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Ages in Constitutional Law

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Societal Agents in Law

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Abstract

If society-level properties are the source of the content of law on society-important social activities, change in the properties will bring about new law on these activities. As change occurs in American society, shifts can thus be expected not only in the social topics that the U.S. Supreme Court adjudicates, but also in the substance of the rulings by the Court on the topics and in the rationales that the Court employs for its rulings. To illustrate, the present chapter uses cases in which the Court decided whether the federal Constitution was violated by government action pertaining to each of the following topical categories: sex distinctions and gender roles, pregnancy prevention and pregnancy termination, and support for religion. From the timelines of the cases and the rationales behind the rulings, ages in constitutional law are identified, and sociological agents that may account for these ages are proposed.

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Notes

  1. 1.

    Notes 85 to 87 and their accompanying text in supra Chap. 1.

  2. 2.

    U.S. Const. pmbl. The full text of the preamble to the Constitution is reproduced in note 85 in supra Chap. 1.

  3. 3.

    Compare § 14.3(c) and § 14.46 with § 14.20 to § 14.23 in John E. Nowak & Ronald D. Rotunda, Constitutional Law 756–58, 973–1001, 1215–18 (8th ed. 2010).

  4. 4.

    See Larry D. Barnett, Explaining Law: Macrosociological Theory and Empirical Evidence 250, 253, 269–70 (2015) [hereinafter Explaining Law] (contending that the nature of a modern society can be observed in the law of the society).

  5. 5.

    In supra Chap. 1, see Sect. 1.2 and the portion of Sect. 1.3 that precedes Sect. 1.3.1.

  6. 6.

    United States v. Freeman, 357 F.2d 606, 624–25 (2d Cir. 1966).

  7. 7.

    In supra Chap. 1, see the text that accompanies notes 99 and 156.

  8. 8.

    The Bill of Rights is composed of the first ten amendments to the Constitution. U.S. Nat’l Archives & Records Admin., The Bill of Rights: A Transcription, https://www.archives.gov/founding-docs/bill-of-rights-transcript.

  9. 9.

    The cases covered in Chap. 4 are within the purview of the federal Constitution because they arose from action by government at some level (local, state, or federal). See Russell W. Galloway, Jr., The Government-Action Requirement in American Constitutional Law, 30 Santa Clara L. Rev. 935, 935–36, 939–40 (1990) (reviewing the requirement of government action, and the exceptions to the requirement, for provisions of the federal Constitution).

  10. 10.

    David Cotter et al., The End of the Gender Revolution? Gender Role Attitudes from 1977 to 2008, 117 Am. J. Sociol. 259, 261 fig. 1, 267–68, 271, 272 fig. 3 (2011).

  11. 11.

    Bruno Arpino et al., How Do Changes in Gender Role Attitudes Towards Female Employment Influence Fertility? A Macro-Level Analysis, 31 Eur. Sociol. Rev. 370, 373, 380 (2015).

  12. 12.

    Roy F. Baumeister & Juan Pablo Mendoza, Cultural Variations in the Sexual Marketplace: Gender Equality Correlates With More Sexual Activity, 151 J. Soc. Psychol. 350, 353–54 (2011). Cf. Vicky L. Elias et al., Long-Term Changes in Attitudes Toward Premarital Sex in the United States: Reexamining the Role of Cohort Replacement, 52 J. Sex Res. 129, 132, 136 fig. 3 (2015) (finding that, from 1975 to 2008, Americans became less likely to disapprove of premarital sexual intercourse involving adults).

  13. 13.

    Sessions v. Morales-Santana, 137 S.Ct. 1678, 1692 (2017) (internal citations and quotation marks omitted).

  14. 14.

    Id. at 1698 & n.21.

  15. 15.

    During the almost five decades that have been dominated by this theme, the Court has ruled that government action differentiating women from men is permissible under the Constitution when the action is confined to matters involving the military, deals with the possibility of pregnancy, or offers women an offset to disadvantages they are perceived to have experienced as a class. Norman T. Deutsch, Nguyen v. INS and the Application of Intermediate Scrutiny to Gender Classifications: Theory, Practice, and Reality, 30 Pepp. L. Rev. 185, 237–48 (2003).

  16. 16.

    The cases were identified from §§ 14.20 to 14.23 in Nowak & Rotunda, supra note 3, at 973–1001, and from a search of the Westlaw online library of U.S. Supreme Court cases. The search of the Westlaw online library was undertaken because the treatise by Professors Nowak and Rotunda does not cover decisions announced by the Court after June 2009. Id. at v. The search was done in February 2018 and covered the period from January 2009 onward.

