What’s Wrong with the World

A tax would certainly be the safest route as anyone has the right to use force in defense against a forced abortion or sterilization, including on behalf of another. Those things are ipso facto unjust to the point of a gross crime against the very humanity of the victim.

Of course, my reading of Romans 13 emphasizes the point that the state is God's servant, so my natural inclination is to say that the authority of the state is, in all times and places, contingent upon it acting according to God's will. Outside of that, it has no authority except which it gets by the barrel of a gun.

I think that's the just way most law professors teach. A survey of questions from tests and in-class dialogue would likely turn up all sorts of off the wall questions. I wouldn't read too much into this.

Without going too deep in the weeds, i would guess that attempting to limit family size would hit all sorts of constitutional issues.

True that law professors love questions like the guy who jumps from a building intending to kill himself and someone shoots him dead on the way down.

On the other hand, I can't help recalling this bit of dialog from Life is Beautiful:

"Third grade. Listen to this problem. I remember it because it shocked me--
A lunatic costs the state four marks a day.
A cripple, four and a half marks.
An epileptic, three marks and a half.
Considering that the average is four marks a day...
and there are 300,000 patients, how much would the state save if these individuals were eliminated?"

"I can't believe this!"

"That was my exact reaction. I can't believe a seven-year-old child has to solve this kind of equation. It's a difficult calculation. Proportions, percentages. They need at least some algebra to do those equations. That's high school material for us."

"No, all it takes is multiplication. You said there are 300,000 cripples? 300,000 times four. If we killed them all, we'd save 1,200,000 marks a day. It's easy!"

"Exactly! But you're an adult. They make seven- ear-old children do this in Germany. It's truly another race."

Great point Scott.

Funny how this all ties in with the discussion on health care.

Scott, that's a very funny bit of dialogue. In a dark sort of way.

I echo the sentiment that this is par for the course for law school hypotheticals. The proposal calls for the consideration of several areas of unclear jurisprudence, not all of which are normally related. As a purely positive-law exercise, it's actually somewhat stimulating and challenging, at least under the hot, demented mess that is modern constitutional jurisprudence. A similar hypothetical was addressed to my Con Law II class at Notre Dame, although I might add that the professor teaching that class wouldn't honestly be described as one of our leading luminaries.

Also, it's highly unlikely that this was an assignment for the entire law school. I can't think of a mechanism by which the school could assign something like that to the entire student body. Maybe it could be a writing competition prompt, but that would be voluntary. It's probably an exam or short paper question or an in-class hypo.

Could it be that this is a method by which ideas that Mother never taught you are inculcated in the heads of a future J P Stevens, get all that old fashioned mush out of fertile minds, replace it with new mush, progressive mush, the best kind?

After all. a duty of the modern school is to prepare young folk for a lifetime of plasticity, or is it pragmatism?

I am going to do a bit of devils' advocacy here, just for logical practice. Please don't assume that I actually believe what Lydia described is a good idea.

Assume that the Earth has been filled with humans to the tune of 1 person per acre (see, I am starting out silly). Now, read back to Genesis: God blesses Adam and Eve by saying "be fruitful and multiply, and fill the earth." A putatively Christian state declares: the " 'fill the earth' part in Genesis has been met. God's declaration no longer implies that it is is a social blessing for you to have more than the replacement # of children. Since some people don't get married, and since some people who get married have only one child, the 'replacement level' appears to be about 3 kids per married couple that intends to meet replacement level."

Now, also suppose that the state does a study and finds that at net, having a large family (financially) costs society more per person than having 3 kids. The numbers come out that over an 18-year childhood, the average cost to society is $10,000 per extra kid, and over his remaining lifetime is it another $10,000. (This is an obvious oversimplification, since the real costs would presumably go up with each additional child).

As a result of this finding, some portion of wealthy and happy couples take it upon themselves to choose BOTH to have more than 3 kids and to pay the state and other social entities an average amount of 20,000 per extra kid over the kid's first 18 years. For these kids, theoretically society bears no extra financial burden. Some very wealthy families go out of their way to pay extra amounts "for those families who find it difficult to meet that $20,000 amount" so society bears no extra financial burden even for those kids.

Has anything happened here that is clearly contrary to God's law? And, would the state be definitely in the wrong if it did something more strenuous than simply point out the costs and let people take it from there?

Note that, as written, the question asks the student to answer "Yes" or "No" and then justify that stand. It's not necessarily a monstrosity.

While this is probably just another classroom hypothetical, we should look at what hypotheticals are being considered for a sense of where the professoriate thinks the country might go.

