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The Population Explosion and United States Law, 22 Hastings L.J Hastings Law Journal Volume 22 | Issue 3 Article 7 1-1971 The opulP ation Explosion and United States Law Johnson C. Montgomery Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Johnson C. Montgomery, The Population Explosion and United States Law, 22 Hastings L.J. 629 (1971). Available at: https://repository.uchastings.edu/hastings_law_journal/vol22/iss3/7 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The Population Explosion and United States Law By Johnson C. Montgomery* THE Population explosion is the unique problem of our age. Its magnitude has only recently been recognized, and consequently, there is no existing body of law dealing with the questions raised by the neces- sity of instituting population control measures. That there is a "right" to found a family and have children cannot be seriously questioned. What limitations can be imposed on that right, however, is one of the most serious problems that will confront our courts in the future. Its resolution will require a critical analysis of the governmental powers that might be used to deal with the problem, and the limitations on the exercise of those powers. Reasonable men differ as to the seriousness of the population prob- lem, and the legal solution adopted necessarily depends on a factual determination of the degree of crisis overpopulation represents. Be- fore discussing the various means with which we might try to curb population growth, therefore, it may be helpful to examine briefly the extent of the problem. I. The Problem A. The Population Explosion 1. The World Population Man has been present on the earth for only a small fraction of the planet's existence. If the 4.5 billion-year history of the earth were likened to a day, man has been here for well under 1 minute.' During the first few million years of man's history the human population did not exceed three million persons. It did not reach five million until about 8,000 B.C., and did not grow to 500 million until around 1650. Since then growth has continued unabated; the popu- lation doubled to 1 billion by 1850, doubled again by 1930 and by 1970 it had nearly reached 4 billion. The doubling time is now less * B.A., 1955, Harvard College; LL.B., 1959, Stanford Law School; member, California State Bar, Santa Clara County Bar. @ Johnson C. Montgomery 1971. 1. See I. TYDINGS, BoRN TO STARVE 7 (1970). [6291 THE HASTINGS LAW JOURNAL [Vol. 22 than 37 years.2 Most intelligent people are aware that there is a population prob- lem,3 but few comprehend its suddenness or its magnitude. Consider figure 1 below: 7 E 5) 6Old Stone '" 0 Age .E 5 - (not to Bronze MiddleW scale) New Stone Age Age Iron Age Ages :OE .102 C 0 C CL < - 0 1 0- . 0 500,000 8000 7000 6000 5000 4000 3000 2000 1000 B.C.IA.D.1000 2000 - years The suddenness of the problem can be understood by extending the base line beginning at 8,000 B.C. back for the full period of man's existence. Were the graph drawn to scale to show the entire base line, it would be more than 150-feet long to the left. Similarly, the magnitude of the problem can be visualized if the curve were extended forward in time; the entire world from core to outer atmosphere would be solid people in 1,000 years and the mass of humanity would be ex- panding outward at the speed of light by the year 5,700. The present pattern of man's growth obviously will not continue indefinitely; the laws of physics and biology make it impossible.' The 2. P. EHRLICH & A. EHRLICH, POPULATION RESOURCES ENVIRONMENT 5-23 (1970) [hereinafter cited as EmLICH & EHRLICH]. 3. From the late 1700s when Thomas Malthus first published his AN ESSAY ON THE PRINCIPLE OF POPULATION (1798) until the mid-twentieth century, little attention was given to the population problem. Recently there have been a number of excellent publications which prove conclusively that the population problem is not merely a Malthusian notion made irrelevant by technological advances. See, e.g., G. BORGSTROM, Too MANY (1969); P. Cloud, Mineral Resources From the Sea, in RE- SOURCES AND MAN (1969); R. DUMONT & B. ROSIER, THE HUNGRY FUTURE (1961); P. EHRLICH, THE POPULATION BOMB (1969); EHRLICH & EHRLICH, supra note 2; K. SAX, STANDING ROOM ONLY (1955); PRESIDENT'S SCIENCE ADVISORY COMMITrEE, THE WORLD FOOD PROBLEM, vols. 1-3 (1967). For additional sources, see the extensive bibliography in EHRLICH & EHRLICH. 