I have always been interested in history. Therefore, it is unsurprising that I have engaged in scholarly research on the history of my fields: testing, gifted education, and intelligence research (e.g., Warne, 2012, 2019, 2020; Warne et al., 2019, 2020). I have also blogged about the history in these areas in several posts.
One area of this history that garners a great deal of attention is the early 20th century eugenics movement. Many figures in the early history of my discipline were eugenicists. This is an ugly history that no one in my field tries to hide. Indeed, I feel it is a responsibility of scholars and practitioners to have an accurate knowledge of this history. This is one of the reasons that I explore it unapologetically in my new book, In the Know: Debunking 35 Myths About Human Intelligence.
It is impossible to understand the actions of eugenic scientists without understanding the wider eugenics movement internationally and in their home nations. To understand the American eugenics movement better, I recently read In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of American Eugenics by Victoria F. Nourse (2008). I expected a dry scholarly treatment of the weakening of early 20th century eugenics — and instead found an engaging page-turner that I couldn’t put down.
A Highly Readable Book
Skinner v. Oklahoma (1942) was a U.S. Supreme Court case that ruled unanimously that Oklahoma’s law permitting the compulsory sterilization of “habitual offenders” in prisons was unconstitutional. This ruling came just 15 years after the infamous Buck v. Bell (1927), in which the court 8-1 ruled the exact opposite in regards to a woman who was supposedly “feeble-minded” (to use the terminology of the time).
There is a story behind every court case, but Skinner‘s tale is particularly colorful. Its cast of characters includes a downhome populist governor, a chicken thief, a self-taught lawyer, a state legislator who was also a eugenicist physician, a quietly subversive prison warden, a bank robber, and more. The twists and turns include three jail breaks; over ten years of legislative, administrative, and legal delays; two prison fundraisers; and fruitless appeals to the ACLU, Eleanor Roosevelt, and the public. The high-stakes, dramatic story would make a good film or miniseries. Everyone loves an underdog, and reading about the ultimate triumph of the prisoners’ case is satisfying.
Like a good novelist, Nourse vividly describes each character in the story and resists simple caricatures. She refuses to paint eugenicists as evil, and instead (as any good historian does) helps her reader understand why advocates for eugenics acted the way they did. The result is a human portrait of even the most reprehensible people in this story. After all, the most interesting villains — in fiction and in real life — are those who are motivated by their good intentions.
To have a strong change of opinion in such a short time is unusual in Supreme Court jurisprudence. In Reckless Hands (Nourse, 2008) is an exploration of how the court threaded the needle of ruling compulsory sterilization of prisoners unconstitutional without actually overturning Bell v. Buck. (Indeed Bell has never been fully overturned, even today.)
Nourse also avoids the common trap of presentism that many have fallen into when writing about the early 20th century eugenics movement. I define presentism as an ethnocentric viewpoint that imposes modern values, knowledge, or ethics onto the past (Warne, 2019). Nourse understands that — both historically and legally — imposing a 21st century perspective based in rights and modern social concerns upon Skinner does not make sense.
The decision in Skinner was foundational in establishing the idea of inalienable human rights in American jurisprudence, but the case was not decided on this basis. Instead, it was decided as an equal protection case because the Oklahoma law created arbitrary distinctions between nonhabitual and habitual offenders (the latter having three or more felony convictions) and the exception that banned sterilization for those convicted of liquor and tax offenses, embezzlement, and political crimes. Nourse is excellent at explaining the how a legal argument that no lawyer would make today could persuade all nine Supreme Court justices (including Chief Justice Harlan F. Stone, who had ruled in favor of sterilization 15 years earlier in Bell v. Buck) to strike down the law.
Nourse also explores how the context had changed since Bell. Already in the 1920s, the scientific consensus about eugenics was faltering (Kevles, 1995), and the 1930s brought political changes that made a ruling against forced sterilization possible. Domestically, Nourse discusses the political pressure on the Supreme Court to be more responsive to the public’s day-to-day needs. She also explores how a souring mood towards German belligerence and policies also influenced the court’s willingness to limit American sterilizations. German sterilization laws were based on American laws (Kevles, 1995), though were far more expansive than anything seen in the U.S. (From 1933 to 1939, Germany sterilized over five times more people than the U.S. did in the entire 20th century; see Warne, 2020, Chapter 32). In the late 1930s and early 1940s, Americans increasingly were turning against German ideas of societal improvement via biology, and Nourse shows how this skepticism of eugenic ideas influenced the court.
The only place I can see where Nourse’s analysis falls short is in her epilogue where she applies the lessons of Skinner to modern biotechnology. Unfortunately for a lawyer, Nourse makes a few logical errors in her analysis. For example, she commits the classic error of conflating “is” and “ought” statements:
There is no claim of nature that cannot be transformed, in the public sphere, into a claim of political and social reality, for nature itself has two meanings: one which describes that which is, and the other which describes that which should be.Nourse (2008, p. 163)
It would be difficult to craft a more clear-cut example of the logical fallacy of conflating a statement of fact (i.e., describing how the world “is”) with a statement of values (i.e., describing how the world “ought” to be). David Hume is turning in his grave.
Another example of poor reasoning is Nourse’s claim that because candidate gene studies and earlier attempts had failed to explain social behaviors in terms of genes that all such efforts were also destined to fail. As a non-biologist in 2008, she could not have foreseen the impending breakthrough of genome-wide association studies that would indeed uncover alleles correlated with educational and economic success, and psychological disorders (e.g., Domingue et al., 2015; Hill et al., 2019; Lee et al., 2018; Lo et al., 2017). But Nourse treats any attempt to identify genes that influence complex behaviors as naïve and simplistic.
Even at the time of her writing, kinship studies showed incontrovertibly that almost every human is genetically influenced (Turkheimer, 2000), and this includes aggression and criminality (e.g., Rhee & Waldman, 2007). Nourse dismisses any hint of this evidence, saying that heritability statistics “cannot prove inheritance” and “routinely trade on public misunderstanding” (Nourse, 2008, p. 163). The first statement is simply untrue. The second, even if it were true, is irrelevant; public misunderstanding of a technical term does not mean that scientific findings related to it are wrong.
I suspect that Nourse’s casual dismissal of modern behavior genetics stems from her resources on the topic. In multiple places in the book, she holds the notoriously ideologically motivated Stephen Jay Gould up as an scientific authority, and she cites several times his inaccurate polemic The Mismeasure of Man. Nourse seems blissfully unaware of how the book was savaged by informed reviewers in the scientific press (e.g., Jensen, 1982; Carroll, 1995). She cites almost no behavioral geneticists; a search for the name “Plomin” in her book produces no results.
Still, the analysis of modern biology and how it relates to Skinner is a small part of the book. It doesn’t detract from the main contribution, and Nourse’s expertise as a historian and legal analysis are a major strength of the book.
Skinner v. Oklahoma does not get as much attention outside of the legal community as it deserves. This is the only book I could find on the decision, whereas Bell v. Buck has several books dedicated to it. But Skinner is the more important case for 21st century Americans. It marked the beginning of the end for compulsory sterilization in the United States (though the final legal sterilizations would occur in 1979). Moreover, it introduced the concept of strict scrutiny to American legal theory and is the beginning of human rights theory in constitutional law. It would be hard to write a better history of Skinner — or a more readable one — than In Reckless Hands.
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