  17. 17.

    J.E.B. v. Alabama, 511 U.S. 127, 135 (1994) (observing that the Court, beginning in 1971 with its decision in Reed v. Reed, 404 U.S. 71, “consistently has subjected gender-based classifications to heightened scrutiny in recognition of the real danger that government policies that professedly are based on reasonable considerations in fact may be reflective of archaic and overbroad generalizations about gender, or based on outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas”) (internal citations and quotation marks omitted).

  18. 18.

    Adkins v. Children’s Hospital, 261 U.S. 525, 540, 553, 556 (1923) (reviewing legislation that set a minimum wage for women but not men in order to “maintain [women] in good health and protect their morals”; concluding that, due to the “changes which have taken place … in the contractual, political, and civil status of women,” the “ancient [social] inequality of the sexes” has “now come almost, if not quite, to the vanishing point”; and holding that the reviewed legislation violated the due process guarantee of the Constitution because of the absence of a “ground for distinction between women and men, for, certainly, if women require a minimum wage to preserve their morals[,] men require it to preserve their honesty”).

  19. 19.

    See §§ 14.22 to 14.23 in Nowak & Rotunda, supra note 3, at 980–1001.

  20. 20.

    During 1972–1982, the Equal Rights Amendment was submitted to and weighed by the states. See Sect. 3.1 in supra Chap. 3. Even though the Amendment was not added to the Constitution, its submission to the states at this time is unlikely to be coincidence. Rather, submission of the Amendment to the states during 1972–1982 was probably a manifestation of the age in which it occurred, that is, an age characterized by a concern with sex distinctions and gender roles.

  21. 21.

    An age that is formed by interpretations of the Constitution may include multiple “outbreaks” of legislation that are within the general topic and theme of the age. (See note 7 in supra Chap. 1.) For ages that experience such multiple outbreaks, theory in macrosociology will need to account for outbreaks that represent subtopics and subthemes of the age.

  22. 22.

    Section 4.2.2 is composed of cases that involved a challenge to regulatory law on the availability of contraception, the use of sterilization, and access to abortion. Law on abortion access included requirements for consent, notification, and a waiting period before abortions are performed; requirements for ascertaining the viability of the fetus prior to abortion; the type of facility in which abortions are performed; and government payments for abortions. The cases in Sect. 4.2.2 were identified from §§ 14.27 and 14.29 in Nowak & Rotunda, supra note 3, at 1009–13, 1029–78, and from a search of the Westlaw online library of U.S. Supreme Court cases. For information on the search of the Westlaw online library, see supra note 16.

  23. 23.

    A plausible argument can be made that the clustering of cases began with the decision of the Court in 1965, that is, with Griswold v. Connecticut, 381 U.S. 479, rather than with the decision of the Court in 1972, that is, with Eisenstadt v. Baird, 405 U.S. 438. The Court has observed that its rulings in both Griswold and Eisenstadt were based on a “constitutionally protected right of decision in matters of childbearing.” Carey v. Population Serv. Int’l, 431 U.S. 678, 688–89 (1977). Since the two rulings had the same subject (viz., contraception) and manifested the same underlying philosophy, they may be considered together despite having been decided seven years apart. In the text, 1972 has been chosen as the start of the age that I discuss because of the possibility that the temporal gap between Griswold and Eisenstadt is important. Nonetheless, when considering ages, seven years is not a long time. Some readers, therefore, may prefer to view Fig. 4.2 differently than I did and select 1965 as the start of the age.

  24. 24.

    Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2309 (2016).

  25. 25.

    Abigail R. Moncrieff, The Freedom of Health, 159 U. Pa. L. Rev. 2209, 2223–24 & nn.65, 66 (2011).

  26. 26.

    Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 911, 914 (1992) (Stevens, J., concurring in part and dissenting in part).

  27. 27.

    Whether the philosophy in constitutional law that contains a right not to procreate also provides a right to procreate (and hence covers government-mandated sterilization) is uncertain. Elisabeth S. Scott, Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 Duke L.J. 806, 812–13 & nn.19 to 24. The U.S. Supreme Court last ruled in 1927 on government-required sterilization of persons who were not convicted felons. Hilary Eisenberg, Note, The Impact of Dicta in Buck v. Bell, 30 J. Contemp. Health L. & Pol’y 184, 189–90, 191 (2013).

