The Sterilization Mindset

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." 

On a related note, I saw Judge S.F. Hobbs' address in the Alabama Law Journal in 1929, "A Law Which is not in the Law Books, Yet Fills Them," which is supports eugenics.

Comments

[Daniel S. Goldberg]

So much to think about here, Al. The issue of administrative deference to the legislature's wishes is important. But one fascinating think to consider in terms of administrative law is the sense in which the administrative agency, whether the local health department or the state or county eugenics board, is itself a microcosm of all three branches.

Structurally, of course, the agencies promulgate rules, execute them, and adjudicate the legitimacy of their own rules and decisions/acts made and executed pursuant to them. I know, for example, from Paul Lombardo's fabulous book on Buck v. Bell that the administrative process that resulted in Carrie Buck's involuntary sterilization was rigged from the start (and that's understating it, in truth), so much so that the actual extra-agency judicial proceedings appear like rank legal malpractice by the time Paul is done with his excavation.

I guess the point here -- if there is one -- is that the issue of administrative deference could fruitfully be pursued not just WRT to Chevron-style (pardon the anachronism) deference to the legislature, but to the internal workings of the eugenics agencies/boards themselves. Reminds me, I guess, that when it comes to public health, all action is in a very important sense local.

Other idea that came to mind in reading the post is the ways in which larger social and political ideas about eugenics, race, science, and the body politic matter here, especially going back to the 1920s. I'm currently making my way through Beth Linker's magnificent book War's Waste, and she emphasizes how much the very beginnings of rehabilitation medicine after WWI were erected on the firm beliefs regarding the need to get disabled veterans productive, both through work and through marriage.

She also emphasizes the highly gendered nature of these quintessential Progressive beliefs, of the way in which disabled men who could not work or raise families were deemed as feminine, with the resultant loss of manhood flowing to the nation as well. I think the impulse to shore up national masculinity, to reduce the burden of those unable to work or be productive, in the scientific, Progressive sense, might be helpful here.

Last question I would have is how much analysis of these early law reviews on involuntary sterilization tell us about the N.C. program, which, if I'm not mistaken, began at least 15 years later.

Whew! I'll get off my soapbox for now. So much here . . .

[Alfred Brophy]

Thanks for all those comments, Daniel -- I think the immediate history of sterilization in Michigan, California, and Virginia -- and elsewhere -- helps us understand the phenomenon of which North Carolina was a part. Shartel's article was published, what, eight years before North Carolina re-passed its sterilization legislation. I think that -- and also the even more zealous works from the earlier 1920s, often supported by the Human Betterment League -- help create a vivid picture of the ideas in circulation in popular settings, as well as legal ones.

[Eric Muller]

Al, my AMERICAN INQUISITION looks at how the multi-headed bureaucracy for adjudicating loyalty and disloyalty functioned in WWII. In a basic way it's all about how bureaucracies of repression function. I would discourage you from conceptualizing this too much as being about anything like classical administrative law (Chevron, etc.), or even about how the judiciary reviews agency action. It's enough of a challenge just to figure out how agencies actually operate without factoring the extent to which their functioning derives from concerns about judicial review.

I would also think that the ENORMOUS literature on the bureaucratic engine(s) of repression in the Third Reich would be essential, given that both systems (as Daniel Goldberg notes) were grounded in roughly the same "science."

[David Bernstein]

"She also emphasizes the highly gendered nature of these quintessential Progressive beliefs, of the way in which disabled men who could not work or raise families were deemed as feminine, with the resultant loss of manhood flowing to the nation as well."

I haven't read this book, but I have read a fair amount of literature, court cases, commentary, etc. on eugenics and haven't come across anything that I noticed considered the disabled to be feminine. I did find many references, however, to various workers who could not, in Progressive reformers' opinion, command a "family wage" being considered defective or unfit. Such workers were to be kept out of the labor market, but it wasn't clear exactly what those who didn't have a male breadwinner to provide a family wage for them were supposed to do. Eliminating "defective" workers like the disabled through eugenics before they could either drag down wages or live off society (after being forcibly unemployed) was not an illogical next step from the family wageists' perspective. (Indeed, even today, note how enthusiastic some are about limiting population growth in poor countries because the poor allegedly deplete resources, drive international wages down, and so forth).

[Daniel S. Goldberg]

David,

Here are some other sources suggesting the gendered dimension to some aspects of American eugenics (which I think is intimately connected to ideas of work and the labor market you note):

Wendy Kline, "Building a Better Race: Gender, Sexuality, and Eugenics from the Turn of the Century to the Baby Boom" (UC Press, 2005)

Molly Ladd-Taylor, "Eugenics, Sterilisation and Modern Marriage in the USA: The Strange Career of Paul Popenoe,' Gender & History 13, no. 2 (2001): 298-327.

And Linker's book is absolutely filled with evidence, although her focus is less on eugenics and more on the Progressive rise of rehabilitation following WWI. Here are two other articles making a similar point:

Mark Humphries, “War's Long Shadow: Masculinity, Medicine, and the Gendered Politics of Trauma, 1914–1939,” Canadian Historical Review 91, no. 3 (2010): 503-531.

Michael J. Lansing, “‘Salvaging the Man Power of America’: Conservation, Manhood, and Disabled Veterans during World War I,” Environmental History 14, no. 1 (2009): 32-57.

I suppose one could contend that this idea of gendering is peculiar to Progressive social responses to the disabled veterans of WWI, and that it had nothing to do with eugenics. But given the close connections between the same kinds of people, the same social movements, and the scientific and medical instrumentalities they sought to use, I doubt the ideas can be partitioned off this way.

Of course, I don't think this idea, even if accurate, should be taken as some kind of giant overarching meta-narrative that explains everything. If accurate, it's just part of the story, though I suspect some might argue that given the inevitable focus in eugenics on reproduction, it's a really important part.

Still, perhaps a card-carrying historian of eugenics would disagree.

[David Bernstein]

Thanks!