had to offer was its public land, but this was by no neans the only kind of benefit. There were the common welfare benefits that came with Federal expenditures and franchises to build the national "infrastructure," uch as transportation, communication, education, bankng, and credit services. And there were the benefits of pecial 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 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 popula tion 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 popula tion control purposes would not be acceptable to the courts in the absence of compelling and immediate necessity.

Migration and Distribution8

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

ingly, the appropriate area for decisions in these matters has been the local level, not the Federal. Of late, however, restrictive zoning ordinances have come under attack.

In respect to major regional distributional patterns, the Court has invoked the concept of negative freedom in upholding the right of individuals to settle where they wish. A paradigm case is Edwards v. California (1941), in which the Court declared unconstitutional a California law making it illegal to bring an indigent person into a state. Two lines of argument were involved. One held that the law was an unconstitutional interference with interstate commerce. Justice Douglas's opinion, however, held that the law was unconstitutional because it interfered with the basic right to travel: "The right to move freely from state to state is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference." The only qualifications the Court has been willing to place on this freedom of motion are those growing out of a compelling national interest, as in the Korematsu case (noted above in the discussion of security/survival) and temporary restraints such as quarantines. If these precedents were followed in Court evaluations of population policies aimed at redistributing the population, any compulsory policies would be very hard to justify.

To turn to legislative history, public land policy is a useful paradigm. It offers a two-centuries-long thread of national history that can be singled out for examination, and it was a major tool used by the government to achieve population redistribution.

In the colonial period, despite wide variation in the criteria of public land distribution, there was a general consensus that land should be transferred from public to private hands. This should be done for the general welfare, interpreted as best realized by putting idle land to productive use, and to increase the freedom of citizens, interpreted as the government's duty to provide an economic land base to landless citizens.

The values emphasized during the period between the Ordinance of 1785 and the Preemption Act of 1841 were still welfare and freedom, but differently interpreted. Considerations of the general welfare referred to the need for revenue for the newly independent nation, not the need to get land into production. So, public land was not donated to those willing to farm it, but sold to raise money for the needs of the new republic. That this land was simply to be sold at auction was the government's recognition of negative freedom, that it ought not to intrude to favor, for example, the settler over the speculator. The values of freedom and individual welfare were presupposed in the still generally accepted belief

that the government had a duty to make land available to citizens. Considerations of distributive justice received little emphasis, since selling at auction to the highest bidder precluded stipulating a criterion of just distribution. By default, then, the criterion became one of ability to pay, though this was not explicit policy.

From, roughly, the Preemption Act of 1841 to the General Land Revision Act of 1891, there occurred a resurgent commitment to the value of justice, interpreted as the settling of the largest possible number of people on roughly equal, small shares of land at nominal or no cost. The intention was to make the settler an equal contender for the land, along with the speculator and the monied. The equalitarian intent of this legislation failed to be achieved. In part this was because Congress included in its constituency not only individuals, but very large corporations and large land-use interests who could muster resources and political clout far out of proportion to that available to unorganized settlers, and who, as well as settlers, promised by their productivity to enhance the general welfare.

By the close of the 19th century, and particularly during the administration of Theodore Roosevelt, the country and Congress became aware of a further new constituency whose interests, for the sake of justice, ought to be recognized: that of future generations. From 1891, during the rise of the conservation movement, the claim of this constituency has been recognized in principle, if not practice, making justice a heavily weighted value extended to include a constituency of the future.

In the years following, public land policy has been multi-purpose, adaptable to a variety of objectives: land reclamation programs to provide additional land bases to the landless; following the 1901 Country-Life Commission Report, programs to prevent rural migration to towns; during the years of the Depression, the creation of a Resettlement Administration to restore and settle cutover and eroded lands; and current leasing of public reserves to private corporations. In all of these public land programs, the intent has been to achieve one or another of these values, though none is discernibly emphasized over another.

Probably the main import of these general conclusions concerning public land policy history for formulators of population policy lies, generally, in (1) the multiplicity of purposes it has been used to serve; (2) the consequent latitude it offers for the introduction of population redistribution purposes; (3) the variety of new interpretations given to old, revered values as historical occasions changed; and (4) the consequent openness of these values to reinterpretation in our day.

