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

immigration would help to reduce inequities in present and possible future applications of immigration laws; (3) while reduction of family preferences would probably survive constitutional challenge, it would run counter to the value of family reunification, which has loomed large in recent policy; and (4) proposals geared to control the location and distribution of immigrants might be constitutionally acceptable if not too severe (e.g., not involving mandatory requirements). Nonetheless, it remains clear that the combination of fundamental and unique American values which come to bear on immigration policies requires further exploration in the future.

ETHICAL CONCERNS AND VALUES OF
AMERICAN INTEREST AND
PROFESSIONAL GROUPS

The American ethical, legal, and political tradition is rich in the elaboration of basic values which have been present since the beginning. That is why it is possible to speak of an American tradition, one which joins the mainstream of the Western tradition as a whole. The United States is also constituted of many different racial, ethnic, class, religious, and professional groups, each with value perspectives special (if not necessarily unique) to themselves.

The formation of population policy must take account of these realities, not only because a traditional commitment to pluralism requires it, but also because any population policy formulated in ignorance of these realities will stand in dire political jeopardy. The purpose of this section is to explore the particular values, moral logic, and interests of some important groups in American society. Our investigation of the groups centered on the questions of (1) what the value concerns and commitments of the different groups are; and (2) their implications, in terms of ethical acceptability, for the formation of population policy. What is important to the different groups? What do they value? What do they want, or would find acceptable, as an American population policy? What would they find repugnant?

We will first record our findings on some key racial, sexual, and political groups, then on American religious and economic groups and, finally, on various professional groups. There is no pretense here to have covered all of those American groups with a present or potential interest in population policy. We have tried to deal only. with those which seem particularly important and which will, in one form or another, constitute sources of support or opposition to a population policy. Blacks10

Up until the past few years, few whites took seriously the charge that United States birth control

programs were genocidal, regarding it as an irresponsible and paranoic reaction of extremist groups and individuals. In 1971, the charge can no longer be ignored, especially since it is being increasingly articulated by more moderate elements within the black community. Indeed, it may even be serving to bring together ideologically disparate groups in black society, providing a contemporary common resentment of major proportions, comparable in tone and function to the older and deeper resentment of slavery.

The roots of the genocidic fear are deep. They extend to slavery days when the reproductive and family lives of many blacks were systematically controlled or disrupted in the interest of the masters. When slavery was abolished, differential mortality was not, and a long-standing target for rage has been the persistent gap in death rates between blacks and whites, a gap often viewed as advantageous for whites to maintain. In the past few years, the differential mortality issue has hardened into accusations on the part of more militant blacks of a white plan of extermination.

A second source of concern refers to the survival and strengthening of the black family. Recent white concerns over family instability and high illegitimacy rates have raised suspicions among blacks of a plan of cultural genocide. For, in their eyes and on the basis of evidence, single-parent families are not always unstable, and most black families are stable.

However, the most frequent manifestation of the genocidic charge refers neither to cultural nor direct biological extermination, but to the inhibition of black population growth and perhaps the likely decrease in size that will occur by limitation on reproduction. Given such concerns and perceptions about numbers, it is not surprising that blacks regard any white overtures to reduce their population size with suspicion. It is possible to point to many elements of society which lend credence and urgency-to the concern. The best evidence that such motivation exists stems from the fact that in the past decade a number of states, predominantly southern, have considered proposals which would permit involuntary sterilization of those who produce illegitimate children. Public statements of influential citizens are also cited. Because of its combined association with castration and with Nazi attempts to eradicate whole races, blacks view sterilization as the genocidal technique par excellence. The failure of the United States to ratify the United Nations treaty against genocide has hardly allayed suspicions.

