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Waging War on the 'Unfit'? From Plessy v. Ferguson to New Deal Labor Law

47 Pages Posted: 10 Sep 2010 Last revised: 10 Aug 2011

Harry G. Hutchison

Centre for the Study of Law & Public Policy at Oxford; Regent University - School of Law

Date Written: September 8, 2010


Racism and group hatred have existed in most cultures throughout history but it took millennia for these hostilities to migrate into the safe harbor of scientific thought, thus rationalizing destructive actions against the despised. Since power, whether held by individuals, social groups, or institutions tends naturally toward manipulation and control, it would be unfair to claim that public intellectuals and institutions operating during the Progressive Era invented contempt as a weapon against the unwanted, such as Carrie Buck. But it would be accurate to claim that they perfected the ideology of societal advancement, which is often tainted by the human tendency to use power, unimpeded by moral restraint, for purposes of self-aggrandizing domination and abuse. The publication of Paul Lombardo’s book, Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell offers an opportunity to reexamine the enduring effects of progressive policies that were reinforced by the capitulation of modern hierarchs to pseudo-science as a vehicle to achieve human improvement. Neither the story of Carrie Buck nor the facts surrounding the sterilization imposed on her are disputed. What is far more interesting and important, is how this story is told, its moral meaning, its political and legal consequences and finally its implications for understanding both the past and future of a nation that is presumably committed to self-evident truths. It is possible that her story is part of a larger narrative that reflects an intentional, carefully considered movement that is constitutive of the pursuit of a master race, by elites espousing Nietzsche’s will to power.

A careful examination of the events that led to Carrie Buck’s sterilization shows that the intellectual currents that placed her at risk are consistent with the cultural milieu that gave rise to a determined regulatory effort to prevent marginalized groups and individuals from exercising their liberty. From the time period since the rise of Jim Crow, followed by its validation by the Supreme Court in Plessy to the instantiation of the New Deal extending to contemporary times, members of categories labeled as “unfit,” have struggled to obtain social legitimacy and equality. With the rise in the size and scope of government, the odds of escaping exploitive policies tied to genetic purification or subtler forms of exclusion have declined ever since Justice Holmes offered his dissent in Lochner. The ramifications of this development guarantee that marginalized Americans will continue to face increasing risk from the unconstrained exercise of government power that compromises their liberty interest. Hence, in praising the good that can come from government discretion, society should never forget the evils that the state has wrought and continues to countenance as part of its pursuit of hegemony in virtually all aspects of human life.

Keywords: African American workers, biology, commerce clause, Darwinism, discrimination, due process, economic inequality, epileptic, feeble-minded, Fourteenth Amendment, gender, Gregor Mendel, heredity, hygiene, interbreeding, interracial marriage, police power, race, reproduction, sex, undesirable, Virginia

JEL Classification: I18, I38, J18, J71, J78, K32

Suggested Citation

Hutchison, Harry G., Waging War on the 'Unfit'? From Plessy v. Ferguson to New Deal Labor Law (September 8, 2010). Stanford Journal of Civil Rights and Civil Liberties, Vol. VII, No. 1, April 2011; George Mason Law & Economics Research Paper No. 10-44. Available at SSRN:

Harry G. Hutchison (Contact Author)

Centre for the Study of Law & Public Policy at Oxford

Belsyre Court, 57 Woodstock Road
Oxford 0X2 6HJ
United Kingdom

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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