Regulating Eugenics
Regulating Eugenics
121 Harv. L. Rev. 1578
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. 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. 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.