Sterilization, Indefinite Detention, Concentration Camps—The Future of Dissent in America?

It’s morning in America again and many of us take for granted that in a country purportedly governed by the rule of law, our civil liberties are constitutionally guaranteed and not up for grabs as they are in totalitarian countries. A dangerous and false assumption. Buried deep in U.S. legal history are two Supreme Court cases and one law passed by Congress and signed by President Obama, all of which have never been overturned or withdrawn, whose content, like unexploded IEDs, can be set off and vaporize a broad range of those “inalienable” rights.

Involuntary sterilization and all that it implies in the arena of personal privacy has a long and shameful history in American life and law. The brainchild of Frances Galton (Darwin’s cousin) in 1883, the pseudo-science of “selective breeding” or eugenics taught that society could be improved if people considered physically, socially or mentally weak were not allowed to pass their “defects” on to the next generation. Ergo: mandatory sterilization laws. Eugenics caught on in America. It took only thirteen years until 1896 for the first eugenics law to be passed in the U.S. in Connecticut prohibiting the marriage of “imbeciles” and the feeble-minded. From prohibiting marriage by certain groups to involuntary sterilization laws took little more than a decade. In 1907, Indiana was the first state to pass a sterilization law, followed quickly by Connecticut in 1909 and over the next decade by 31 other states. Ultimately 60,000 Americans were forcibly sterilized, thousands were barred from marrying, and thousands more were forcibly segregated in “colonies.” These measures were only the preliminary maneuvers in what was to be an all-out war against those who did not fit the “perfect” racial stereotype —blonde, blue-eyed Nordic types. In 1911, the Carnegie Institute, when it wasn’t building libraries for the “common folk,” was plotting how to get rid of them. In a 1911 Carnegie-funded report laying out 18 solutions to erase “defective” family lines, point eight was euthanasia (killing those deemed “unfit”), although, as the report pointed out, the public was probably not quite ready for such a radical solution. Best to stick with forced sterilization, segregation and marriage prohibitions.

How did this bestiality become inscribed in the nation’s laws? In 1927 in a landmark decision, Buck v. Bell, the Supreme Court had its say. Refusing to overturn a Virginia statute that allowed forcible sterilization of a “probable potential parent of socially inadequate offspring” whose first victim was to be Carrie Buck, an unmarried mother, Justice Oliver Wendell Holmes, acclaimed as the wise and compassionate hero of America’s highest court, transformed race and class bigotry into government policy: “it is better for all the world, if instead of waiting to execute degenerate offspring…to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough.” Eighteen years later, in 1945, Nazis being tried at Nuremberg quoted Holmes’ decision in their defense.

In 1942 in Skinner v. Oklahoma, the Supreme Court did an about-face. However, the opinion was narrowly targeted to overturn an Oklahoma forced sterilization law because in the Court’s opinion it violated the 14^th amendment’s equal protection guarantee, singling out certain crimes as calling for sterilization of their perpetrators. Skinner did not overturn Buck v. Bell, nor has any subsequent legislation. As late as 1973, in Roe v. Wade, the abortion rights decision, Justice Blackmun, writing on behalf of the majority, declared that the constitutional right to abortion was not unlimited based on the premise that the right to personal privacy itself was not unlimited. To support this view, he used Buck v. Bell as a precedent. “The privacy right involved [in the abortion decision] cannot be said to be absolute…The Court has refused to recognize an unlimited right of this kind in the past…( Buck v. Bell, 274 U.S. 200 (1927) ( sterilization).”

Recently, the ugliness of the U.S. eugenic past has re-surfaced. A Tennessee judge offered inmates convicted on drug charges a reduced sentence in exchange for agreeing to be sterilized. “I hope to encourage them [prisoners] to take personal responsibility and give them a chance, when they do get out, to not be burdened with children,” The Tennessee ACLU (American Civil Liberties Union) didn’t see it that way: “Offering a so-called ‘choice’ between jail time and coerced contraception or sterilization is unconstitutional.” Public outcry forced the judge to back down several months later but 32 women and 38 men had already agreed to this Faustian bargain. That’s far from the only recent example. Between 2006-2010, at least 148 women were permanently sterilized at two prisons in California without their consent. In 2015, a woman with a history of mental illness was offered a reduced sentence if she agreed to be sterilized. Public disclosure forced the prosecutor to be fired before the woman was sterilized. How many others have not been so fortunate is anybody’s guess.

Buck v. Bell has never been overturned. It is still part of the canon of American law.

Throughout the checkered history of the government’s uneasy relationship with civil liberties, forced sterilization is far from the most vicious assault on personal privacy. In 1944, President Roosevelt issued an executive order forcibly removing 120,000 Japanese Americans from their homes and relocating them into colonies all over the U.S. The order was upheld by the Supreme Court in Korematsu v. United States. Taking a big bite out of constitutional guarantees in the fourth, fifth, eighth, and fourteenth amendments “that all men are created equal, that they are endowed by their Creator with certain inalienable rights…life, liberty and the pursuit of happiness,” six of eight justices (three of whom are still considered liberal icons) gave thumbs up to what became domestic concentration camps.

The likelihood of another President in another era making the same horrible decision has been debated a number of times since 1944. As Justice Robert Jackson, one of only two justices who dissented, pointed out shortly after the Korematsu decision “the principle [of indefinite detention of groups of Americans] lies about like a loaded weapon…Every repetition imbeds that principle more deeply in our law…and expands it to new purposes.” In 2015, Fred Korematsu’s daughter pointed to one of the “new purposes” of Korematsu: “…the Obama administration is locking up central American mothers and children… in the name of national security. The late Justice Anton Scalia pulled no punches when it came to Korematsu’s staying power — “you are kidding yourself if you think that the same thing will not happen again.”

Korematsu v. United States has never been overturned. It is still part of the canon of American law.

The last of the triumvirate of methods to keep the population “controlled” is indefinite detention— incarceration without due process. Lincoln was the first president to issue an order legalizing indefinite detention in 1861. Over a century and a half later, Congress passed and President Obama signed the 2012 National Defense Authorization Act (NDAA) which included two sections 1021 and 1022 giving the president (Obama at the time but transferrable to all future presidents)) the authority to arrest without warrant and hold indefinitely U.S. citizens and non-citizens alike suspected of terrorist activities or of consorting with terrorists. Section 1021 had its day in court but a New York appeals court ruled that those challenging the act lacked “legal standing” to challenge the indefinite detention powers of the NDAA.

Section 1021 is still the law of the land. The current president (Trump) or his successors could order the indefinite detention of individuals they deem enemy combatants including but not limited to protestors exercising their first amendment rights, journalists and whistleblowers.

Sterilization, indefinite detention, penal colonies coming to a state or city near you — Unlikely? Yes. Impossible? No. Laws made and never unmade in a country too busy chasing phantom threats to “our democracy” to take notice of the real dangers hidden in plain sight. It Can’t Happen Here. (1935 novel by Sinclair Lewis) You “wanna” bet?