  28. 28.

    See supra note 23.

  29. 29.

    Gonzales v. Carhart, 550 U.S. 124, 171–72 (2007) (Ginsburg, Stevens, Souter, & Breyer, JJ., dissenting) (internal citations and quotation marks omitted).

  30. 30.

    Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (O’Connor, Kennedy, Souter, Blackmun, & Stevens, JJ., in an opinion for the Court) (italics in original; internal citations and quotation marks omitted).

  31. 31.

    See supra note 23.

  32. 32.

    Morton J. Horwitz, The History of the Public/Private Distinction, 130 Univ. Pa. L. Rev. 1423, 1424 (1982) (observing that the public/private partition became central in U.S. law during the nineteenth century); Christian Turner, Law’s Public/Private Structure, 39 Fla. St. U. L. Rev. 1003, 1008 (2012). In the instant book, the public/private partition is deemed to be sociological, not economic, in character. Hence, I avoid the term “public sector” because the referent of that term is a government entity or function or a government-owned place.

  33. 33.

    Jeff Weintraub, The Theory and Politics of the Public/Private Distinction, in Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy 1 (Jeff Weintraub & Krishan Kumar eds., 1997).

  34. 34.

    The magnitude of each realm presumably has sociological causes. An agent that is likely to affect the size of the public realm is the stock and use of knowledge. To contribute to an economy, knowledge must be shared and applied by the persons to whom it is available. Increasing knowledge, consequently, is a sociological force that may enlarge the public realm.

  35. 35.

    Thomas A. Garrett & Russell M. Rhine, On the Size and Growth of Government, 88 Fed. Res. Bank St. Louis Rev. 13 (2006). The authors present data on inflation-adjusted spending per capita by the federal government from 1792 onward; the data show that a large, secular rise began shortly after World War I. Id. at 15 fig. 1. Equivalent data on state and local government expenditures are presented for years after World War II. Id. at 17 fig. 5.

  36. 36.

    Participants in the labor force are persons in the civilian noninstitutional population who are classified as either “employed” or “unemployed.” See the definitions of the terms “Labor force (Current Population Survey),” “Labor force participation rate,” “Employed persons (Current Population Survey),” “Unemployed persons (Current Population Survey),” and “Civilian noninstitutional population (Current Population Survey)” at U.S. Bureau of Labor Statistics, BLS Information: Glossary, https://www.bls.gov/bls/glossary.htm#A (last visited June 16, 2018).

  37. 37.

    U.S. Census Bureau, 2003 Statistical Abstract: Mini-Historical Statistics – A Statistical Abstract Supplement, at 52–53 tbl. HS-30 (123rd ed. 2003) [hereinafter Statistical Abstract Supplement], available at https://www.census.gov/library/publications/2003/compendia/statab/123ed/hist.html (last visited June 16, 2018). For 1900, 1910, 1920, and 1930, the rates are from the decennial census of population; for 1940 and later years, the rates are from the Current Population Survey.

  38. 38.

    Id. at 52–53 tbl. HS-30.

  39. 39.

    Id.

  40. 40.

    Id. In Table HS-30, “unmarried” females are labeled “single” females.

  41. 41.

    Sally F. Goldfarb, Violence Against Women and the Persistence of Privacy, 61 Ohio St. L.J. 1, 19–20 (2000).

  42. 42.

    A study covering nine birth cohorts (1934 to 1982) found that, among ever-married females in the United States, the labor force participation rate increased steadily from the cohort born in the early 1930s to the cohort born in the early 1950s, after which the rate did not rise further. Jin Young Lee, The Plateau in U.S. Women’s Labor Force Participation: A Cohort Analysis, 53 Indus. Rel. 46, 59–60 & fig. 7 (2014).

  43. 43.

    Herma Hill Kay, From the Second Sex to the Joint Venture: An Overview of Women’s Rights and Family Law in the United States During the 20th Century, 88 Cal. L. Rev. 2017, 2021–22 (2000).

  44. 44.

    Campbell Gibson, American Demographic History Chartbook: 1790 to 2010, at fig. 15-3 (2018) (providing age-specific rates of labor force participation among U.S. males of all marital statuses in the civilian noninstitutionalized population in census years from 1870 onward), http://demographicchartbook.com (follow “Chapter 15. Labor Force” hyperlink) (last visited June 16, 2018). For example, the rate of labor force participation was roughly 97 percent in 1900 and 88 percent in 2000 among U.S. men of all marital statuses who were 25–34 years old; roughly 98 percent in 1900 and 89 percent in 2000 among U.S. men of all marital statuses who were 35–44 years old; and roughly 97 percent in 1900 and 86 percent in 2000 among U.S. men of all marital statuses who were 45–54 years old. Id.

