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Cracks in the Ceiling



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The Origins Of Hate
September 2003 Bar Talk Interview
The American Lawyer
09-02-2003

Edwin Black, award-winning author of The New York Times best-seller IBM and the Holocaust, has just published War Against the Weak (Four Walls Eight Windows), a history of the American eugenics movements and its ties to the Nazi regime. In the early twentieth century, writes Black, advocates of eugenics in America tried to create a white master Nordic race and, in the process, end the procreation of southern Italians, brown-haired Irish, Jews, blacks, Mexicans, and Indians, as well as the disabled and people with vision problems. Their tactics included compulsory sterilization, marriage restrictions, even mass involuntary confinement in colonies for those deemed unfit. Some 60,000 Americans were forcibly sterilized under laws in 27 states, according to Black, with thousands more unjustly interred in mental hospitals. Additionally, numerous marriages were annulled and thousands were prevented from marrying and having children. America's campaign was then exported around the world, including to Nazi Germany, where it became the basis for Hitler's master race theories and the scientific cover for his genocidal hatred. Black's investigation deployed a team of several dozen researchers who scoured scores of archives in four countries, unearthing some 50,000 documents. Black's research chronicles the pivotal involvement of many prominent members of the legal community. National editor Dirk Olin recently asked Black to expound on the lawyers and legal infrastructure that contributed to this dark chapter in American history.

Q. You say that American lawyers and judges were key to the eugenics enterprise. Who were the key figures, and what did they do?
A. In the 1920s Harry Olson, chief judge of the Municipal Court of Chicago, was also president of the Eugenics Research Association and used his court as a eugenics propaganda machine. Judge Olson's court employed America's most rabid race eugenics agitator, Harry Laughlin, as a special eugenical researcher, and then disseminated Laughlin's research in official court legislative guides across the United States and, indeed, the world. Thanks to the Chicago municipal court's legislative guides, eugenics proliferated quickly across America. One such book, Laughlin's 1922 Eugenical Sterilization in the United States, published and copyrighted by the Municipal Court of Chicago, became the nation's bedrock guide to racist legislation to biologically eliminate the "unfit." The court dispatched the guide to every state legislator and most county officials in the nation. Woodrow Wilson signed a forced sterilization bill in New Jersey that called for a kangaroo court-like hearing with sham due process. Edwin Katzen- Ellenbogen, one of New Jersey's chief eugenic legal advisers, later became a convicted war criminal doctor in the Buchenwald concentration camp. Madison Grant, an attorney trustee for the American Museum of Natural History, was an acknowledged influence on Nazi race dogma; Grant even received fan mail from Adolf Hitler, who praised Grant's book, Passing of the Great Race, as his "bible." Grant made the American Museum of Natural History a sponsor of the world eugenics movements by sponsoring its international congresses on its premises.
Q. Were Wilson, Olson, and Grant anomalies?
A. Not at all. In order to better identify undesirables and the unfit for persecution, a racist mental measurement test was administered to minorities proving they were "morons." The attorney who financed this project was Charles Gould, founder of Gould & Wilkie. The dean of Columbia Law School, Harlan Fisk Stone--who later became a U.S. Supreme Court justice--helped leaders of the ophthalmology profession craft legislation that would identify, round up, prohibit the marriage of, and forcibly sterilize anyone related to anyone with a vision problem. Stone used law school staff to help write legislation that would stand up to a legal challenge. A Columbia law professor, J.P. Chamberlain, even published a 1923 article in the [ABA] Journal calling for legislation to forcibly segregate into "colonies" those deemed "defective," and forbid their marriages. Similar efforts could be found in almost every state bar association, court system, and legislature.
Q. Did these statutes lead to the challenges that brought us the infamous decision by Oliver Wendell Holmes?
A. Actually, the famous Buck v. Bell case arose from a collusive lawsuit. The case was appealed to the Supreme Court for the express purpose of installing compulsory sterilization of the unfit as the law of the land. Attorneys representing both the commonwealth of Virginia and Carrie Buck colluded to create the appearance of an independent adversarial lawsuit. Buck, her mother, and her young daughter were all unjustly classified as "feebleminded." Once endorsed by Holmes, the floodgates opened, and jurisdictions rushed in to enforce existing dormant legislation and enact new laws. Nazi Germany followed suit, and at Nuremberg, their chief eugenicists defended themselves by quoting Holmes. That was the part of his opinion that concluded, "Three generations of imbeciles are enough." Unfortunately, the Nazis agreed.
Q. You spoke of marriage nullification and prohibition? Give me specifics.
A. Marriage prohibition laws existed in numerous states, and an innovation in Virginia, sometimes called "the one-drop rule," prohibited marriage between a white and a person with even one drop of nonwhite blood in their ancestry. This served as the model for the Nuremberg laws. In practice, Virginia's racist and eugenicist registrar, Walter Plecker, went on a one-man crusade to nullify marriages to pure whites of those even suspected of one drop of Indian, Asian, Negro, or other nonwhite blood. Plecker worked in tandem with prosecutors. Marriage infractions were felonies in Virginia and remained felonies until overturned by the Supreme Court in 1966.
Q. How was ophthalmology used as a legal surrogate for race targeting?
A. Doctors were among the most extreme agitators. For example, the leadership of the ophthalmology profession--including the section on ophthalmology of the American Medical Association--crusaded to identify all those with vision problems and their extended families, and then prohibit their marriage, confine them to concentration camps, and forcibly sterilize them. The first step in this crusade was enacting marriage prohibition legislation that top ophthalmology leaders concocted with the full knowledge of its national membership and with the assistance of Columbia's dean Stone. On April 5, 1921, a New York state senator sympathetic to the eugenics cause introduced Bill Number 1597. It would have amended the state's domestic relations law with a measure proposed by eminent eye surgeon and eugenics crusader Lucien Howe. The amendment required "the town clerk upon the application for a marriage license to ascertain as to any visual defects in either of such applicants, or in a blood relative of either party...." The clerk or any taxpayer could then apply to the local county judge, who would appoint either two physicians, one an ophthalmologist and the other a eugenic doctor, or one person who could fulfill both roles. Based on their testimony, the clerk was then empowered to prohibit the marriage. The law did not pass, even though ophthalmologists tried again and again.
Q. What has been done about the victims?
A. Not much. Five state governors have apologized in the last year or so, but in many cases, a misguided--and in some cases--obstructionist effort to hide the facts has centered on doctor-patient privacy protections. The law firms and legal institutions involved have remained silent. Thompson Hine, the firm that merged with Gould & Wilkie, declined to even give me a standard bio on their founder Charles Gould, let alone answer any questions. State legal advisers are worried over lawsuits, and are hiding behind patient confidentiality. All such claims are specious. The same twisted rationales of doctor-patient privacy were recently used in Germany to deny Holocaust researchers access to Mengele's Auschwitz files. I successfully challenged several state attorneys who tried to limit my access. All of them backed down.

9/2003 AMLAW 21

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