Academic journal article Harvard Law Review

Regulating Eugenics

Academic journal article Harvard Law Review

Regulating Eugenics

Article excerpt

Commentators have recognized that the constitutional law pertaining to modern reproductive techniques is underdeveloped and undertheorized. (1) In many instances, the law lags well behind technological realities and possibilities. (2) Although we might expect and perhaps desire the law to be behind the state of the art, it is troubling that legal thinking has not offered thorough analysis of existing and near-future reproductive technology, particularly because such technologies have received considerable attention in political philosophy departments.

For example, respected liberal moral philosophers have recently argued in favor of "liberal eugenics." (3) This term is somewhat of a misnomer, because liberal eugenics has almost nothing to do with the eugenics of the twentieth century. Liberal eugenicists reject coercive measures like state-sponsored sterilization. Instead, they typically assert that it is permissible (and perhaps praiseworthy) for individuals to voluntarily determine their children's genetic endowment. (4)

The ethical debate surrounding liberal eugenics (5) tends to eclipse the legal debate over the constitutionality of regulating the voluntary use of new reproductive technologies, including genetic engineering. (6) This focus is shortsighted because even if society determines that liberal eugenics is pragmatically bad or morally wrong, constitutional law could easily frustrate attempts to regulate it. The focus is also unexpected because eugenics and reproductive freedom are not new ideas in the United States. Congress, the states, and the Supreme Court have dealt with eugenics and reproductive technologies before.

This Note explores the limits of the state's power to regulate eugenics. There are two relevant and largely mutually exclusive legal doctrines: one emphasizing substantive due process concerns and the other emphasizing the use of the police power to protect public welfare. (7) Analysis under the substantive due process doctrine would sharply limit the state's power to regulate eugenics, while a similar analysis under the police power doctrine would allow eugenics regulation largely as the state sees fit. Because the two doctrines offer conflicting conceptions of state involvement in eugenics, because constitutional precedent offers little or no guidance to decide which doctrine is more relevant, and because both doctrines are amorphous and heavily informed by moral reasoning (if not decided on moral instinct), this Note turns to political philosophy and ethics to help decide what the constitutional limits on state regulation of eugenics should be. (8) Part I offers a brief history of the eugenics movement, focusing on its legal regulation. Part II introduces the reader to the relevant ethics literature, emphasizing the arguments surrounding eugenics that come from the liberal tradition. Part III argues that liberal eugenics is best understood as a fundamental right; some techniques are already covered by substantive due process, and others are sufficiently analogous that they should be protected. Part IV explains why the use of the state's police power to regulate or ban liberal eugenics is fraught with the risk of state-mandated eugenics. Part V turns to moral argument to explain why constitutional law should not countenance state regulation of eugenics except in extremely narrow circumstances. The main reason is that state regulation of eugenics--whether restricting it or requiring it--is antithetical to basic postulates of liberal democracy. Part VI briefly concludes.

I. THE HISTORY OF EUGENICS

Francis Galton, a cousin of Charles Darwin, coined the term "eugenics" in 1883, defining it as

 
   the science of improving stock, which is by no means confined to 
   questions of judicious mating, but which, especially in the case of 
   man, takes cognisance of all influences that tend in however remote a 
   degree to give to the more suitable races or strains of blood a 
   better chance of prevailing speedily over the less suitable than they 
   otherwise would have had. … 
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