Unprotected Natural Rights

From the June 15, 1927, Issue

The first decision ever issued by the Supreme Court of the United States on the constitutionality of legal sterilization of human beings was handed down May 2, 1927 (Buck vs. Bell) with only Justice Butler dissenting. Both the terms of the law and the history of the person attacking it were favorable to an affirmative decision. The Virginia statute is much narrower in scope than many similar enactments. It applies only to persons afflicted with hereditary recurrent insanity, imbecility, feeblemindedness or epilepsy who, if sterilized, could be paroled or discharged and thus become self-supporting. The procedure specified in the law is ample for the protection of all the inmates' rights except that involved in the operation itself. It requires a hearing before the board of directors of the hospital or colony, with the inmate or his guardian in attendance; that the evidence be reduced to writing; that an appeal be allowed to the circuit court of the county, which may admit new evidence; finally, there may be an appeal to the Supreme Court of the state. Carrie Buck is the feebleminded daughter of a feebleminded mother and is herself the mother of an illegitimate feebleminded child.

On behalf of Carrie Buck, R. G. Shelton, who had been appointed her guardian, appealed to the Supreme Court of the United States from the decision of the Supreme Court of Appeals of the State of Virginia. Justice Holmes, who wrote the decision affirming the judgment of the Virginia Court, points out that Carrie Buck had obtained the full benefit of "due process of law," so far as procedure was concerned. Undoubtedly, this judgment is correct. Through her, guardian, the plaintiff attacked the statute on the ground that it deprived her of the "equal protection of the laws," inasmuch as it applies only to those insane, feebleminded, etc., who are confined in state institutions. To this plea Justice Holmes replied: "The law does all that is needed when it does all that it can, indicates a policy, applies to all within the lines and seeks to bring within the lines all similarly situated so far and so fast as its means allow."

Counsel for Carrie Buck before the Supreme Court challenged the law on the further ground that it violates that clause of the Fourteenth Amendment which forbids a state to deprive any person of life or liberty without due process of law. "It violates her bodily integrity," he declared, "and is a deprivation of her life and liberty…. The inherent right of the individual to go through life without mutilation of the organs of generation needs no constitutional declaration. That right existed long before the Constitution was framed and was not lost or surrendered to legislative control when the government was created, and is beyond the reach of the police power."

In its decision the Court does not even refer to the claim that the right to life which is protected by the Constitution includes the right to "bodily integrity," nor to the claim that the latter right,  existing anterior to the Constitution, is beyond the reach of the state's police power. Apparently there is no constitutional ground upon which either of these claims could be plausibly upheld. At any rate, counsel failed to cite any supporting decisions of the Supreme Court. To destroy the power of generation is not a deprivation of life, but sterilization does involve some deprivation of liberty.  Is it deprivation "without due process of law"? Counsel seemed unable to cite any decision answering this question in the affirmative, and the Court refused to give the "due process" clause that construction in the present case.

How far may the police power go in restraining individual liberty without violating "due process of law"? Perhaps the most comprehensive answer is that expressed in the famous canon enunciated by John Marshall: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

The end of the Virginia sterilization statute evidently is in conformity with this canon and with the definition of the police power, for it is the prevention of injury to the community from the procreation and existence of mental incompetents. Is the means, namely, sterilization, "appropriate and plainly adapted to that end"? Evidently, it is. Does the means "consist with the letter and spirit of the Constitution"? Here is the question which touches precisely the individual liberty or individual rights which are guaranteed by the "due process" clause. The answer of the Court is in the affirmative. The state is not forbidden by the Constitution to restrict the liberty of its citizens in the way which the sterilization statute prescribes. The Court points out that "the public welfare may call upon the best citizens for their lives," and refers to the  principle enunciated in the case of Jacobson vs. Massachusetts,  197 U.S. 11.

One might, however, raise the objection that sterilization is not the only means available to the state for securing the end which is sought, namely, restricting the number of imbeciles, feebleminded, etc. Segregation of such persons in institutions and colonies would be equally effective. Inasmuch as Carrie Buck was already in such an institution, the end of the law was attained in her case and in that of others similarly confined.  Moreover, it might be argued that segregation is a lesser, or at any rate, a less fundamental, interference with liberty than sterilization. The first of these objection was specifically answered by, the Court in Jacobson vs. Massachusetts when it declared that: "It is no part of the function of a court or jury to determine which of two modes was likely to be the most effective for the protection of the public." Among appropriate means to a legitimate end, therefore, the state may choose the one that seems preferable. In the case that we are considering, it chose sterilization because sterilization is less expensive. If it be still contended that the interference with the liberty and physical integrity of the person is so much greater' in sterilization than in segregation that the state was bound in harmony with the spirit of the Constitution to choose the latter, the obvious answer is that this contention is incapable of demonstration. Even if the Court had considered it, the Court would have been obliged to reject it according to the well-known rule that, in case of doubt, the presumption is in favor of the statute, not in favor of the Constitution.