For instance, if obscenity or federalism are considered dead issues by the faculty, there will be fewer classroom hypotheticals on those issues.

Then again, free student labor subsidizes activist movements. Even better, they pay for the privilege of working for their professors.

Recently I read that Griswold v. Connecticut (or a similar decision on contraceptives) was launched as a classroom project by Yale law students. Most student and professor activism doesn't go anywhere, but how do we distinguish that from activism with a future?

While this is probably just another classroom hypothetical, we should look at what hypotheticals are being considered for a sense of where the professoriate thinks the country might go.

Yes, that's what I thought.

Actually, I summarized the way the question went on. It told them to construct arguments for _and_ against the constitutionality, etc. Which is, of course, typical legal and debating practice: Be able to construct arguments on both sides.

But it's absurd to think this would be constitutional. Thus, there is something to me very creepy about asking them to construct arguments _for_ its constitutionality. It's a "satire is dead" moment. What's next? "Construct arguments for and against the constitutionality of genetic testing of all citizens followed by eugenic sterilization." Hey, it's just a hypothetical. What's the matter?

Here's another:

"Assume that scientists have shown beyond reasonable doubt that some races are inferior to others. Assume that the population of the inferior races has reached such levels as to place a serious strain on our nation's resources, including law enforcement. Construct arguments for and against the constitutionality of a federal law requiring sterilization of all members of inferior races."

Hey, it's just a hypothetical!

Lydia at 8:13: A hit. A very palpable hit.

The obviousness is much of what makes the question challenging. The student is welcome to provide bad arguments for the constitutionality of such a law, if desired.

Okay, James, then tell me: If the hypotheticals can be _totally out in left field_ and if they have nothing whatsoever to do with social trends, with pushing the envelope, with plausibility or hoped-for future plausibility or policy, then what about my suggestions? Would they be just interesting and "challenging" at law schools? Hey, it's part of the _challenge_ that these things are blatantly unconstitutional, right? Why is the one discussed in the main post being done as a hypothetical and not the racial one? Nothing to do with political correctness and what ideas are of actual interest among the elites, I'm sure. (By the way, I've done a couple of other posts showing that the leftist green types are indeed expressing admiration for China's one-child policy and toying with notions of population control in the West, because rich westerners create so many "greenhouse gases," etc. So it's not like the ideas aren't out there being advocated culturally.)

I had never heard of the Population Research Institute. I looked at the website, and they say it's a myth that the world is overpopulated. I suppose it's a matter of what one means by "overpopulated", but this graph

http://one-simple-idea.com/WorldPopulationGrowth2025.jpg

demonstrates the phenomenal growth in world population in the last 150 years.

I suppose in theory the world could sustain these numbers, but does one really want to live in a world of rife megacities, unending development, and disappearing forests?

At the current growth rate of the U.S.

http://video.google.com/videoplay?docid=4094926727128068265#

many of the pretty, rural areas of the U.S. will be developed within the next 100 years to accommodate the population explosion.

And it's even worse in the Third World: every single resource is exploited (from trees to fresh water to babies). Furthermore, foreign aid only encourages women to have more children than they can afford. In Haiti, for instance, most women cannot even afford to take care of one child. In a world where nature were allowed to run its course, they wouldn't have hardly any children. But because of foreign aid, they are having four children each on average. I do not believe this is sustainable in the long term.

Likewise, welfare encourages people to have children who wouldn't otherwise. Without welfare, there would be no need for "baby quotas." Perhaps one of the best strategies to fight the population explosion would be to end all foreign aid and to end all welfare.

Looks like Mr. Malthus is visiting my thread in person.

Lydia,

No, perhaps my post came off a little harsher than it should have.

Do you think the world is underpopulated? Do you disagree that foreign aid encourages women in the Third World to have children they would not otherwise have?

Just curious. I find this to be a very interesting - and depressing - subject.

Or, to put this way, would you have the situation reach a point that we have an intrusive national (or world) government imposing "baby quotas" -- or would you prefer that we just cease all foreign aid and welfare? The latter would be cheaper and would certainly curb population growth (at least from studies I've read) but would still allow those who want, and can afford, to have many children to do so.

Lydia, your 8:13 a flop. We have already been there & done that, the "three generations of idiots" thing with related medical "care".
You're so yesterday.
In any case don't go giving the left any bad ideas or reviving the old ones, they do a splendid job on their own.

On the subject of population controls, it has always struck me as a complicated question, one that is oversimplified on both the pro- and anti-Malthus sides.

