power is exercised through groups. However, the law usually regards rights and duties as individual and protects groups, if at all, derivatively. Individuals have the right to form groups, and membership in a group, whether voluntary (such as religion) or involuntary (such as race), is not a permissible basis for the imposition of legal disabilities. In its origins, the legal tradition did not place high value on the protection of individuals from adverse consequences because of group membership. Slavery was part and parcel of our legal structure and enjoyed explicit constitutional protection. The security of American Indians has sadly been considered irrelevant for a major part of our history. The principle is presently recognized, however, that all are entitled to protection from being legally stereotyped by virtue of their group-at least if group is taken to mean the broad religious, racial, and ethnic strains that make up the community (and not, for example, "homicidal maniacs"). For the most part, this value has been recognized and pressed as an aspect of justice-equalityprotected by equal protection clause of the Fourteenth Amendment.

The harder issue, of particular relevance to some population proposals, is whether legislation with a

differential impact on certain groups would be invalid. That is, would legislation be invalid which, even though a statute made no use of group membership in classifying conduct, had a de facto differential effect? The implication for population control measures is plain. Does a proposal, for instance, which fails to take account of the fact that some groups (racial, ethnic, religious) are committed to, or have a traditional history of, large family size violate the rights of members of the group?

There is an obvious tension. On the one hand, if rights and duties are individual, then the fact that the burden of law falls primarily on those who, incidentally, are members of a group is not relevant. On the other hand, failure to scrutinize laws burdening groups, particularly racial and ethnic ones, in a differential fashion may permit the legislature to achieve impermissible objectives by regulating correlates rather than directly speaking its mind. The courts have had great difficulty with these problems, and no consistent pattern of resolution has emerged. The focus, however, at least in the racial context, seems to be on whether the law is motivated by a desire to penalize some groups. But this approach is doctrinally difficult because courts are not supposed to evaluate legislative motivation.

Unlike national and international security, individual security would probably be advanced in the population context as a limit on population control measuresparticularly those involving physical coercion-rather than as a justification for them. The potential long-term consequences of failure to regulate, which might entail loss of personal security to others in the future, would probably be perceived as a general welfare issue. In the population context, the principal problems will be with intentional infringements on personal security done by the state. The common law forbids any unauthorized touching of the person, and that remains essentially the law today. The grounds for authorization are quite narrow; and despite analogies that might be drawn from eugenic sterilization and vaccination, coercive laws mandating compulsory abortion or sterilization for population control purposes would not be acceptable to the courts in the absence of compelling and immediate necessity.

Migration and Distribution

This subject is best divided into court decisions bearing on population distribution within a region and those bearing on distribution between regions. Since zoning is a major tool affecting distribution within a region, it is useful to look at the courts' position relative to zoning. The Supreme Court has upheld the freedom of local municipalities from Court intervention. Accord