SOME SELECTED AEI PUBLICATIONS Matching Needs and Resources: Reforming the Federal Budget This volume continues AEl's series of annual reviews of the federal budget. It includes a summary of the programmatic content of the new budget and a discussion of the fiscal policy that the budget proposes. Also considered are three topics of intense current debate: federal income tax reform, wage-price controls, and reform of the congressional budget process. Economic Policy and Inflation in the Sixties Phillip Cagan, Marten Estey, William Fellner, Charles E. McLure, Jr. and Thomas Gale Moore. $8.50 (hardcover), $4.50 (paper) This volume is a collection of five studies examining the economic problems of the 1960s and the attempts of three national administrations to solve them. By reviewing policies so soon after they were put into effect, the authors are able to place decisions within the context of the difficulties policy makers faced. Nixon, McGovern, and the Federal Budget David J. Ott, Lawrence J. Korb, Thomas Gale Moore, Attiat F. Ott, Rudolph G. Penner and Thomas Vasquez. $2.50 This is the first report from the AEI Long-Range Budget Projection Project, which is studying the budget outlook for the last half of the 1970s. It finds that presidential candidate George McGovern's programs would require a substantially higher level of federal expenditures and taxation than those of President Nixon. But the two sets of programs would generate similar deficits, even at full employment, the study calculates, unless taxes are raised or expenditures reduced. Employment Policy at the Crossroads: An Interim Look at Pressures to be Resisted William Fellner. $2.00 This monograph addresses the inflation-unemployment dilemma and ways of coping with it. The author believes that trying to achieve a 4 percent unemployment rate through expansionary monetary and fiscal policies would gravely risk a revival of accelerating inflation. He suggests a "second-best solution" to the problem, taking account of the slowly changing characteristics of the U.S. labor force and wage structure. Urban Renewal: National Program for Local Problems Professor Weicher critically assesses federal attempts to deal with the deterioration of America's urban areas. Reviewing the 23-year record of the national urban renewal program, he finds little justification for its continuation, and suggests other methods for coping with urban ills. STATEMENT OF LAURENCE H. TRIBE, PROFESSOR OF LAW, HARVARD UNIVERSITY Mr. TRIBE. Thank you, Mr. Chairman. It is an honor to be here to address this important issue. Like my colleague John Ely, I have also written an article on the subject. I come out at the opposite end of this issue, defending the Court's decisions, although not all the reasons the Court gave. I have submitted that article for the record, in case you find it useful. Senator BAYH. We will also put that in the record, without objection. [The document referred to follows:] THE SUPREME COURT, 1972 TERM FOREWORD: TOWARD A MODEL OF ROLES IN THE DUE PROCESS OF LIFE AND LAW by LAURENCE H. TRIBE Reprinted From HARVARD LAW REVIEW Copyright 1973 by THE HARVARD LAW REVIEW ASSOCIATION Cambridge, Mass., U.S.A. VOLUME 87 NOVEMBER 1973 NUMBER 1 HARVARD LAW REVIEW U THE SUPREME COURT FOREWORD: TOWARD A MODEL OF ROLES IN THE Laurence H. Tribe * ́NLIKE Yeats' "rough beast, its hour come round at last,' "1 substantive due process may yet enjoy an auspicious second coming. For the Supreme Court's 1972 Term points the way toward a conception of substantive due process that may avoid the fate of that doctrine's earlier incarnation in American constitutional law. This Foreword will venture a tentative exploration of the "widening gyre" 2 implicit in several of the Court's recent decisions. I. Roe AND Rodriguez: THE CHALLENGE Last year in these pages, Gerald Gunther proposed a revitalized enforcement of the constitutional requirement that legislative means substantially further legislative ends. For the pragmatic reason that "due process carries a repulsive connotation of value-laden intervention for most of the Justices, of the Burger Court as well as the Warren Court," Professor Gunther suggested that the inquiry could "best be carried forward under the banner of equal protection rather than due process . . . ." But in San Antonio Independent School District v. Rodriguez, its major opportunity this Term to scrutinize a means-end relationship * Professor of Law, Harvard University. B.A., Harvard, 1962; J.D., 1966. This Article was prepared in connection with research supported in part by the Childhood and Government Project at the University of California, Berkeley. I wish to express my gratitude also to the Editors of the Harvard Law Review and, for their many helpful comments, to Sissela Bok, Paul Mishkin, and Carolyn Tribe. 1 Yeats, The Second Coming, in 2 THE OXFORD ANTHOLOGY OF ENGLISH LITERATURE 1700 (1973). 2 Id. 3 Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Protection, 86 HARV. L. REV. 1, 20 (1972) [hereinafter cited as Gunther]. 2 HARVARD LAW REVIEW [Vol. 87:1 under the equal protection clause, the Court seemed disinclined to give the rational connection rule much bite, sustaining school finance schemes on a basis that three of the dissenters thought reduced "equal protection analysis [to] no more than an empty gesture.' ." And in Roe v. Wade and Doe v. Bolton, when the Court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.10 8 I will venture no predictions in this Foreword about where the Court will turn next, but I will suggest a framework in terms of which the contrast between the abortion and the school finance decisions may be comprehended, a framework which I believe offers a fair chance of giving substantive due process a more respectable place in American constitutional law than it has enjoyed since 1937." 11 II. EXPLORING THE Roe OPINION: INITIAL OBSERVATIONS The Court in Roe expressly concedes the legitimacy of what it deems to be the state's interests, the protection of the pregnant 'Id. at 68 (White, J., dissenting, joined by Douglas and Brennan, JJ.); see id. at 70-72, 127-30 (Marshall, J., dissenting); Goodpaster, The Constitution and Fundamental Rights, 15 ARIZ. L. Rev. 479, 519 (1973). See also Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719 (1973), noted p. 94 infra; Mahan v. Howell, 410 U.S. 315 (1973), noted p. 85 infra. 8 410 U.S. 113 (1973), noted p. 75 infra. 9 410 U.S. 179 (1973), noted p. 75 infra. 10 The resurgence of the due process clause as an independent source of doctrine apart from the "incorporated specifics" of the Bill of Rights was also evident in several of the Court's criminal procedure decisions this Term. See, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973) (procedural due process violated by the combined operation, against the accused, of the state's rules barring hearsay and those barring impeachment of one's own witness); Wardius v. Oregon, 93 S. Ct. 2208 (1973) (procedural due process requires state to inform accused of its intended rebuttal witnesses if it insists on receiving pretrial notice of intent to offer alibi defense); cf. Washington v. Texas, 388 U.S. 14 (1967) (incorporating specifically the compulsory process clause of the sixth amendment). 11 In West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the Court sustained minimum wage legislation in overruling Adkins v. Children's Hosp., 261 U.S. 525 (1923), and initiated the overturning of an entire series of cases like Lochner v. New York, 198 U.S. 45 (1905), which had struck down as violative of due process a state law limiting to 10 hours a day and 60 hours a week the length of time bakers could work. See also Nebbia v. New York, 291 U.S. 502 (1934); note 35 infra. In some respects, this Foreword might be regarded as a response to the mounting fear that "the remainder of this century could be witness to Lochner's ghost in the service of another cause." Strong, The Economic Philosophy of Lochner: Emergence, Embrasure and Emasculation, 15 ARIZ. L. REV. 419, 455 (1973). |