  45. 45.

    “The marital bargain [in the United States] traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals.” Perry v. Schwarzennegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010).

  46. 46.

    Stanton v. Stanton, 421 U.S. 7, 13–15 (1975).

  47. 47.

    Lindsay M. Howden & Julie A. Meyer, U.S. Census Bureau, Age and Sex Composition: 2010, 2010 Census Briefs, at 4 (2011).

  48. 48.

    The sex ratio is considered at length in Sect. 2.2.2.2 of Chap. 2 in the second volume.

  49. 49.

    The data used in Fig. 4.4 cover all races and are from Frank Hobbs & Nicole Stoops, U.S. Census Bureau, Demographic Trends in the 20th Century, at A-11 tbl. 5 pt. E (Census 2000 Special Rep., Series CENSR-4) (2002), available at www.census.gov/prod/2002pubs/censr-4.pdf.

  50. 50.

    The sex ratio in the U.S. population at all ages combined, at age 35–44, and at age 45–54 is also consistent with the hypothesis. Before as well as after the 1970s, the sex ratio at these ages was noticeably below 100. See Fig. 2.2 in Chap. 2 of the second volume.

  51. 51.

    Letter from Thomas Jefferson to the Danbury Baptist Ass’n (Jan. 1, 1802) (describing the purpose of the clauses as “building a wall of separation between Church & State”) (on file with the Library of Congress), http://loc.gov/loc/lcib/9806/danpre.html (last visited June 17, 2018).

  52. 52.

    The full text of the First Amendment is as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend I. The Amendment was added to the Constitution in 1791. U.S. Nat’l Archives & Records Admin., supra note 8.

  53. 53.

    Compare Max Radin, The Myth of Magna Carta, 60 Harv. L. Rev. 1060, 1072 (1947) (contending that the Magna Carta and its historical context were the model for the Bill of Rights) with Timothy Sandefur, Lex Terrae 800 Years On: The Magna Carta’s Legacy Today, 9 N.Y.U. J. L. & Liberty 759, 760, 777–80 (2015) (contending that the Declaration of Independence and Constitution were written to (1) express the belief that rights are inherent in the individual and (2) reject the premise of the Magna Carta that rights are granted by a sovereign).

  54. 54.

    Zelman v. Simmons-Harris, 536 U.S. 639, 717, 718–19 (2002) (Breyer, Stevens, & Souter, JJ., dissenting) (citing and quoting U.S. Supreme Court opinions that emphasized the concern of the establishment clause with avoiding social divisiveness and conflict).

  55. 55.

    Agostini v. Felton, 521 U.S. 203, 232 (1997).

  56. 56.

    McCreary County v. Am. Civil Liberties Union, 545 U.S. 844, 860 (2005); Jennifer L. Bryant, Note, Talking “Religious, Superstitious Nonsense” in the Classroom: When Do Teachers’ Disparaging Comments about Religion Run Afoul of the Establishment Clause?, 86 S. Cal. L. Rev. 1343, 1352–57 (2013).

  57. 57.

    Bryant, supra note 56, at 1357–58.

  58. 58.

    Supra note 52.

  59. 59.

    “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1.

  60. 60.

    Everson v. Bd. of Educ., 330 U.S. 1, 7–8, 15–16 (1947). Although Everson was the first case in which the Court ruled that a violation of the establishment clause was within the liberty safeguarded by the due process guarantee of the Fourteenth Amendment, the Court had opined several years earlier that both of the First Amendment religion clauses were encompassed by the liberty assurance of the Fourteenth Amendment due process guarantee. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (ruling on a claimed violation by a state of the First Amendment free speech clause and free exercise clause). See generally Galloway, supra note 9.

  61. 61.

    John C. Jeffries, Jr. & James E. Ryan, The Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 284 (2001).

  62. 62.

    The cases were compiled from Carl H. Esbeck, The Establishment Clause as a Structural Restraint: Validations and Ramifications, 18 J.L. & Pol. 445, 450–51 n.5 (2002); §§ 17.3 to 17.5, 17.6(d), 17.9(a), 17.10 to 17.16 in Nowak & Rotunda, supra note 3, at 1549–1620, 1630–36, 1656–58, 1660–73; and the Westlaw online library of U.S. Supreme Court cases. For information on the search of the Westlaw online library, see supra note 16.