Consider the obvious economic fact that Julian Simon pointed out to Paul Ehrlich, that more people create greater demands upon resources, and that this demand leads to increases in production and the discovery of new ways to utilize resources. The same thing happens in just about any resource we can name - increased demand taxes the resource, and then human beings either find new and more efficient ways of utilizing said resource or they cease to use the resource, finding another one. In this way Malthus has been wrong consistently for over 200 years.

But, and perhaps this is some innate pessimism, can it always continue thus? Will we always be able to find the technological or economical fix in time, or will we at some point run over a cliff with at least one vital resource.

It appears to me that what the Malthusian takes to be static progressions of increase in food supply versus increase in population (the one arithmetic, the other geometric) is in fact dynamic and subject to many varying factors, which is why things have, on the whole, gotten much better (materially) in much of the world for the past several centuries. I just think we should be cautious about speculating whether it can always continue like that. Thankfully it appears, if we can population projections, that we are set to level off in mid-century.

As for the main topic of this thread, I think there is something to the above suggestion that law schools are asking questions about the constitutionality of things they believe are likely to be future social issues. The specific choice of topic probably reflects the personal interest of the professor asking the question, though I am not certain whether we can read into the question whether such a hypothetical law could be constitutional.

Sorry, correction of last post:

"... though I am not certain whether we can read into the question whether such a hypothetical law could be constitutional."

Should be:

"... though I am not certain whether we can read advocacy of such a law into the proposing of the question."

The state has a responsibility for its citizens' well-being. In this capacity it is legitimate for it to intervene to orient the demography of the population. This can be done by means of objective and respectful information, but certainly not by authoritarian, coercive measures. the state may not legitimately usurp the initiative of spouses, who have the primary responsibility for the procreation and education of their children. It is not authorized to intervene in this area with means contrary to the moral law. -(CCC 2372)

Clearly there is an upper bound on population. There is only so much arable land on Earth, and only so much total land. We can't create any more. MA Roberts is right that the third world currently has unsustainable population growth. Take Bangladesh for instance, 160 million people in an area about the size of Iowa.

Asking students to perform this kind of task needn't be at all pernicious. I spent the last month asking my students to justify our practice of celebrating our birthdays, but not celebrating our deathdays. In the course of this, I asked that they produced arguments against our practice. The purpose of this exercise is to get them to think more carefully about the metaphysics of time, our attitudes about time, our attitudes about value, the good of life, the badness of death, the relations between these, etc.

This strategy instantiates what I understand to be fairly standard practice among teachers of philosophy -- whose goal is to produce an understanding of the inferential structure of intellectual problem spaces.

It was not to sneakily initiate them into some kind of culture of death. [Of course, that is what I would say, if it was my goal to initiate them into a culture of death...]

Perhaps a religious conservative has put her law students to this task in order to get them to understand what you take to be the obvious legal conclusion.

Asking students to perform this kind of task needn't be at all pernicious.

"Assume that scientists have shown beyond reasonable doubt that some races are inferior to others. Assume that the population of the inferior races has reached such levels as to place a serious strain on our nation's resources, including law enforcement. Construct arguments for and against the constitutionality of a federal law requiring sterilization of all members of inferior races."

The purpose of a law school hypothetical isn't to indicate where the professor thinks society is headed. The purpose is to test the students familiarity with the relevant law. Lydia's hypothetical doesn't do that, as to the extent the example raises constitutional questions the answers are straightforward and obvious. A student could have slept through every class and used the pages of his casebook to roll joints and he'd still be able to answer the question about as well as a star student.

A throughout answer to the population control hypo, by contrast, would require the student to show proficiency in discussing the Court's substantive due process clause and commerce clause jurisprudence, to cite two examples. The example is also good in that it requires opponents of the law to build their case using doctrines they ordinarily don't like that much, and visa versa. For instance, one major argument against the law would be that it would violate citizens' reproductive rights as protected by Roe v. Wade. Yet those who are most opposed to population control measures tend also to dislike Roe v. Wade, and would probably be inclined ordinarily towards Justice Scalia's arguments against substantive due process (Scalia has said, in fact, that he doesn't think the Constitution contains special protections for the family). By contrast, arguing in favor of the law requires one to take a more anti-Roe/pro-Scalia position than some students might otherwise be inclined to take.

Thank you for answering the question. I think the answer tends to confirm Lydia's concern: that under this week's understanding of conlaw among the legal profession, coercive population control measures are more respectable and feasible than many might assume outside the profession; especially if they were spun as a "tax".

