by Adam Cohen
The Immigration Act of 1924 had its intended effect. Under the new regime that it established, the demographics of American immigration changed dramatically. Southern and eastern Europeans, who had been about two-thirds of immigrants in 1920–21, fell to about 10 percent, and the percentage of immigrants from northern and western Europe soared. Jewish immigration fell from 190,000 in 1920 to 43,000 in 1921, and just 7,000 in 1926.
For European Jews, the timing could hardly have been worse. In just a few years, Nazism would begin its rise, and with violence and genocide sweeping across the continent, millions of Jews would be searching for a safe haven. The “biological” immigration policies that Harry Laughlin championed blocked almost all of them from entering the United States, even ones who were in imminent danger. Among the many victims of Nazism who would be turned away was the Frank family of the Netherlands. In 1941, Otto Frank wrote desperate letters to a U.S. government official, which became public many decades later, pleading without success to secure American visas for his wife, Edith, and his daughters, Margot Frank and Anne Frank.
Five
Harry Laughlin
After his triumph in helping persuade the nation to adopt a biological approach to immigration, Harry Laughlin shifted his attention to his other main prescription for improving America’s genetic stock: eugenic sterilization. In Laughlin’s view, restricting immigration from nations with high rates of hereditary defects reduced the foreign threat to the gene pool, but it did nothing about the equally serious domestic threat posed by defective Americans reproducing more of their own kind.
Laughlin had been promoting sterilization for more than a decade. In 1914, in his address to the First National Conference on Race Betterment in Battle Creek, he laid out his ambitious goal of sterilizing fifteen million people to save the nation from its “lowest one-tenth.” That same year, with the report he drafted for the American Breeders’ Association, Laughlin helped give the sterilization movement the imprimatur of a respected organization, whose members included some of the nation’s leading biological scientists.
After that early start Laughlin had been pulled in many directions. He went to Princeton to obtain his master’s degree and doctorate, and he worked on his study of institutionalized populations for the Census Bureau. In 1921, while he was working on immigration policy, Laughlin also helped to organize the Second International Eugenics Congress at the American Museum of Natural History in New York. Laughlin was in charge of exhibitions. The exhibits at the congress addressed a wide range of eugenic subjects, from “the relation between natural hereditary qualities and national greatness” to the “differences between white and Negro fetuses.”
Through it all, Laughlin maintained his interest in eugenic sterilization and, in his indefatigable way, continued studying the subject. When he finished his research, he had an epic 502-page treatise. Laughlin’s study of eugenic sterilization was the most comprehensive analysis ever done of the subject. It contained analyses of the history and texts of state sterilization laws and discussions of bills that had been vetoed. It included descriptions of particular methods of sterilization—seven for men and ten for women. It had family histories of individuals who were the subjects of eugenic sterilization, with capsule descriptions such as “Alice Smith, epileptic and feebleminded, New Jersey” and “Peter Fellen, moral pervert, Washington.” And Laughlin had drafted a highly detailed model eugenic sterilization statute.
The only thing the sprawling treatise did not have was a publisher. It was by now well known that Laughlin was an outspoken advocate for eugenic sterilization, and there was little doubt that his new study would be a brief for the expanded use of sterilization. This presented a problem. Although there was little in the way of organized opposition to eugenic sterilization, people in influential positions were quietly expressing their unease about it. Laughlin observed this firsthand on the American Institute of Criminal Law and Criminology’s sterilization committee, on which he served. The committee initially supported sterilization, but before long it became divided on the subject, and it stopped issuing reports.
When Laughlin tried to enlist an organization to fund publication of his book, he found that many potential funders did not want to be publicly associated with advocating mass sterilization. The Carnegie Institution would not underwrite it. The Bureau of Social Hygiene, the nonprofit organization created by John D. Rockefeller Jr., also turned him down. The bureau conceded the information could be valuable, but it was unwilling to support Laughlin’s “direct propaganda favoring sterilization legislation.”
Laughlin eventually turned to the Municipal Court of Chicago, which was a national leader in developing innovative approaches to social problems. Harry Olson, the court’s chief justice, believed strongly that criminality had a hereditary basis, and that it required eugenic solutions. A year earlier, the court’s Psychopathic Laboratory had appointed Laughlin a eugenics associate. Now the same organization agreed to publish Laughlin’s book. In 1922, Eugenical Sterilization in the United States was released by the Chicago Municipal Court, with an introduction by Chief Justice Olson.
As the prospective funders anticipated, Eugenical Sterilization in the United States made no pretense of being a neutral analysis. The chief justice set the tone, declaring in his introduction that America needed “to protect herself against indiscriminate immigration, criminal degenerates, and race suicide.” He insisted the crisis was an urgent one. If “racial degeneracy” continued, Chief Justice Olson warned, it would only be “a question of time when popular self-government will be impossible, and will be succeeded by chaos, and finally a dictatorship.”
