Gauging Attitudes from Law Reviews: The Case of Sterilization

I'm now getting a chance to get back to working on the growing movement for compensation for victims of North Carolina's state-ordered sterilization.  (I've previously written a couple of posts on designing a compensation plan and a couple of other posts discussing North Carolina's practices.)  I've been thinking a lot about the varying levels of coercion that were involved here.  Some of the cases were among the most egregious state-sponsored intrusions on personal autonomy anywhere in the United States in the twentieth century; in other cases (perhaps not many, but at least some) those who were sterilized actively sought out the sterilization.

One thing that is important to making a case here is that there were a lot of people at the time -- like as far back in the 1930s -- who argued that involuntary sterilizations were improper.  That is, people at the time realized that this was wrong.  This is not a case of us reading back our early twenty-first century sense of what's right onto decisions made by legislators in the 1930s when North Carolina passed a sterilization act that passed constitutional muster.  (Recall that the first North Carolina sterilization act was struck down in 1933 by the North Carolina Supreme Court because it had a shocking lack of due process.)

So that leads me to two issues.  First, who were those who argued against sterilization?  Well, some of them were professors and law students writing in law reviews.  If there were debate today, one might look to blogs to gauge the ideas of law students and faculty -- maybe.  (There's some work that needs to be done on legal academic blogging -- we had a lot of that about half a dozen years ago; it may be time to revisit that.)  But back in the 1930s?  Looking at law reviews is a good way to get a rough gauge of the legal profession's attitudes towards sterilization.  For instance, J. H. Landman's 1932 book Human Sterilization was reviewed in a number of journals.  Landman was somewhat skeptical of sterilization, but often the reviews went beyond him and were quite critical of sterilization.  To take a few examples, George Roche's review in the California Law Review (22 Cal. L. Rev. 129 (1933) was quite critical of Landman for failing to engage more fully the deep moral qualms about sterilization.  For instance, Roche wrote that we get the impression that, while consciously rejecting the more extreme and doctrinaire point of view, the author does not always recognize the Devil in disguise."  Reviews in the University of Pennsylvania Law Review (81 U. Pa. L. Rev. 653 (1932-1933)) and the Boston University Law Review (12 B.U. L. Rev 749 (1932)) said -- in essence -- let's slow this down.  And a few years before, the Yale Law Journal had a somewhat more mild approach -- still a "could we please look at the evidence first"  approach -- in a review of a 1930 book, E.S. Gosney's and Paul Popenoe's Sterilization for Human Betterment (39 Yale L.J. 592 (1929-1930)).  The Harvard Law Review's even shorter review of Sterilization for Human Betterment concluded with an observation that the imminence of eugenic legislation was disturbing  (43 Harv. L. Rev. 162 (1929-1930)).  Not wild criticisms by any means, but certainly concern about what was coming.

Then again, the review in the Southern California Law Review,  (6 S. Cal. L. Rev. 349), in 1933 began with an epigraph from Nietzsche!

I teach you the Superman! Man is something that shall be surpassed. What have ye done to surpass him? All beings that have come into the world heretofore have created some- thing beyond themselves. Are ye going to be the ebb of the tide? Are ye going back to the animal Or ahead to the superman?

Behold, I teach you the superman!

Also sprach Zarathustra, I. Nietzsche.

With such a beginning, one might have expected support for eugenics; in fact, the review criticized Landsman for not considering a stronger argument for sterilization:

Dr. Landman proposes that segregation rather than sterilization might more properly solve the problem of what is to be done with the socially inadequate people.  But he does not at all discuss what must be a foremost question in any consideration which presumes that our present arbitrary standards are the ones upon which to build the normal man, and which on the basis of that standard designates certain individuals as mental deficients.  I refer to the question of outright extermination of the "unfit."  One of the leading reasons assigned for the necessity of human sterilization of the incompetent is state economy.  It is urged that caring for these cacogenic persons--whether in hospitals, insane asylums, prisons or institutions for the feeble-minded--costs the State vast sums of money.  Besides there is the damage done by defective abroad in society.  If individuals are so imperfect that society feels it necessary to prevent them from perpetuating themselves in the race lest they burden future generations with the care of their offspring, why not just exterminate them now and rid the State once and for all of the burden?  Surely a survey which purports to outline the field of inquiry into the problem of human sterilization and its ramifications is incomplete unless it considers this possibility.

I take it the author of the review, Ernestine Tinsley, understood the absurdity of this proposal and that she was using it to undermine the idea of eugenics.

On the flip side, some law reviews robustly advocated sterilization.  A serious endorsement came from a student note in the Kentucky Law Journal in 1934 (23 Ky L.J. 169 (1934)) and another longer one UKy anthroplogy professor W.D. Funkhouser came later in that volume, 23 Ky L.J. 511 (1935).  Professor Funkhouser -- after whom a building on the University of Kentucky campus is named (time for pictures!) was really serious about his support for sterilization.  Listen to this conclusion:

In those states where consistent and regular use of the measure has been followed, since it was first legally adopted in 1899, the results are startling even after one generation.  No new patients are appearing to fill the slowly decreasing ranks in the asylums and hospitals except those who come from other states.  This decrease will of course be greater with each succeeding generation.  In fact it is claimed that if sterilization laws could be enforced in the whole United States, less than four generations would eliminate nine-tenths of the feeble-mindedness, insanity and crime of the country.

(A brief review of Landsman in the Idaho Law Journal (3 Idaho L.J. 91 (1933) was to the same effect.)

Now, I recognize that sterilization was very popular; we can gauge the public's attitudes by looking at the sterilization legislation that swept the country in the 1920s and 1930s (which was conveniently summarized at 22 Georgetown L.J. 616, 617 (1933-1934)).   The enthusiasm for sterilization in the general public is captured in the opening paragraph of LeRoy Maeder's review of Landman in the Penn Law Review:

The voluminous literature on human sterilization which has appeared in recent years has been for the most part definitely biased in favor of this procedure and has served to influence a considerable group of people to believe that in general employment of this method as a compulsory eugenic measure will bring about a substantial reduction in the number of socially inadequate, especially the feebelminded.  The enthusiasts have succeeded so well in their propaganda that even sober-minded persons have urged the adoption of broad human sterilization legislation as a means of coping with the mentally disorded and deficient, and of reducing the burden of state appropriations to public institutions supporting them.

Anyway, I am planning on talking a little more later in the year about gauging attitudes from legal scholarship -- which is, of course, core history of the book material.  Next up will be gauging attitudes in the 1940s, when they turned dramatically against sterilization, and then North Carolina's adminsitrative law regarding sterilization.   And I'm going to be spending some time talking about the eugenics literature, like Popenoe and Johnson's Applied Eugenics.  Never ceases to surprise me how law can coldly deal with issues fundamental to humanity.

The illustration is the NC highway marker in Raleigh that commemorates the North Carolina Sterilization Commission's actions.

Comments

[David Bernstein]

Al, why are you starting in the 1930s, and not the 1920 when eugenics started in earnest (see Buck v. Bell!) I quote a few prominent law professors in my book as being very supportive of the outcome.

[Alfred Brophy]

Really good question, David. In the larger work I will talk about the 1920s (and the 1940s), too. But my primary purpose now is to put the North Carolina statute into context, so I wanted to see what people were thinking at the time NC repassed sterilization.