While the United States has, at present, no formal national population distribution policy, any number of current practices have direct consequences for distribution. Government programs such as highway and transportation programs, Federal Housing Administration mortgage insurance programs, and infrastate tax structures provide some examples. It would be misleading to state that the government is not already engaged (as it was in the past) in distribution activities. In the absence of a unified national growth plan it may well be contrary to the public's well-being to continue those programs in a piecemeal fashion.

Immigration9

The history of American immigration policy is a necessary background to any consideration of a shifting of immigration laws for the sake of population control. Though a nation of immigrants, the United States has not had a consistent philosophy of immigration. At different times, different values have come to the fore, reflecting changing national needs. At first, the need was simply for more people. The end of the Revolutionary War left the new nation with only four million persons and a vast geographical area. The later values affecting immigration policy were far more varied. While the fundamental values analyzed earlier with respect to population growth policies remain central to immigration analysis, additional fundamental values unique to immigration come into play. Among the latter have been. cultural enrichment, professional expertise, "new seed" immigrants, economic protectionism, isolationism, political asylum, and family reunification. The one theme which has, however, expressed the spirit of American immigration policy is that expressed in the words of Emma Lazarus, engraved on the Statue of Liberty: "Give me your tired, your poor, your huddled masses yearning to breathe free."

Not until 1882 did the United States attempt to develop a comprehensive immigration policy. The Immigration Act of 1882 excluded certain classes, particularly paupers, criminals, lunatics, idiots, and those likely to become public charges. In 1917, a literacy test was added. The tide of isolationism which swept the country after World War I led to the Immigration and Nationality Act of 1924, which created annual quotas for the admission of aliens from each country. The national origins scheme, which accorded Great Britain 40 percent of the total quota, was a deliberate attempt to preserve the existing balance of ethnic strains so that future development of governments and people would be consonant with the American past. The next major piece of legislation, the McCarran-Walter Act (Immigration and Nationality Act of 1952), retained the national

origins provision. It combined into a single piece of legislation the quantitative measures of the 1924 and subsequent acts, and the qualitative measures of the 1882 Act.

A significant change in standards came with the Immigration and Nationality Act of 1965, which abolished the national origins quota. In its place, the Act placed a ceiling of 170,000 on annual immigration from the Eastern hemisphere and a maximum of 20,000 from any one country. It also establishes seven preference categories, in the following order of priorities: (1) unmarried sons and daughters of United States citizens; (2) spouses and unmarried sons and daughters of resident aliens; (3) immigrants in professions and their spouses and children; (4) married sons and daughters of United States citizens; (5) brothers and sisters of United States citizens; (6) other workers and their spouses and children; and (7) conditional entrants (refugees).

A major feature of the 1965 Act is that it establishes a variety of preferences, with one-the preference it gives to family reunification-accounting for some 74 percent of the available visas allocated by preference. The 1965 Act also took a major step to protect domestic labor, requiring immigrant workers to obtain a certificate from the Secretary of Labor signifying the need for the worker's skill.

Congress has always assumed exclusive and plenary power to formulate immigration policy, in line with an accepted maxim of international law that a nation may exclude aliens as it chooses. At the same time, the policing of United States borders will necessarily affect the life, liberty, and property of many individuals desiring entry-values which, according to the Fifth Amendment of the Constitution, may not be taken without due process of law. Traditionally, due process has contained both substantive and procedural dimensions. Substantive due process in immigration relates to the grounds for accepting or rejecting prospective immigrants. The selection criteria must not conflict with the mandates of the Constitution or other legal principles. Procedural due process involves the mechanisms by which the admissibility of an alien is determined. To insure fair and equitable results, certain minimal safeguards ought to be incorporated as part of any legal decision-making process. Beyond that, the actual substance of immigration policy has always been regarded as beyond the scope of judicial review.

