Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell

17 Buck, at Nuremberg and After

2 3 6 The many motives for government sterilization policies—ranging from concern for a deteriorating standard of national heredity to growing health and welfare expenditures to higher crime rates to ethnic or racial bigotry— would be dramatized as World War II came to an end. After the Allied victory in Europe was assured, President Harry S. Truman took the unprecedentedstepofappointingsittingU .S.SupremeCourtJusticeRobertJackson to manage the prosecution of atrocities committed by the Nazis. Jackson became known as the architect of the Nuremberg Trials for his administration of the war crimes tribunals. The Nuremberg prosecutors would unwittingly provide a forum to highlight parallels between Nazi sterilizations and the policies endorsed in the Buck case. The first trials involved more than twenty of the most notorious Nazi officials. They included Wilhelm Frick, Hitler’s minister of the interior, whom Harry Laughlin had praised so lavishly for his application of eugenic principles through German law. Joining Frick in the dock were Hermann Göring, chief of the Luftwaffe (air force); Rudolf Hess, Hitler’s deputy and leader of the Nazi Party; and Julius Streicher, publisher of virulently antiSemitic newspapers and magazines. Streicher’s numerous publications, issued in a calculated effort to fan public hatred for Jews, were critical in setting the stage for the Holocaust. Streicher made one of the first references to sterilization at Nuremberg, but his comments had nothing to do with government programs. He spoke out in his own defense, arguing that his anger at Jews was a result of reading Theodore Kaufman’s book Germany Must Perish, which advocated sterilization of all Germans.¹ Other accounts in the early war trials came from concentration camp victims who witnessed experimental sterilization and forced abortions.² Sterilization emerged in more detail during the later trials of the Nazi doctors.³ When the war ended, Leo Alexander was named medical consultant Buck, at Nuremberg and After 17 Buck, at Nuremberg and After | 2 3 7 for the Allied prosecutors at Nuremberg, and he made the most important contribution to understanding the scope of concentration camp sterilization . As a young doctor in Germany, Alexander did research on hereditary mental illness, collecting data on families much as eugenic field workers had.⁴ Following several months of study in China just before Hitler came to power, the Jewish researcher Alexander could not return to Germany; his work in eugenics was abandoned when he emigrated to America. Alexander met Abraham Myerson and became an important member of the American Neurological Association committee that Myerson chaired. Alexander was a coauthor of the committee’s 1936 book criticizing sterilization policies.⁵ He was well prepared to investigate the scope of sterilization abuse in Germany. But because Jackson and the prosecution team limited the criminal charges against the Nazi doctors to illegal acts taken in furtherance of the war effort, the trials largely ignored the hundreds of thousands of involuntary sterilizations carried out on German citizens under German law.⁶ At one level the unwillingness to address German domestic sterilization was consistent with the policy not to prosecute Nazis for matters that had occurred in Germany before the war. According to the prevailing legal opinion, such matters did not fall under the jurisdiction of an international tribunal. At another level, while the domestic sterilization program in Germany was significantly more expansive than U.S. state programs, it was promoted by very similar motives and fueled by similar propaganda. In both countries the cost of supporting hereditarily diseased asylum inmates was seen as a public social burden. Justice Robert Jackson believed that sterilizing the hereditarily defective could be appropriate social policy as long as it was based on science rather than mere bigotry. He had said as much in his Skinner opinion. Jackson was not alone in trying to disentangle eugenics from prejudice. Early in 1936 Yale University political scientist Karl Loewenstein published a critique of the excesses of the Nazi regime in the Yale Law Journal. Loewenstein had been trained as a lawyer in Germany and was intimately aware of legal developments during Hitler’s ascendancy. He believed German legislation during the Nazi period owed its origins to the “race myth” of Aryan supremacy that had made the Jews “a new class of untouchables” within Europe. At the same time, other legislation traceable to the “race myth” was focused on eliminating the physically unfit and providing for “healthy progeny in the future.” Apart from its unscientific...