Thanks, Zippy, you said that more succinctly than I would have.

I do think Blackadder confirms a point I made in an earlier thread (no time to look it up now) to the effect that, all other natural and general constitutional limits on federal power having been abandoned, the substantive due process jurisprudence may be one of the only things _now_ standing between us and all manner of horrific tyranny. Which is ridiculous. "Accept the sweet mystery of life school of constitutional law or acquiesce in Big Brother's controlling every aspect of your life." Ha ha. It's not as though I think the law schools are exactly chock-full of ardent Federalist Society members, but how clever to construct a hypothetical to rub the faces of any of them who happen to be in your class in this postmodern "fact" of contemporary jurisprudence.

Lydia's question just isn't interesting as the law and science is pretty well settled - not "anathema" just too easy. Once race and the creation of separate classes enters the picture there isn't anywhere to go given the current state of the law. It just isn't the equivalent of the law school question which doesn't appear to involve race but arguably involves the unavoidable creation of classes.

"Would the United States Constitution permit a law that limited people to having two biological children?" I have to wonder if the newsletter got the question right as the wording doesn't make sense. Replacement level is usually expressed a around 2.1 children per woman, I believe. Including men in the law would give us a rapidly increasing population which isn't the stated intent.

"(By the way, I've done a couple of other posts showing that the leftist green types are indeed expressing admiration for China's one-child policy..."

Not all "leftist green types" it should be noted. Single issue types, left and right, tend to ignore things like basic constitutional rights. That is a good reason to eschew single issue politics.

"Assume that scientists have shown beyond reasonable doubt that some races are inferior to others. Assume that the population of the inferior races has reached such levels as to place a serious strain on our nation's resources, including law enforcement. Construct arguments for and against the constitutionality of a federal law requiring sterilization of all members of inferior races."

Sounds like an interesting exercise... though perhaps to be avoided in the classroom for tactical reasons.

al,
I understand how it would be unconstitutional to make a law to limit family size, what I don't understand is how incrementally reducing the current tax benefits on more than three children would be the same as a legal restriction, unless it can be shown society has an unlimited financial interest in promoting population growth. Lydia's hypothetical is premised on the idea that there is such a limit.

If we wanted to do it through the elimination of deductions, I don't see a constitutional problem, just a huge political problem. That is a non-starter as long as we have representative government.

Suppose the professor in Lydia's hypothetical is actually a teacher of political science. Suppose he is interested in testing whether students are capable of digging into legal history a bit to discover a doctrine that was overturned and repudiated? That is, suppose his purpose is to discover if he has in his class anyone with a real talent for teasing out and synthesizing doctrines and arguments from the Revised Statutes and so forth? students with able historical as well as legal minds?

From a position of sheer Socratic detachment, we could learn a lot from discovering how, say, the sharpest students had the intuition to look through old Confederate law, as well as through the works of the antebellum Southern statesmen, those pitiful men whose minds were wrecked by their need to defend their peculiar institution.

If Socrates did that -- especially if he did it in a way that made the rest of us suspect he was really teaching more subtly the evil proposed in the hypothetical -- we might sentence him to death just like the Athenians.

And who am I to say us nay, we who might render again on Socrates, that terrible sentence?

I realize that it's not the case that all those who disagree with me have to agree with each other, but it's interesting to me that James Cunningham's defense of the hypothetical in the main post is at odds with Blackadder's and Al's dismissal of my alternative hypothetical: If the blatant unconstitutionality of some proposal makes it more challenging as a classroom exercise, because students have to work harder to construct arguments on the "for" side of its constitutionality, then my hypothetical ought to be a winner.

In any event, the "it's too easy" response merely emphasizes the fact that evidently the hypothetical actually being used _isn't_ considered "too easy" in the current state of precedents in con-law, which is a chilling thought.

Lydia, most of these questions are posed from a "spot the issues" perspective, not for or against. Maybe someone can help us out but I can't see a "for" in your example. There's no challenge; it's simply not there.

The example you first posted didn't ask for a for and against, it asked if it was constitutional. I would like to see anyone come up with a "for" there too, it's just inserting race in yours makes it too easy. Also I have to wonder if the wording is accurate as well as the class. If this was the way of initiating a discussion of Equal Protection and SDP you would likely not be upset at the arc of the discussion. Someone might even bring up Privledges or Immunities.

Re: our earlier discussion on federalism. There was a reference to Buck above (s/b "three generations of "imbeciles") Note that the denial of rights came at the state level.