In the book itself, Laughlin expanded on the themes he struck in the American Breeders’ Association Report of the Committee to Study and to Report on the Best Practical Means of Cutting Off the Defective Germ-Plasm in the American Population. Now that he was speaking for himself rather than writing for a committee, Laughlin took on a more emphatic tone and called for a sweeping eugenic sterilization program. Eugenical Sterilization in the United States sounded more like his Battle Creek address than his Breeders’ Association report.
Laughlin made clear in his new treatise that he was interested in eugenic sterilization on a mass scale. He did not believe—as the model statute in the Breeders’ Association report had provided—that sterilization should be limited to inmates of “state institutions for the socially inadequate,” a small subset of the population. Writing now on his own, Laughlin argued that sterilization should be used on people who because of “degenerate or defective hereditary qualities” were the “potential parents of socially inadequate offspring” whether they were “in the population at large or inmates of custodial institutions.”
Laughlin also proposed a more expansive list of “socially inadequate classes” who should be candidates for sterilization than he had included in the Breeders’ Association report. The model law in Eugenical Sterilization in the United States called for sterilizing the feebleminded, insane (including the psychopathic), criminalistic (including the delinquent), epileptic, inebriate (including both alcoholics and drug users), diseased (including the tubercular, syphilitic, and leprous), blind (including those with serious vision impairment), deaf (including those with serious hearing impairment), deformed (including the crippled), and dependent (including orphans and paupers). The Breeders’ Association model law had omitted a number of these categories, including the “crippled,” “blind,” “deaf,” and “tubercular.” When the decision was up to Laughlin alone, he wanted to make many more Americans subject to sterilization.
There was one item on Laughlin’s list of “degenerate or defective hereditary qualities” that had a striking, if hidden, significance. Laughlin recommended that eugenic sterilization laws apply to people who were “epileptic.” What made his inclusion of epileptics of particular note is that Laughlin himself was epileptic, though it is unclear whether he knew at the time that he had
this particular “degenerate or defective hereditary quality.” He had his first reported seizure in 1923, the year after the book was published, at the age of forty-three.
When Laughlin’s first seizure struck, he was on a trip to Europe and suffering from a severe tooth infection. In his later years, while driving in Cold Spring Harbor, he would have a seizure that caused a near-fatal accident; after that his wife would not let him drive. Laughlin could have changed his belief that epileptics should be sterilized, but he did not. There is no record of his ever questioning the idea that he and others like him were defective and unworthy of reproducing. Laughlin and Pansy did not have children, but it is not known whether they intentionally avoided reproducing for eugenic reasons.
When Laughlin’s book was released at the start of 1922, the eugenic sterilization movement was losing force. The legal tide had begun to turn in 1913, and from then to 1921 courts in seven states had struck down sterilization laws, mainly on due process or equal protection grounds. The year before Eugenical Sterilization in the United States came out, Indiana—the state where eugenic sterilization had gotten its start in 1907—had seen its own law struck down by the Indiana Supreme Court. Eugenicists were worried that even if they prevailed in state legislatures, they would lose the battle in the courtroom.
In his book, Laughlin put great emphasis on defending eugenic sterilization from legal challenges. He did two things to try to hold back the legal onslaught. First, he attempted to make the case for why the recent court decisions had been wrong—and why eugenic sterilization legislation should be upheld. Laughlin argued that sterilization laws represented the “prevention of social menace,” which was “an essential purpose of law.” When states sterilized people with hereditary defects, it was not any different from requiring residents to get vaccinations, quarantining the sick, or imprisoning criminals, he insisted. All were examples of the law acting “to prevent . . . conduct inimical to the welfare of the community.”
To bolster this argument, Laughlin included expert opinions endorsing eugenic sterilization laws. Justice Olson provided Laughlin with a written opinion stating that properly drawn eugenic sterilization laws would be “held constitutional by the courts.” The California attorney general, the Connecticut attorney general, and a prominent New York lawyer submitted detailed analyses of why eugenic sterilization laws should be upheld. In an unconvincing gesture toward balance, Laughlin included a one-paragraph summary of a speech given by a New York lawyer contending that sterilization laws were unconstitutional, and referred readers interested in more detail to an article in a criminology journal.
The second thing Laughlin did to fight the wave of court rulings was to write a model eugenic sterilization law designed to survive judicial scrutiny. The courts that were striking these laws down on due process grounds were objecting to the lack of procedural protections for people at risk of being sterilized. To insulate against such claims, the model statute called for states to designate a “State Eugenicist” whose office would conduct careful investigations of whether particular individuals should be sterilized. The model law also contained the sort of trial procedures the courts were looking for, including ensuring that people who might be sterilized were given formal hearings, advance notice of the hearings, the right to a jury trial, and the right to appeal.
Laughlin also had suggestions for protecting eugenic sterilization laws against equal protection challenges. Courts had been striking sterilization laws down on equal protection grounds when they applied only to inmates of state institutions and not to members of the general population. Laughlin strongly advised the states to make all of their residents eligible for eugenic sterilization “regardless of whether” they were members of “the population at large or inmates of custodial institutions.”
