As I was reading General Holder's letter to the Fifrth Circuit earlier today, I was struck by a parallel to some of the debate regarding sterilization legislation. Holder remarked that "Acts of Congress are 'presumptively constitutional,' Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Court stressed that the presumption of constitutionality accorded to Acts of Congress is 'strong.'” This is reminds me of an argument made -- repeatedly -- by advocates of sterilization that there should be deference (sometimes on the factual question of whether sterilization is a good way of limiting the burden on the public and at other times whether sterilization is a reasonable exercise of the police power). Consider, for instance, the Virginia Law Review's discussion of the Virgina Supreme Court's 1925 decision in Buck v. Bell. It suggested (at 421) 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, writing a few years later, also in the Virginia Law Review -- understood that "calm as may be the judicial recitals of these issues of personal liberty, the conflicts are ones that stir men's souls."
Moreover, Michigan Law Professor Burke Shartel's "Sterilization of Mental Defectives," which appeared in the Michigan Law Review in 1925, focused on the Michigan's legislature's finding of "facts" regarding the effects of sterilization. Shartel's article was, in essence, a defense of the 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 argued (at 21) that "the court ought to require the facts on the basis of which the constitutionality of a law is assailed to be established by the assailant 'beyond a reasonable doubt.'" Shartel was asking for deference on issues of "fact," whereas the Virginia Law Review note had a broader sense of deference, I think -- deference regarding the scope of the police power (or at least on the "reasonableness" of sterilization, which I take it was central to deciding whether that was sterilization was a valid exercise of the police power). Therein was a huge problem, given the deference that many courts showed to what was "known" about the desirability of sterilization and the costs and benefits of eugenics. I'll have a lot more to say about the sterilization mindset shortly.
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