Elizabeth Troutman and I have a paper up at ssrn on the North Carolina eugenics movement. This was inspired by the North Carolina legislature's compensation program, but what we're really interested in (more than the contemporary movement for compensation) is to understand the movement in North Carolina. How did the movement for sterilization arise, how was North Carolina largely a dependent variable in that national movement, and then how did it function in our state. Getting at the last issue involves difficult questions, like who was selected for sterilization and how did the administrative state process petitions for sterilization. To me one of the most haunting aspects of all of this is that the state supplied pre-printed forms to be used in preparing petitions for approval by the state Eugenics Board. That is, the state was ready to assist -- indeed to push -- for sterilization.
But one of the most interesting aspects of this is that almost everyone who was approved for sterilization had either themselves "consented" or had family members who "consented." And that raises a very important question of what "consent" looked like -- and just how the state coerced individuals and their family members to "consent." This is hard to reconstruct now, because the individual records are sealed -- and even if they were open, it looks unlikely that they would show the level of coercion in much detail. Many of the Eugenics Board's biennial reports reflect the concern over getting people to agree to sterilization. They note in particular that men were particularly resistant -- and in fact over time, the percentage of men sterilized decreased dramatically. Perhaps that reflects the increasing resistance of men; it may also reflect that over time the percentage of institutionalized people who were sterilized decreased, and men in the community were harder to coerce than women. At any rate, the state was deeply interested in coercing individuals into accepting sterilization.
Right now, though, I want to talk about a separate part of our paper -- which turns to the law review literature on sterilization in the 1920s and 1930s. There are certainly some robust defenses of sterilization in the law review literature. Aubrey Strode, the state's lawyer in Buck v. Bell, used the Virginia Law Review to argue in favor of the state's power to sterilize even before the Buck case. And Burke Shartel, a law professor at the University of Michigan, published a defense of sterilization in the Michigan Law Review. (And I should note that the North Carolina Law Review also published a defense, though not as strenuous as the two previous ones, of sterilization by Harvard law professor Thomas R. Powell.) So there's plenty of blame to go around.
However, others took to the pages of law reviews to attack sterilization. One of my favorites is a student work by a woman, Ernestine Tinsley, in the Southern California Law Review. It is almost a satire -- it starts off with a quote from Nietzsche. And Tinsley asks why the state would stop with sterilization. If a key argument of sterilization is that it saves the state money, who not execute "unfit" people: "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." Tinsley, who was writing this as a review of J.H. Landman's Human Sterilization, uses that question to suggest that sterilization is wrong. She is one of the heroes of the movement against sterilization -- people who took to the pages of law reviews to ask that judges, legislators, and state officials slow down, maybe even stop entirely in the sterilization of our fellow citizens. The road was long, but they were ultimately successful in this quest.
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