Still another objection may he raised to the appropriateness of the means provided in the Virginia statute. The Court emphasized the good effects of the law in preventing "those who are manifestly unfit from continuing their kind," but it made no reference to the very serious evil effects. When Carrie Buck is discharged from the State Colony for Epileptics and Feebleminded, she will be incapable of bearing any more feebleminded children or any other kind of children, indeed, but she will also unquestionably he an easier prey for dissolute men. Moreover, she will become a more active carrier of loathsome disease. Whether these evil consequences of the sterilization statute combined with its deeper assault upon liberty would have been sufficient, if properly presented, to induce the Court to declare that the means provided in the law were not really adapted to securing the end and were not in conformity with the spirit of the Constitution, is a question which has considerable speculative interest. But it has no practical value. No such argument was made by the plaintiff. Therefore, no cognizance was taken of it by the Court.
It is unfortunate that Justice Butler did not write out and publish the reasons for his dissent. On its face the case seems to present no constitutional ground for invalidating the statute except possibly that described in the last paragraph. Even this ground was not formally brought within the Court's consideration.

To be sure, previous decisions could have construed the word "life" or the word "liberty" as including "the right to bodily integrity," mentioned by counsel for Carrie Buck. Had they done so the present case must have been decided differently. It is likewise conceivable that the facts and considerations set forth above might some day he presented to the Court so effectively as to bring about a different decision.

One comment on the decision deplored it as illustrating the tendency of federal courts to "set  aside the deeper consideration of humanity and public policy in favor of conceptions that are purely legalistic.” This is irrelevant. The Supreme Court is not permitted to determine the constitutionality of statutes on the basis of either humanity or public policy. Its only guide is the letter and the spirit of the Constitution. If these do not beyond reasonable doubt conflict with the statute which has been questioned, the statute must he sustained. No such contradiction appeared in the Virginia sterilization case. Therefore, the actual decision of the Court was inevitable.

Occasionally one finds Catholics who assume that the Constitution protects all natural rights against encroachment by Congress or by the states. This is a complete misconception. What the Constitution protects is certain forms of liberty, certain immunities from arbitrary interference, certain property rights. It does not pretend to safeguard all natural rights, much less to prohibit statutory infringements of the moral law. In general, Catholics are too prone to trust to the Supreme Court for protection of their rights and interests, instead of actively defending these in legislative bodies before the obnoxious proposals have been enacted into laws. If the decision in the Virginia sterilization case shall have the effect of dissipating this excessive trust in the Court and arousing Catholics to the necessity of actively opposing such dangerous measures as sterilization before they have taken the form of statutes, it will prove to that extent a blessing.

Are sterilization laws and proposals a dangerous phenomenon in the United States? Undoubtedly they are. Such legislation has been enacted in no less than twenty-three states. In six of these the laws have never been put into effect. In two others the laws have been applied only once. The total number of operations performed in virtue of this legislation in all the states is 6,244. Nor do these facts tell the whole story. There seems to be a well-organized group of men and women who actively seek the extension of such laws to other states. Moreover, many of the laws now in existence go much further than the one recently sustained by the Supreme Court.

In a brochure, published by the American Eugenics Society, entitled Eugenical Sterilization,  Mr. Harry H. Laughlin has kindly provided us with the draft of a "model eugenical sterilization law." He would have the law applied to all "socially inadequate persons." Omitting most of the nine lines of jargon which Mr. Laughlin takes to define a "socially inadequate person," I noted that this unfortunate being is one who "fails chronically in comparison with normal persons to maintain himself or herself as a useful member of the organized social life of the state."  Apparently this definition would take in not only persons who are physically and mentally subnormal but those who are economically incompetent. Should it be enacted and enforced, it might take a place among the "standard" methods for the prevention of poverty! "Irresponsible" parents who persisted in having ''more children than they could properly support" might be given the option of practicing birth control or being sterilized!

[For more from our 1920s archive, click here]

About the Author

John A. Ryan, a professor of moral theology in the Catholic University of America, is the author of A Living Wage and Social Reconstruction.

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