4. Fremlin, How Many People Can the World Support?, 24 NEw Scmm-sST 285, 286-87 (1964). It has been persuasively argued that man's recent history consti- tutes a mere, brief moment in the sun-a short period of tremendous production and considerable affluence which cannot continue because it involved a looting and polluting February 19711 POPULATION AND THIE LAW only question is what will bring it to a halt.5 There appear to be only two alternatives: an increase in the death rate, or a reduction in the birth rate. 2. Populationin the United States Many believe that, regardless of the world population problem, the United States itself is not overpopulated. The optimum population size for the United States, however, has been given little attention. It is hoped this problem will be considered by President Nixon's Commis- sion on Population Growth and the American Future.' The United States presently has about 6 percent of the world's population and yet accounts for about 30 percent of the world's con- sumption of nonrenewable resources.7 There is a national pollution problem which in part results from having to produce too much, too fast for too many." It is generally recognized that the nation as a whole does not at present adequately feed, clothe or care for its existing popu- lation, and the situation is apparently deteriorating rather than im- of the planet and a raping of nonrenewable natural resources. See R. REiNOW & L RFNqow, MoMENT iN THE SuN (1967). Certainly if a major catastrophe occurs it will not be possible for human survivors simply to start over again. All easily usable natural resources have already been depleted. Land has been denuded; the tin of Britain, the iron ore of the Mesabi and the tar on the surface of the ground at La Brea are gone. The rise of a new industrial civilization, starting from scratch, is im- possible. 5. It may well be famine. See W. PADDOCK & P. PADDOCK, FAmnm 1975 (1967). The most recent Food and Agricultural Organization reports on 1969 food production fully support the pessimistic view of the world food problem presented by the Paddocks, although the precise time of the onset of catastrophic famines remains an open question. See N.Y. Times, Oct. 4, 1970, at 10, col 1. People unrealistically believe that science and technology can solve our food problems-in spite of detailed analyses showing it cannot. Ehrlich & Holdren, Population and Panaceas: A Tech- nological Perspective, 19 BIOL. SCIENCE 1065 (1969). It involves great risk to rely on science's ability to continue to pull technological rabbits out of hats. The world is finite and magic would be required to make it otherwise. 6. Pub. L. No. 91-213 (Mar. 16, 1970) requires the Presidential Commission to "sponsor.. studies and research and make such recommendations . regarding a broad range of problems associated with population growth and their implications for America's future." The statutory mandate of the commission is broad enough to require study of world population-resource problems. It is the specific duty of the commission to make recommendations by "various means appropriate to the ethical values and principles of this society by which our Nation can achieve a population level properly suited for its environmental, natural resources, and other needs." The composition of the commission gives rise to considerable optimism that sound recom. mendations will be made. The fate of previous reports from Presidential Commis- sions makes it questionable whether such recommendations will be followed. 7. EunIcH & EHRLICH, supra note 2, at 61. 8. See note 12 infra. THE HASTINGS LAW JOURNAL [Vol. 22 proving.0 The optimum population for the United States, or for the world, depends upon value judgments. The number of people the nation can support increases as each individual decides to accept less comfort, privacy and environmental amenity. Few are willing to accept less, however; most want more. Merely to retain the existing amenities, therefore, ultimately depends upon having fewer people to support. Furthermore, the United States cannot separate itself from the global population-resource-environment problem. The earth is a closed system. Each nation depends on the rest of the world and on the func- tioning of the planetary ecosystem for its resources. The population problem cannot be dismissed by any nation simply by relegating the undesirable effects of overpopulation to its less fortunate neighbors. B. The Effects of Overpopulation An authoritative analysis of the undesirable effects of the population explosion is beyond the scope of this article. It is, however, an area that has received increasing attention in recent years. Although there is still much to learn, convincing evidence now exists for many of the potentially catastrophic problems that scientists and analysts are pres- ently attributing to overpopulation. Among these problems are: (1) malnutrition, starvation and the possibility of world-wide famine; 10 (2) anti-social behavior and the disintegration of established social or- ders;1 (3) environmental pollution of staggering proportions;12 and (4) increasing economic costs to every segment of the society, including 9.
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