  63. 63.

    Because Fig. 4.5 has the same structure as Fig. 4.1, readers can find an explanation of the structure of Fig. 4.5 in the text that follows supra note 16.

  64. 64.

    Of the 66 cases, less than 8 percent were decided before 1961 and less than 5 percent were decided after 2005.

  65. 65.

    Data for the 1900–1904 birth cohort through the 1975–1979 birth cohort reveal that approval by U.S. adults of religious exercises in public schools declined after the birth cohort of 1935–1939, bottomed in the birth cohorts of the 1950s, and remained lower than in the 1935–1939 birth cohort. Philip Schwadel, Changes in Americans’ Views of Prayer and Reading the Bible in Public Schools: Time Periods, Birth Cohorts, and Religious Traditions, 28 Sociol. Forum 261, 266, 273 fig. 1b, 281 app. A (2013). The foregoing change implies the presence, during and after the 1940s, of society-wide influences that decreased and kept down the acceptability of school-based religious exercises.

  66. 66.

    The rationale involves three Court-developed tests for judging whether government action (e.g., legislation) is acceptable under the establishment clause. The Court has summarized the tests as follows: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (internal citations and quotation marks omitted).

  67. 67.

    These reasons were suggested in an analysis of pre-Everson state court cases on government-religion ties. H. Frank Way, The Death of the Christian Nation: The Judiciary and Church-State Relations, 29 J. Church & St. 509 (1987).

  68. 68.

    Large-scale emigration out of Ireland was prompted by famine in that country from 1846 to 1850. Between 1841 and 1861, the number of persons who moved from Ireland to the United States is estimated to have been 1.5 million. Hubert P. H. Nusteling, How Many Irish Potato Famine Deaths? Toward Coherence of the Evidence, 42 Hist. Methods 57, 57, 68 tbl. 11 (2009).

  69. 69.

    U.S. Dep’t of Homeland Security, 2016 Yearbook of Immigration Statistics 5 tbl. 1 (2017), available at https://www.dhs.gov/immigration-statistics/yearbook (last visited June 17, 2018).

  70. 70.

    Claude S. Fischer & Michael Hout, Century of Difference: How America Changed in the Last One Hundred Years 195 & fig. 8.4 (“Retrospective Reports (as Teenagers)”) (2006).

  71. 71.

    Id.; Jeffries & Ryan, supra note 61, at 307.

  72. 72.

    Edwin Scott Gaustad, Historical Atlas of Religion in America 168 fig. 130 (rev. ed. 1976). Subsequently, the share was even higher: During the period from 1960 to 1970 (the end of the time series), between 60 percent and 65 percent of the U.S. population was affiliated with a religion. Id.

  73. 73.

    Jeffries & Ryan, supra note 61, at 299–300. The federal courts were not the sole forum for judicial engagement in the conflict. State courts, relying on state law, became involved in the conflict even before the federal courts. Way, supra note 67, at 509, 517–18, 521–22.

  74. 74.

    Larry D. Barnett, The Place of Law: The Role and Limits of Law in Society 267, 453 n.223 (2011) [hereinafter The Place of Law].

  75. 75.

    The data are from Statistical Abstract Supplement, supra note 37, at 35 tbl. HS-21.

  76. 76.

    Cutter v. Wilkinson, 544 U.S. 709, 719 (2005) (pointing out that the establishment clause “commands a separation of church and state”). The Court, however, has also said that “total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.” Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

  77. 77.

    The theory is summarized in The Place of Law, supra note 74, at 344, and in the paragraph that accompanies notes 75 to 77 in Chap. 3 of the second volume.

  78. 78.

    See Chao Guo et al., Religious Affiliation, Religious Attendance, and Participation in Social Change Organizations, 42 Nonprofit & Voluntary Sector Q. 34, 42, 51 (2013) (using data from a sample of household heads in the United States and finding that respondents who were members of evangelical Protestant denominations had lower odds of volunteering with organizations promoting social change than respondents who were Catholic, respondents who belonged to mainline Protest denominations, and respondents who were unaffiliated with a religion).

  79. 79.

    Gibson, supra note 44, at fig. 3-4 (see “cumulative percent in size category and larger”).

  80. 80.

    Explaining Law, supra note 4, at 191.

  81. 81.

    Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 848–49 (1992).

  82. 82.

    Michael J. Klarman, Antifidelity, 70 S. Cal. L. Rev. 381, 394–95 (1997).

  83. 83.

    James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 2, 5 (1986); Kent Greenfield, Original Penumbras: Constitutional Interpretation in the First Year of Congress, 26 Conn. L. Rev. 79, 138–44 (1993).

  84. 84.

    Obergefell v. Hodges, 135 S.Ct. 2584, 2598 (2015). The Bill of Rights is defined in supra note 8.

  85. 85.

    Potential economic and sociological effects of change in the age composition of the U.S. population since the 1940s have been proposed by Richard A. Easterlin, What Will 1984 Be Like? Socioeconomic Implications of Recent Twists in Age Structure, 15 Demography 397 (1978).

  86. 86.

    Peter van Aelst & Stefaan Walgrave, Who Is That (Wo)man in the Street? From the Normalisation of Protest to the Normalisation of the Protester, 39 Eur. J. Pol. Res. 461, 465, 476 & tbl. 4 (2001). See Aina Gallego, Unequal Political Participation in Europe, 37 Int’l J. Sociol. 10, 13–14, 17 (2008) (analyzing data from the European Social Survey conducted in 2004 in 24 European nations; and finding that age had a ∩-shaped relationship to the likelihood of active involvement in political parties or social movement organizations, that is, as age increased, the likelihood of such involvement rose, then plateaued, and finally declined). The 2004 European Social Survey drew samples of persons who resided in “private households” in participating nations and who were 15 years old or older. Norwegian Centre for Research Data, European Social Survey, ESS2 – 2004 Documentation Report: The ESS Data Archive 7 (ed. 3.6, 2016), http://www.europeansocialsurvey.org/data/download.html?r=2 (under “Survey Documentation,” select “ESS2 Data Documentation Report ed. 3.6”) (last visited June 17, 2018).

  87. 87.

    See Bill Winders, The Roller Coaster of Class Conflict: Class Segments, Mass Mobilization, and Voter Turnout in the U.S., 1840–1996, 77 Soc. Forces 833, 842 (1999) (explaining how social movements increase rates of voting in elections).

  88. 88.

    Robert M. O’Brien & Patricia A. Gwartney-Gibbs, Relative Cohort Size and Political Alienation: Three Methodological Issues and a Replication Supporting the Easterlin Hypothesis, 54 Am. Sociol. Rev. 476, 479 (1989) (finding that the impact of relative cohort size on political alienation was positive in direction and “moderately large” in magnitude). Professors O’Brien and Gwartney-Gibbs analyzed data from a nationwide sample of White men that had previously been used in a study of responses to two questions measuring views toward government concern with and responsiveness to the wishes of citizens. Joan R. Kahn & William M. Mason, Political Alienation, Cohort Size, and the Easterlin Hypothesis, 52 Am. Sociol. Rev. 155, 156 n.4, 157 & nn.5 & 7, 158, 167 (1987). Although Professors Kahn and Mason concluded that relative cohort size had no effect on alienation, the contrary finding by Professors O’Brien and Gwartney-Gibbs was based on a regression model that was characterized by greater parsimony and hence warrants “special weight.” Fred C. Pampel & H. Elizabeth Peters, The Easterlin Effect, 21 Ann. Rev. Sociol. 163, 189 (1995). The existence of a link between relative cohort size and political alienation receives further support from evidence that, compared to small cohorts, large cohorts have higher levels of social disaffection that raise rates of homicide and of suicide within the cohorts. Robert M. O’Brien & Jean Stockard, A Common Explanation for the Changing Age Distribution of Suicide and Homicide in the United States, 1930 to 2000, 84 Soc. Forces 1539, 1552 (2006).

  89. 89.

    Figure 4.6 was constructed from data in Statistical Abstract Supplement, supra note 37, at 8 tbl. HS-3 (“Estimates (July 1)”). Table HS-3 does not report percentages for subintervals within the ten-year age intervals in Fig. 4.6. The percentages in Fig. 4.6 are for the resident U.S. population except in 1940–1975, when the percentages are for the total U.S. population, that is, residents as well as members of the U.S. military stationed outside the United States. Id.

  90. 90.

    Jeffrey S. Passel, Demography of Immigrant Youth: Past, Present, and Future, 21 Future of Children 19, 23 fig. 2 (2011).

  91. 91.