Even in the absence of judicial review, however, there do exist some constraints on substantive policy formulation. One is the fact that Congress is an elected body, chosen by a populace that may be outraged by blatant unfairness. The existence of well-organized lob

bies in behalf of ethnic immigrant groups is a major force for Congress to reckon with. Moreover, there remains the prospect of retaliatory measures which offended nations might take if American immigration policy were to become too unreasonable.

The history of American immigration policy is a necessary background to any consideration of a shifting of immigration laws for the sake of population policy. Although considerable immigration legislation has been introduced since the 1965 Act, none of it has been stimulated by pressures to regulate population growth. If that was the aim, however, what possibilities are open? Since no formal proposals have been introduced, the following represent speculative possibilities. One approach would be a simple reduction of the total quota ceiling for each hemisphere. This across-the-board reduction would have certain advantages, one of which is administrative feasibility. The plan would necessitate no changes in immigration procedures, forms, or standards. On its face, it does not discriminate against the people of any other nation. Yet there would be several objections to such an approach. It would produce a far greater backlog on the preference lists, increasing the importance of gaining a preference, thus making the consequences of an arbitrary or capricious denial by a consul or special inquiry officer (both of whom have wide discretionary power) all the more serious. Moreover, the chances of a preference candidate gaining admission would be greatly reduced. America would thus lose "new seed" immigrants. Moreover, we would also be denying our firm and traditional commitment to refugees, who now enter via the seventh preference.

A drastic reduction of immigrant quotas would also have far-reaching effects upon the ethos of American life. The United States would be saying that its doors are no longer as widely open. Moreover, one result of the 1965 Act was a manifold increase in the number of Asians and Africans admitted. If the total ceiling is diminished, Orientals and blacks in this country could decry this as an attempt to frustrate any numerical gains on their part. Such complaints parallel the belief among some blacks that family planning and population measures are a form of genocide. In addition, the admission of more women under the 1965 Act would, if rescinded, lead to charges of sexism.

Finally, an overall reduction in immigration quotas would have little impact on general population problems caused by distribution. If immigration at its present level accounts, for instance, for 20 percent of population growth, a ceiling reduction of one-half, a very radical reduction, would effect only a 10 percent decline in growth at present rates of natural increase. However, since many consider distribution to be a major element

of the population problem, and since settlement patterns of immigrants tend to reinforce the distribution imbalance of the native population, any immigration proposal that took account of this fact would have greater impact than one limited to straight numerical reductions. Presently, only six states attract two-thirds of the recent immigrants, with a large proportion concentrating in metropolitan areas.

In this light, any proposal to restrict immigration to settlement in a particular region would be worth exploring. One approach might require that an immigrant live in a certain area for a specified period of time, say three years. However, this would possibly encounter constitutional objections, particularly in light of the Fifth Amendment to the Constitution which has been read to guarantee equal protection of the lawcomparable to the Fourteenth Amendment which protects aliens as well as citizens. Thus, the concept of equal protection might well be violated by a law requiring new immigrants to settle and remain in a region while permitting other residents to move freely. A second constitutional objection might be based on the guaranteed freedom to travel which would be violated.

Another approach, however, might be an extension of the existing labor certification mechanism in the interests of distribution. The law could provide that the great majority of labor certificates would be available only for jobs in areas of low population density. But this approach would create problems also, probably under the Thirteenth Amendment to the Constitution, abolishing slavery and other forms of involuntary servitude. It is doubtful that a statute forcing an alien to stay on a job or in a specific area, or face deportation, would withstand judicial scrutiny.

If such strong and extreme measures, coupling immigration with mandatory distribution schemes, would probably not survive judicial review, more voluntarist approaches might be acceptable. For instance, an immigration policy requiring only intent to live in a certain area might be acceptable constitutionally (though its enforcement might pose critical problems). Programs involving monetary or other incentives for immigrants to live in certain area would also withstand constitutional attack. Finally, increased efforts to reduce the flow of illegal immigrants would probably have some impact. However, the method used to exclude illegal immigrants could raise constitutional and political problems (particularly with Mexican-Americans).

Immigration policies are reversible, and could be used to buffer the effects of other approaches. In terms of their legal impact, the following seem to be reasonable assumptions: (1) Efforts to discourage illegal entry could proceed immediately; (2) better recordkeeping on