I've been working of late on the administrative law of sterilization: how the law provided a framework for the selection of people to be sterilized and how it dealt with their objections. And also thinking some on courts' deference to legislatures....
One article that interests me in particular is Michigan Law Professor Burke Shartel's "Sterilization of Mental Defectives," which appeared in the Michigan Law Review in 1925. Shartel apparently wrote the Michigan law for sterilization and his article was largely an explanation of the statute and also a discussion of the 1925 Michigan Supreme Court's 1925 decision in Smith v. Command, which upheld the Michigan sterilization statute only over the vigorous dissent of three justices.
Shartel was writing a couple of years even before Buck v. Bell -- and like many other writers in the 1920s, saw a cost-benefit analysis as one essential part of sustaining a forced sterilization statute. He minimized the problem -- for instance, at one point he wrote that though there are 20,000 "feeble-minded" persons in the state, "[t]his would not be too many to sterilize, considering the population as a whole...." Then -- following the lead of the Michigan Supreme Court -- Shartel suggested that the issue involved calculating society's need. "If the social need be great enough the state can deprive of liberty (as it does do with the insane, the criminal, the man who objects to vaccination and so on) or it may take life (as it does as a penalty for crime or by drafting into the military service and exposing to death, etc.)." That was a cost-benefit analysis that admitted of little room for humanity.
Perhaps this should not surprise anyone, but Shartel (and others at the time) approached the act with great deference:
Simple doubt of the wisdom or policy of a statute is not decisive against its constitutionality. The sterilization statute is "expressive of a state policy apparently based on the growing belief that, due to the alarming increase in the number of degenerates, criminals, feeble-minded, and insane, our race is facing the greatest peril of all time. ... Unless for the soundest constitutional reasons, it is our duty to sustain the policy which the state has adopted." (quoting Smith)
This was an era of deference to legislatures on issues of individual rights and of the subordination of individual rights to the claims of the state. Even before Smith, Aubrey Strode, the lawyer for the state in Buck v. Bell published a short examination and defense of the Virginia statute, "Sterilization for Defectives," in the Virginia Law Review in 1924.
When the Virginia Law Review discussed the Virgina Supreme Court's 1925 decision in Buck v. Bell, it suggested that great deference was due the legislature: "Every possible presumption is in favor of the validity of an act until overcome beyond rational doubt." That was the nature of constitutional law at the time, even though some -- like Harvard Law Professor Thomas Reed Powell -- understood that "calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls." Later in that same work, Powell questioned the utilitarian calculus so many employed: "Calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls." There were other voices calling for reason, too. Clarence Ruddy's article in the Notre Dame Lawyer in 1927 was probably the strongest case in a law review in the 1920s against sterilization. A year earlier, Jacob Broches Aronoff wrote in the St. Johns Law Review about the reasons for public opposition to eugenics legislation. For instance, it "looks like a heartless method on the part of the tax-paying classes of getting rid of a duty of caring for the helpless and unfortunate of the poorer strata of society...."
Ruddy's article appeared just after Buck v. Bell was decided; one of the pernicious aspects of that case, I think, was its legitimation of sterilization. For in the few years after it, law reviews frequently pointed to it to sustain their arguments. For instance, William Renwick Riddell reviewing Sterilization for Human Betterment in the ABA Journal in 1930 invoked Bell and then added that "the appalling prevalence of imbecility and the consequent drain upon the resources of the people have imprelled many to consider sterilization of the imbecile as called for ...." Riddell concluded "other jurisdictions may well profit by the example of California." Similarly, University of Illinois Sociology Professor Donald R. Taft's review of Sterilization for Human Betterment in the Illinois Law Review concluded that "Sterilization will eliminate many socially dangerous homes. If, as is quite probable, a race somewhat sounder eugenically also results, we can all rejoice."