In Reckless Hands

Reviewed by Timothy Sandefur

By Victoria F. Nourse
W.W. Norton & Company, 256 pages,
$24.95, hardcover

Victoria Nourse's brief but important book is not only about a disturbing historical episode in America, it also provides a sophisticated examination of a basic shift in American law. Eugenics was a leading item on the agenda of early-twentieth-century intellectuals, and one of their biggest successes. It was also part of the broader Progressive effort to remodel the Constitution's supposedly obsolete structure. As Nourse shows through meticulous research and detailed argument, the U.S. Supreme Court began to reexamine the wisdom of that effort in Skinner v. Oklahoma (316 U.S. 535 (1942)). As such, her book deserves a place beside other recent books that reconsider the Progressive revolution, including Richard A. Epstein's How the Progressives Rewrote the Constitution (Cato Institute, 2006) and Amity Shlaes's The Forgotten Man: A New History of the Great Depression (HarperCollins, 2007).

At the core of the Progressive movement was the belief that rights--including property and privacy rights--were only permissions created by government for its own purposes. Thus the Progressives argued that to achieve its goals the state could deprive people of rights. A leading Progressive, Woodrow Wilson, said, "Men are as clay in the hands of the consummate leader."

Closely allied to this "modernizing" effort was the movement for a "value free" jurisprudence that sought to separate law from morality. No part of this effort was more disturbing than the law regarding eugenics. Nevertheless, Justice Oliver Wendell Holmes--who boasted "all my life I have sneered at the natural rights of man"--was more enthusiastic about it than about any other Progressive reform. He wrote the opinion in Buck v. Bell (274 U.S. 200 (1927)), which allowed government to sterilize women without their consent in an effort to eradicate "undesirables." Buck is what passed for cutting-edge legal theory a century ago: Law was an instrument whereby the will of the people was imposed on the minority, and to describe that will as immoral, wrong, or subject to higher laws was considered silly superstition.

Holmes was lucky to die before Hitler's atrocities came to light, but many of his admirers lived through World War II and witnessed the horrors a country could commit when it abandoned its belief in inalienable rights. That debacle led to a vital (if still incomplete) reassessment of the direction of American law. Responsible intellectuals could no longer "sneer at the natural rights of man," and in the postwar decades they began to search for "neutral," or objective, legal principles, and a revival of natural law.

Skinner was the first post-New Deal case to speak of fundamental rights to be protected against the will of the majority. In that case the Court struck down Oklahoma's "habitual criminal" statute that allowed the state to sentence repeat offenders. Reacting to the moral conflicts underlying World War II, the Court, at least in part, recognized the emptiness of "value freedom." People could no longer be regarded as clay in the hands of leaders; lines had to be drawn to prevent the law from being perverted into the mere instrument of sovereign will. In those prewar years, not only were schools barred from forcing children to pledge allegiance to the nation, but courts also were forced to regard racial discrimination by the state with special scrutiny. It is fitting that Justice Robert Jackson, who wrote in his Skinner concurrence that "there are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority," would later prosecute Nazis at Nuremberg.

Skinner, and the war that raged while it was being decided, helped reawaken American lawyers to the Constitution's legacy of protecting individuals against the state.

Timothy Sandefur is a senior staff attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006).

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