INTRODUCTION

This study addresses the constitutional questions that are, or may conceivably be, involved in population policy-making by the United States government. Of necessity, the principal focus will be on the powers and limitations of the National government, as distinguished from the states, even though, under American federalism, authority over family matters rests mainly in the vaguely defined residual police powers of the states. Two basic assumptions are made: (1) that an identifiable population problem exists; and (2) that uniformity in policy is a vital necessity in dealing with that problem. Both will be dealt with at greater length below. It is sufficient now to say that the "population problem" is more a set of problems, present and emergent; and that policy uniformity can be attained best through national action. The states may be, as Justice Louis D. Brandeis was fond of asserting, "laboratories of democracy,"1 but if so, to permit each to establish its own population policies would not achieve desired ends.

What population policy should be is a proposition that is at once controversial and difficult to delineate. At this time, it is enough to state the pressing requirement for enunciation of the fundamental goals of population policy, not only with respect to overall size but also to rate of growth, to density, to migration, and to the other factors that make up the congeries of problems involved in population. As John Maynard Keynes said in 1920: "The time has already come when each country needs a considered national policy about what size of population, whether larger or smaller than at present, or the same, is most expedient. And having settled this policy, we must take steps to carry it into operation."2 If, in that question, the word "goals" is substituted for the word "policy," then Keynes may be said to have made the same basic point as that suggested in this paragraph. This nation has indeed moved a long way from 1959 when President Eisenhower could perceive no possible basis for an official population policy,3 saying it should be left to private groups and agencies, to 1970 when President Nixon appointed the Commission on Population Growth and the American Future. Establishment of the Commission reflected a growing recognition

that the question of population is indeed of importance to official policy-makers. It can no longer be ignored. One may safely forecast that the pressures will increase for governmental action in the field.

This paper is concerned with the constitutional issues involved in possible population policy-making of an affirmative nature designed to control populationthat is, policy-making that seeks to ameliorate in some way one or more of the facets of the "population problem." (Historically, it is meet to note that the United States has always had a set of policies that, in their total impact, encouraged population growth. That, too, was affirmative action, but for growth not control.) Included will be: (1) the constitutional basis for the exercise of national power in the context of a Federal system; (2) limitations on possible governmental action, both Federal and state; (3) the extent to which the Constitution may be said to require governmental action (the concept of obligation to act); (4) the concept of constitutional change in the context of the population problem; and (5) the capacity of the Supreme Court of the United States to articulate binding norms of population policy, either in the context of direct litigation. concerning constitutional provisions or by way of giving approval to political decisions of the Congress and the President.

Population policy-making should be appraised "in terms of some standard of human values."4 What those values might be is not here suggested; the point is the lesser, albeit highly important, one of underscoring the need for stating that standard in the context of asking: What is the population problem? Problems, however, may not be readily apparent. Neither their existence nor their magnitude is always an obvious phenomenon. A problem must be perceived before it can be faced or controls can be imposed. In population matters, it is important that problems be anticipated, that conditions not be permitted to reach a point where effective social action is rendered impossible. That this calls for a new type of thinking from "pragmatism" or "empiricism" is obvious. Problems must be identified at their incipient stage.

Furthermore, problems are perceived from the perspective of the commentator or actor. What is a

problem?, in other words, depends in significant part on the personal valuations of the commentator. This requires-in present context-that attention be paid to the extent to which those valuations may impinge on the analysis and exposition of the legal writer. Personal value preferences inevitably and unavoidably color all legal analysis.5

Furthermore, decision-makers in official and other contexts also carry personal valuations with them. For example, Supreme Court Justices are not normatively neutral when they decide cases. They, too, carry what Justice Holmes once called intellectual "can't-helps" around with them.6

Since subjective values permeate legal decisionmaking and writing, anyone who works in a matter so fraught with contention and debate as population at once must try to be as disinterested and dispassionate as possible and must recognize that he cannot be wholly so. Accordingly, he should, as Gunnar Myrdal has effectively argued, state his value premises so that the reader may be aware of them-but with the realization that it is of course difficult beyond measure to be fully explicit.7 In briefest terms, I approach this study from the frame of reference of one who believes in an "optimum" population, with that optimum at a level that will permit the fullest realization of individual freedom and human dignity. Obviously, those terms are of high-level abstraction; but that is unavoidable. To become more precise would itself require a separate study. Put into numerical terms, I believe that the 205 million Americans counted in the 1970 census already are enough, even for such a large land mass as the United States of America. My beliefs concerning population are grounded on the idea that continued population growth in this country and around the world at best will result in a restriction of personal freedom and levels of consumption. At worst, it will bring about political chaos and mass starvation. In observing that the present earth's population of three billion will more than double in thirty-five years, and at a rate of one billion every eight years thereafter, President of the World Bank Robert McNamara states that projections beyond that are unreal because . . . "they will not come to pass because events will not permit them to come to pass.... Of that we can be certain.... What is not so certain is what those events will be. They can only be: mass starvation; political "8 chaos; or population planning.'

THE CONSTITUTIONAL FRAMEWORK

We begin with some truisms.

First, the Constitution deals only inferentially and remotely with population matters. The Indian tribes are mentioned (as are slaves before the Thirteenth Amend

ment); naturalization is one of the powers of Congress; government is proscribed from depriving a person of life or liberty "without due process of law"; and no person is to be denied "equal protection of the laws." That is obviously completely insufficient as a guide either to policy-making by Congress (or the states) or as more than a datum for Supreme Court decision-making. It cannot be repeated too much or too often that the great generalities (and silences) of the Constitution provide nothing more than a point of departure for constitutional decision-making; and further and of more impor tance, that constitutional decisions are not logical derivations from the text of the fundamental law. In addition, it is necessary to know that what is often termed "the intention of the framers" of the Constitution is usually not ascertainable. Certainly, it is not insofar as population is concerned. Constitutional decision-making must, then, proceed in a different way from what the American myth postulates as the ideal model.9

Second, the ideal of constitutional decision-making is, in the words of Dean Edward Levi, a "pretense"; the reality is otherwise.10 In the context of population policy-making, what is available are some scattered judicial decisions (some of which bear directly on portions of the population problem) which cannot remotely be said to state any definitive law. Necessary, then, is reasoning by analogy and by projecting possible decisional trends into the future. Above all, the constitutional doctrines must be seen in factual settings. Not for nothing does the Supreme Court refuse to give advisory opinions. It is only by viewing constitutional questions in specific contexts of factual situations can a true evaluation of the difficult task of decision-making be undertaken and performed with any adequacy. In other words, the facts-whatever they may be for any given policy-are all important, as important surely as the "law" that will be applied (by analogy or extrapolation) or created.

That is the third truism: That the constitutional law of population policy-making, taken as a whole, will involve the creation of new law. This can be done in more than one way, as will be shown below, but main concentration in this study is upon the Supreme Court and its ability both to legitimate policies enunciated by the political branches of government-"constitu tionalize" them, so to speak-and to state norms itself toward which society as a whole might aspire or which the political officers of government would translate into operational reality. "Creating law" is a synonym for "policy-making," which means that the Court possibly will be as deeply involved in population matters as the Congress. Far more likely, however, is a cooperative endeavor by all branches of government, the political as