    Harold H. Punke, The Age Distribution of Immigrants as Related to American Institutions, 16 Soc. Forces 262, 262–63 & tbl. 1 (1937).

  92. 92.

    Graphs showing the age distribution of the U.S. population in each decennial census year from 1900 to 2000 are in Hobbs & Stoops, supra note 49, at 55 fig. 2-3, 56 fig. 2-4.

  93. 93.

    In a publication by the Library of Congress, for example, World War II is described as “the largest international event of the twentieth century and one of the major turning points in U.S. and world history.” Mark F. Hall, U.S. Library of Congress, A Guide to World War II Materials (2017), https://www.loc.gov/rr/program/bib/WW2/WW2bib.html (last visited June 17, 2018).

  94. 94.

    Social consequences of World War II are illustrated by the findings of Aimée R. Dechter & Glen H. Elder, Jr., World War II Mobilization in Men’s Work Lives: Continuity or Disruption for the Middle Class?, 110 Am. J. Sociol. 761, 762, 787–88 (2004); Eliza K. Pavalko & Glen H. Elder, Jr., World War II and Divorce: A Life-Course Perspective, 95 Am. J. Sociol. 1213, 1219, 1222–23 & tbl. 2 (1990).

  95. 95.

    Nat’l Archives Foundation, Japanese Instrument of Surrender (2018), https://www.archivesfoundation.org/documents/japanese-instrument-surrender-1945 (last visited June 17, 2018).

  96. 96.

    U.S. Census Bureau, Statistical Abstract of the United States: 2003, at 9 tbl. 5 (123rd ed. 2003), available at https://www.census.gov/library/publications/2003/compendia/statab/123ed.html (last visited June 17, 2018).

  97. 97.

    Sandra L. Colby & Jennifer M. Ortman, U.S. Census Bureau, The Baby Boom Cohort in the United States: 2012 to 2060, Current Population Rep. 2, 3 fig. 1, 8 fig. 6 (P25-1141) (2014), https://www.census.gov/prod/2014pubs/p25-1141.pdf (last visited June 17, 2018).

  98. 98.

    Text accompanying supra note 65.

  99. 99.

    Supra note 28 and accompanying text.

  100. 100.

    Paul Benjamin Linton, Overruling Roe v. Wade: The Implications for the Law, 32 Issues L. & Med. 341 (2017).

  101. 101.

    Roe v. Wade, 410 U.S. 113 (1973).

  102. 102.

    See supra note 34, the paragraph in the text following note 35, and the text accompanying supra notes 41 to 43.

  103. 103.

    Explaining Law, supra note 4, at 60, 77, 87–93.

  104. 104.

    Camille L. Ryan & Kurt Bauman, U.S. Census Bureau, Educational Attainment in the United States: 2015, at 9 fig. 7 (P20-578) (2016), available at https://www.census.gov/content/dam/Census/library/publications/2016/demo/p20-578.pdf (last visited June 17, 2018). See also: Explaining Law, supra note 4, at 91 fig. 2.2; Fig. 1.1 in supra Chap. 1, and Fig. 3.1 in supra Chap. 3.

  105. 105.

    Women’s Bureau, U.S. Dep’t of Labor, Labor force participation rate of women by age (1948–2016 annual averages), https://www.dol.gov/wb/stats/NEWSTATS/facts/lf_prate_women_age_48_2016_txt.htm (last visited June 17, 2018). The participation rate is not reported for women 25–29 years old, the age group used in the study in supra note 103.

  106. 106.

    In 2014, the U.S. civilian labor force participation rate was 58.4 percent among spouse-present married women who were at least 16 years old. U.S. Bureau of Labor Statistics, Women in the Labor Force: A Databook 19 tbl. 4 (2015) (data for the civilian noninstitutional population). From 1967 through 1972, the period during which 16 states liberalized their law on abortion before Roe was decided, the rate was between 35.6 percent and 41.2 percent. Statistical Abstract Supplement, supra note 37, at 52 tbl. HS-30 (data for spouse-present married women, age 16 and older, who were in the civilian noninstitutional population). Information on the 16 states is in The Place of Law, supra note 74, at 272, 325 n.91.

  107. 107.

    See the text accompanying supra Fig. 4.4.

  108. 108.