Eugenical Sterilization in the United States was hailed as “epoch-making” and praised for its enormous influence. Laughlin’s treatise spread the eugenic sterilization message to legislators, opinion makers, and grassroots activists nationwide. It also helped its author to further cement his position as one of America’s most prominent eugenicists and its leading expert on sterilization. In February 1923, Laughlin was invited to join the Galton Society, which was one of the nation’s most elite eugenics organizations. Its charter members included Laughlin’s good friend Madison Grant, his boss Charles Davenport, and his old Princeton professor Edwin Conklin. With the invitation, Laughlin was being ushered into the intellectual leadership of American eugenics.
As his reputation rose, Laughlin’s interests were becoming more international. In 1923 the Department of Labor named him a “Special Immigration Agent to Europe,” courtesy of a labor secretary who shared his biological views of immigration. In the second half of 1923, he and Pansy traveled extensively throughout Europe, including visits to Germany, Sweden, Denmark, and Belgium, to observe his favorite racial groups in their native habitats. In a letter from Sweden to Harry Olson, Laughlin extolled the ability of the hardy Nordic people to survive in the unforgiving climate of northern Europe. “The strenuous struggle for existence seems to have eliminated the weaklings,” Laughlin said. As a result, as “a breeding ground for racial stocks for exportation” to other parts of the world, “Sweden is exceedingly successful.”
In January 1924 Laughlin went to London to deliver a lecture titled “Eugenics in America” at Burlington House. In his remarks, which were reprinted in the Eugenics Review, a publication of the Galton Institute in England, Laughlin told his audience the story of eugenics’ rapid rise in the United States, including the founding of the Eugenics Record Office. His larger, flattering message to his British audience was that his goal in his eugenics work was to make America more like England.
The United States and the “white British colonies”—Canada, Australia, New Zealand, and South Africa—were, he warned, being threatened by immigrants from the “races of Southern Europe and Eastern Europe and the Oriental races” who were “crowding on the borders.” If America and the white British colonies acted wisely and admitted “only emigrants who are of assimilable races and of good family-stocks,” he said, they had a chance to reproduce in their countries “a civilization of the type which has developed in Britain.”
For all of Laughlin’s research, writing, and lecturing, his work to get eugenic policies adopted remained his greatest focus. During this era Laughlin was, as one observer put it, “a zealot for passing laws.” He provided extensive assistance to eugenics supporters across the country as they organized and lobbied in favor of sterilization laws.
Laughlin’s cause was meeting with considerable success in state legislatures. Washington, which had adopted a sterilization law in 1909 that applied only to certain criminals, enacted a law in 1921 aimed at preventing “the procreation of feeble-minded, insane, epileptic . . . moral degenerates” and other groups. Other states followed in rapid succession: Oregon, Montana, Delaware, and Michigan in 1923, and Virginia in March 1924. Laughlin took pride in his role in this new wave of legislation. He would soon boast in an annual report that these laws were in important ways “based upon the researches of the Eugenics Record Office.”
As well as things were going in state legislatures, the eugenicists still had reason to worry about the courts. There had been a deluge of rulings since 1913 striking down sterilization laws in New Jersey, Iowa, Michigan, New York, Nevada, Indiana, and Oregon, where a predecessor to the 1923 law had been held to be unconstitutional. For the eugenicists, losses in the courts were more dangerous than legislative defeats. A political fight, if lost, could be resumed immediately. With the stroke of a pen, however, a judge could deliver a setback to eugenics that would last for years.
Some eugenicists dreamed of a way out: a United States Supreme Court decision upholding eugenic sterilization. If the justices ruled that sterilization laws did not violate the Fourteenth Amendment equal protection or due process clauses, all of the nation’s lower courts would have to f
ollow its lead, leaving them few legal bases on which to rule against sterilization. The eugenicists believed they had reason for cautious optimism: the newest laws had been written after publication of Laughlin’s treatise, and with knowledge of the objections courts were raising. These laws, they hoped, would be better able to survive constitutional challenge. It was at just this moment, with eugenic sterilization at a legal crossroads, that a letter arrived for Laughlin from Lynchburg, Virginia.
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On September 30, 1924, Aubrey Strode wrote to Laughlin to invite him to be an expert witness in a case testing the constitutionality of Virginia’s new eugenic sterilization law. Strode said he and his colleagues believed Laughlin could play an important role. Both in drafting the Virginia law and in preparing for trial, Strode said, they had found Eugenical Sterilization in the United States “very helpful.”
In his letter, Strode, who identified himself as the lawyer for the State Hospital Board, explained the case and where Laughlin would fit in. It would begin in about six weeks, most likely in the circuit court in Amherst County, Virginia. Whichever way the court ruled, an appeal would be taken to the Virginia Supreme Court of Appeals, and then to the United States Supreme Court. His client was “unwilling to proceed under the Act,” Strode said, “until it shall be sustained by the highest court.”
The law’s defenders were looking for an expert who could help them “in making up a proper record for the test case.” They wanted to put on testimony from “some authority who has made a study of the hereditary considerations involved in such cases,” Strode said. They were seeking expert testimony to support two critical arguments: that the “patient is the probable potential parent of defective offspring” and that “considerations both of public welfare and of the welfare of the individual patient counsel the performance of the operation.”