I do think Blackadder confirms a point I made in an earlier thread (no time to look it up now) to the effect that, all other natural and general constitutional limits on federal power having been abandoned, the substantive due process jurisprudence may be one of the only things _now_ standing between us and all manner of horrific tyranny.

My own view would be that conservatives dabble in substantive due process at their own peril. I can think of a few cases where invoking the doctrine led to good results, but the basically all pre-date FDR.

The truth is that there are lots of horrible things the government could do that would be perfectly constitutional. What prevents them from happening is not the Constitution but democracy (indeed, whenever even clear constitutional provisions conflict with popular opinion it is the provisions that tend to give way).

Lydia's hypothetical doesn't do that, as to the extent the example raises constitutional questions the answers are straightforward and obvious. A student could have slept through every class and used the pages of his casebook to roll joints and he'd still be able to answer the question about as well as a star student.

The example you first posted didn't ask for a for and against, it asked if it was constitutional. I would like to see anyone come up with a "for" there too, it's just inserting race in yours makes it too easy.

Oh, come on, you people don't have any kind of imagination, do you?

Suppose the mechanism is a little more subtle. There is a pandemic of a new virus, virulent, pernicious, and even less susceptible to cure than AIDS. It is found that certain people are carriers, without getting the disease very much. Upon further study, the carriers are found to harbor a certain gene. That gene is found in 95% of blacks, and in 6% of non-blacks. The proposed public health alternatives don't include sterilization as that wouldn't do anything for the current generation, they include things like "containment zones" (no, really, not a ghetto, honest). And blacks are not targeted due to skin color at all - if they are one of the 5% who don't have the gene, they don't get shoved into these containment zones (except for the mistakes, of course. But hey, that was just a mistake, no hard feelings.) So the race laws don't come into play, at least some people say they don't, other people say they do. Does the Constitution give Congress the power to legislate this (say, in virtue of the virus crossing state lines, anyone?).

Jeepers, you would think that people never heard of trying to think through the limits of current law.

My own view would be that conservatives dabble in substantive due process at their own peril.

Blackadder, that was kind of my point when I discussed your comment. In my opinion, that's why we needed, and _had_ until they were all thrown out, other, broader, and more obvious constitutional limits on federal power.

"I cannot believe that my entire class can be so dim-witted. The obvious answer to this question is, 'Who is paying me and how much?' I certainly hope you all consider this if you hope to ever pass this class.

"In my opinion, that's why we needed, and _had_ until they were all thrown out, other, broader, and more obvious constitutional limits on federal power."

I'm not sure what has been thrown out save for Privileges or Immunities in Slaughterhouse and the incorporation issues in Cruikshank and the Civil Rights Cases and those were done by conservatives.

We should not be too idealistic about certain aspects of our Constitution. This is especially the case with provisions that seem to limit federal power against the states. These provisions are often rooted in the less pretty aspects of our history. An example from Article I:

"Clause 4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

Protection for virtuous citizens from taxation by the evil federal government? Not so much, more like protecting slave owners. Justice Paterson in Hylton (1796):

"he constitution declares, that a capitation tax is a direct tax; and both in theory and practice, a tax on land is deemed to be a direct tax... The provision was made in favor of the southern states; they possessed a large number of slaves; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the states had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation. The southern states, if no provision had been introduced in the constitution, would have been wholly at the mercy of the other states. Congress in such case, might tax slaves, at discretion or arbitrarily, and land in every part of the Union, after the same rate or measure: so much a head, in the first instance, and so much an acre, in the second. To guard them against imposition, in these particulars, was the reason of introducing the clause in the constitution."

Tony, your example means that we have about 28,000,000 black carriers and 16,000,000 non-black carriers i.e. the black carriers will soon be irrelevant. As the black carriers are easy to avoid, it is hardly necessary to contain them. The non-black carriers interest me more as they are more of a threat. What do we do? California passes a law requiring genetic testing and sets up checkpoints at the state line barring the untested. Constitutional? How about a state or federal law mandating testing? The Supremes have been deferential in the past to public health issues Buck, Jacobson, etc.

"According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." Halan in Jacobson (1904)

Al, you missed the fact that not all of the people who have the gene are in fact carriers. I only said everyone who is a carrier has this gene.

But that's beside the point. Your further comment makes it clear that you, at least, think that restriction laws should be in play. I can guarantee you that there would be plenty of people who think that's absolutely outrageous, that such restrictions are just as clearly and definitively beyond the pale as, say, putting people in prison for sodomy. And so it is a more interesting legal question. That's all my example was supposed to do, show that it is readily possible to come up with interesting racial legal questions.

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