Precedents

June 1, 1942

Eugenics Challenged in Skinner v. Oklahoma

Posted Jun 1, 2009 6:40 PM CST
By George Hodak

Photo courtesy of Wisconsin Historical Society

In Justice Oliver Wendell Holmes’ most inglorious written opinion, the U.S. Supreme Court in 1927 upheld a Virginia law that authorized the involuntary sterilization of those in state custody deemed “hereditary imbeciles.”

Over the next 15 years, a politically powerful American eugenics movement blossomed and, armed with the court’s acquiescence, pressed more than half the states to pass forced-sterilization laws that grew increasingly broad in scope.

In 1936, inmate Jack T. Skinner, convicted of two armed robberies and a chicken theft, challenged Oklahoma’s Habitual Criminal Sterilization Act. Promoted by the state’s populist governor, the act required sterilization of “habitual criminals,” defined as anyone convicted of three crimes of “moral turpitude.”

Invoking due process and equal protection, a unanimous court declared the law unconstitutional. And although forced sterilization continued into the 1960s, the specter of Nazi atrocities and the lack of a clear court sanction eroded public support for the American eugenics movement and the laws it helped create.

Comments

1.

fed up
May 28, 2009 12:28 AM CST

Justice Holmes wrote:

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”

Justice Holmes is correct, if awkwardly stated and politically incorrect.  A better way may be to require a “conception license”, and not limit just ordinary imbeciles, but wall street imbeciles too.  But it doesn’t matter, because China’s ‘one child’ policy has already trumped our society, and we are in the shake-out period, which will continue for some time.

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2.

Piers Hale
Jun 5, 2009 11:33 AM CST

This is a nice article on Skinner v Oklahoma, but needs a little clarification.  The Skinner case, while important, was not the landmark in anti-eugenic policy that the author suggests.  Indeed, as the author acknowledges, eugenic legislation continued for decades - actually well into the 1970s.  In the 1927 Buck v Bell case, in which Wendell Holmes made his famous statement, the court had already ruled that sterilisation, for eugenic purposes, was not in contravention of either the 8th ammendement in terms of cruel and unusual punishment, nor the 14th, for due process.  Indeed, Holmes ruled that cutting the fallopian tubes was no different in substance legally than forced vaccination, and referred to Jacobson v Massachusetts as precedent.  Further, Skinner had already failed to have his mandated sterilisation overturned on both of these issues in lower courts. Rather, because the Oklahoma law had an exeption clause that meant that those guilty of white collar crime, such as embezzelment, were not to be sterilised, where those who committed armed robbery of stole chickens were, then when the case came to appeal in 1942 it was fought on the equal protection arm of the 14th, and not due process.  Thus although the Oklahoma law was found unconstitutional, the court did not address the constitutionality or otherwise of forced sterilisation.  Indeed, if they were to have done so, it is likely that they would have upheld the legality of the procedure.
Eugenic sterilisation did fall off significantly from 1942, but this has more to do with the discoveries made by Allied soldiers of concentration camps as they advanced across Europe (The Press breaking this story on the very day that Justice Stone ruled in Skinner.) Such findings made any attempt at eugenics a hard sell thereafter.
As Victorian Nourse has argued in her book _In Reckless Hands_, Skinner is much more important for its initiation of the concept of “strict scrutiny”, used in Skinner v Oklahoma for the first time, and which has subsequently become a central element in constitutional law.

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