The blacks who publicly express the genocide charge are usually articulate and forceful, but how representative of the black communities are they? Various pieces of evidence exist that they may represent

minority, yet very possibly a growing one. One survey, > instance, found that 28 percent of the blacks irveyed agreed with the statement that, "Encouraging lacks to use birth control is comparable to trying to iminate this group from society."11 Males agreed with e statement significantly more than females. Yet the umbers who do accept such arguments are enough to eserve serious attention. In particular, the opinions of lack leadership are crucial both in their own right and 1 terms of impact on public policies and programs. Where there is considerable disagreement among black eaders on the question of population, there is one spect of the population issue on which most blacks gree-its low priority compared with other pressing eeds. The fact that many whites give population >roblems top priority has infuriated blacks at a number of conferences. They often see the large family as a ymptom or consequence of deeper problems, not the cause of such problems. They see the new governmental concern as based on the assumption that it is the large family, broken homes, and the like which are a major source of poverty. Rather, they believe that it is poverty and racism, together with poor health care, which are the major cause of the ills of the black and the poor. The blacks want better health and better levels of living. They are suspicious of the aims of birth control and population programs, mainly out of a concern that the achievement of a secondary goal such as birth control might jeopardize the achievement of more pressing goals.

One point is of critical importance. Even the most liberal black groups will find anything but a voluntarist. population policy unethical as well as repressive and possibly genocidal. For blacks, group survival and power-through which survival can be assured-are primary values. Other values, freedom and justice, for instance, have no meaning for blacks without definite evidence of a guarantee of the values of survival and power. Any nonvoluntarist population policy would, in the eyes of blacks, further pressure and result in repression for black men and women without insuring the realization of their full share in the American dream.

Spanish-Americans12

Americans of Spanish-speaking origins make up the second largest minority group in the United States. As they have been largely ignored until very recently, their size often comes as a surprise. Estimates based on a 1969 survey by the Census Bureau suggests a total of 9,230,000 individuals of Spanish-American descent. Are there any values, attitudes, and social institutions that are distinctive of Spanish-American culture? Indeed, is there a Spanish-American culture at all? The evidence on hand cautions against facile generalizations about

Latinos, or even about specific groups. There are numerous variations in attitudes and behavior according to residence, social class, age, and length of time in the United States. Manhattanites of Puerto Rican origin differ in many ways, for instance, from MexicanAmericans in the Southwest. Although there is little basis for precise statements on the value patterns characteristic of each of the various subgroups of Spanish-American minorities in this country, it is possible to point up certain values and institutions which are relatively prominent in most Latin cultures.

A typical description of Spanish-American culture, including its United States variants, emphasizes the centrality of the family. In general, family ties, including relationships with the extended kinship group, provide the most secure basis for trust and the source of the most abiding obligations for many Spanish-Americans. There is little doubt, therefore, that governmental intervention on population questions would touch a core area of culture for this group.

Closely bound up with the family are cultural expectations for the two sexes. According to traditional norms, men are dominant and strong, women submissive and weak. The general pattern of male dominance in Spanish-American culture carries to the relationships between marriage partners, though this pattern seems to have been weakened by acculturation. According to custom, men are the commanding figures and the final authorities in family decisions, at least in theory. There is also a limited sphere of communication between husbands and wives. The barriers to communication seem particularly strong in the areas of concern in this discussion-family size and sexual behavior. Two of the major sources of male opposition to female contraception are, on the one hand, a fear of losing control over their wives and, on the other, fears of their infidelity.

For various reasons, children occupy a special place within Spanish-American culture. For the man, the arrival of a male heir is proof of machismo. For the wife, a child of either sex is also critical in fulfilling her self-definition as a woman. Thus, a policy which would limit the number of children to two, especially if it made no allowance for the sex of the children, might well impose greater hardships on Spanish-Americans than on other subgroups in American society.

In general, Spanish-Americans seem comparatively little concerned about excessive population growth. For many, the problem of survival as individuals and as a group is so pressing that there is little time available for thinking about more remote questions. Probably the only sense in which this group feels that population is a problem is at the level of their own family. In particular, Spanish-Americans would be suspicious of any govern