    For three of the age groups in Fig. 4.4, sex ratios were lower in 2010 than in 2000 by less than 0.5; for one age group (persons 25–29 years old), the sex ratio was lower in 2010 than in 2000 by 0.7; and for one age group (persons 30–34 years old), the sex ratio was lower in 2010 than in 2000 by 1.0. Hobbs & Stoops, supra note 49, at A-11 tbl. 5 pt. E (sex ratios for 2000); the sex ratios for 2010 were computed from data in Lindsay M. Howden & Julie A. Meyer, U.S. Census Bureau, Age and Sex Composition: 2010, at 4 tbl. 2 (C2010BR-03) (2011), available at https://www.census.gov/library/publications/2011/dec/c2010br-03.html (last visited June 17, 2018).

  109. 109.

    Theorem 13 in supra Chap. 2.

  110. 110.

    Steven E. Barkan, Gender and Abortion Attitudes: Religiosity as a Suppressor Variable, 78 Pub. Opinion Q. 940, 943, 946 tbl. 2, 947, 948 (2014).

  111. 111.

    The percentage for 1970 was computed from Statistical Abstract Supplement, supra note 37, at 8 tbl. HS-3. The percentage for 2015 was obtained from the Current Population Survey using the CPS Table Creator, which is provided on the website of the U.S. Census Bureau at https://www.census.gov/cps/data/cpstablecreator.html (last visited June 17, 2018). The percentages for these years are for the resident population. See the definition of “population coverage” in U.S. Census Bureau, Annual Social and Economic (ASEC) Supplement 9-9 (2015), which is available at https://www.census.gov/programs-surveys/cps/technical-documentation/complete.html (last visited June 17, 2018).

  112. 112.

    Jennifer Strickler & Nicholas L. Danigelis, Changing Frameworks in Attitudes Toward Abortion, 17 Sociol. Forum 187, 199–200 (2002).

  113. 113.

    Such a study is illustrated by an investigation of the impact of changes in the law-permitted grounds for an abortion in the Netherlands. Mark Levels et al., Unintended Pregnancy and Induced Abortion in the Netherlands 1954–2002, 28 Eur. Sociol. Rev. 301 (2012). The data for the study were obtained in 2003 from a nationwide survey of a sample of women in the Netherlands who were born during the period 1940–1984 and who provided retrospective information on their pre-2003 pregnancies, including first and second unplanned pregnancies (if any). Id. at 308, 317. The accuracy of the data depended on, inter alia, the willingness of interviewees to admit that a pregnancy was unplanned.

    Law that allowed an abortion on “mental health” grounds was in force in the Netherlands from the 1950s through 1970; law that allowed an abortion for social and economic reasons, as well as for mental health reasons, was in force from 1971 through 1983; and law that allowed abortion at the request of a pregnant woman was in force starting in 1984. Id. at 305. The likelihood that an unplanned pregnancy would be aborted was higher, at the 0.05 significance level, during the middle period (1971–1983) and during the last period (1984 onward) than during the first period (before 1971), but whether the likelihood was significantly higher during the last period than during the middle period was not ascertained. Id. at 312 tbl. 2.

    In estimating the period-specific comparative likelihoods that an average woman who had an unintended pregnancy aborted the pregnancy, the study employed data on just 112 abortions. Id. at 309, 318. Moreover, the 112 abortions were divided between the three law-defined periods, in each of which the number of abortions is not reported but would have been much lower. (The mean number of abortions per period is 37.3.) Since an interviewee may have had as many as two unplanned pregnancies and interviewees who did may have aborted both of these pregnancies, the number of interviewees who had abortions may be less than the number of abortions. Findings from a limited number of cases tend to be unreliable because they can be altered when a relatively small change occurs in that number.

  114. 114.

    The Place of Law, supra note 74, at 440 n.67 (summary of evidence). Accord, Marshall H. Medoff, State Abortion Policy and Unintended Birth Rates in the United States, 129 Soc. Indicators Res. 589 (2016).

  115. 115.

    Roopan Gill & Wendy V. Norman, Telemedicine and Medical Abortion: Dispelling Safety Myths, with Facts, mHealth, Feb. 1, 2018, at 1; Chloe Murtagh et al., Exploring the Feasibility of Obtaining Mifepristone and Misoprostol from the Internet, 97 Contraception 287 (2018). An increase in the availability of these medications is anticipated in many areas of the world, not just in North America. Marge Berer & Lesley Hoggart, Medical Abortion Pills Have the Potential to Change Everything about Abortion, 97 Contraception 79 (2018).

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    Larry D. Barnett

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Barnett, L.D. (2019). Ages in Constitutional Law. In: Societal Agents in Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-01827-6_4

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