Fundamental Rights

Fundamental rights are those rights that are explicitly or implicitly sanctioned by a country’s constitution, are guaranteed to all citizens and most residents of that country and, given their importance, are accorded special protection by the judiciary. Historically, they coincide with the natural rights assigned to every human being and with those rights listed in the US Bill of Rights. They prescribe the limits of intervention and interference of the central government in citizens’ lives and can only be partially and transitorily restricted under a state of exception; for instance, in case of national emergencies like a war, a spate of terrorist attacks, or civil unrest, when security concerns prevail over certain civil liberties and personal entitlements. However, even a partial suspension or infringement of these rights must be strictly scrutinized and approved by the highest judicial body of a country which, in the United States, is called the Supreme Court.

These rights include the right to life and to generate life, to marry and to raise a family, the right to vote, to personal privacy, and to expect equality of treatment before the law – the “due process of law” of American Constitutional Law –, together with a series of civil liberties such as freedom of thought, speech and press, assembly and association, petition and religious affiliation and practice. Civil liberties are what the English jurist William Blackstone (1723-1780) described as “the great end of all human society and government…the state in which each individual has the power to pursue his own happiness according to his own views and of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws.”

This obviously implies that civil liberties may sharply contrast with the self-interest of the majority, which is required to refrain from arbitrary actions. When a majority of citizens strongly believe that their views and reasons are so logically compelling and morally persuasive that everyone in their right mind should agree on a given course of action, the consequences for civil liberties can be devastating, for the provisions contained in the Constitution are subject to interpretation and amendment. This is precisely what occurred in the early twentieth century, with Prohibition and eugenics, at a time when many grew intensely preoccupied with what they believed to be unmistakable indications of moral failure and biological degeneration. For some time, an intransigent and self-righteous moralism and the conviction that what stood in the way of the modernizing process was the result of ignorance, parochialism, and retrograde outlooks, resonated with the beliefs of a “moral majority.” In order to justify the adoption of measures that infringed basic liberties, some reformers who regarded themselves as modern, progressive and boldly experimentalists, resorted to humanitarian, utilitarian, pragmatic and medical arguments, and appealed to the quest for social perfection, which would take its inception from the internalization of the rules of a proper conduct. These sentiments generated a constellation of habits of thought, norms and ideals, a secularized version of the Protestant ethic, emphasising self-sufficiency, purity, conscientiousness, self-discipline and social planning, which obliterated the separation of the legal and the moral spheres.

This ostensibly progressive civic religion was seen by many as essentially fair and morally unassailable. Resistance to ethical self-scrutiny was particularly strong. Various representatives of the judicial branch became self-appointed guardians of the public morality and urged state governments to intrude in people’s private lives “for their own good”. Wayward citizens, namely those who could not be converted to an acceptable lifestyle, and whose behaviour remained unpredictable, were liable to being sterilized or institutionalized. This kind of society, at once ready to embrace an abstract notion of humankind and reluctant to put up with certain categories of human beings, was so insecure, apprehensive, and self-doubting, that it was willing to carry out self-mutilation in order to become risk-free, while refusing to consider the motives of the offenders and “miscreants”.

By 1914, marriage restriction laws targeting “feeble-minded” citizens had been enacted in more than half the states and, by 1917, 15 states had passed sterilization laws. But “only” a few thousand sterilizations had been actually performed, mainly because nearly half of such laws had been struck down on the ground that they violated due process, freedom from cruel and unusual punishment, and the equal protection clause. A second wave of eugenics laws coincided with the Immigration Restriction Act (1924) and Virginia’s Act to Preserve Racial Integrity (1924). In 1924, Virginia also passed a law authorizing the involuntary sterilization of alleged mental defectives. This law was upheld, 8-1 by the Supreme Court, in Buck v. Bell 274 U.S. 200 (1927). Justice Oliver Wendell Holmes, who was joined by Louis D. Brandeis and William Howard Taft, influenced by a crude scientific naturalism, a pessimistic anthropology, and a corrosive skepticism, wrote in the now infamous opinion for the Court that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…Three generations of imbeciles are enough”. As a result of this decision, taken in a country that prided itself on its commitment to individual freedom but chose to substitute clear constitutional principle for scientifically unverifiable notions of social progress, nearly half the U.S. states passed eugenics laws authorizing compulsory and non-voluntary sterilization. Sterilization rates dramatically increased, especially during the Depression, when few families were prepared to put up with the social protection of what was perceived to be a disproportionate number of dependent people, and did not protest against the systematic infringement of their fundamental rights.

The theoretical foundations of constitutional rights were undermined by prominent legal scholars in North America and Europe who favored the notion of “ethical state”, one whose “intrinsic morality” and thorough grasp of the laws of historical and biological necessity made its arbitration and dictates on public matters virtually indisputable. As a source of a morality more in line with the demands of modernity, the state was not necessarily bound by constitutional principles and norms. Radically realist and functionalist jurists argued that personal rights were not inalienable, for they really were culturally and historically relative legal fictions or superstitions, their existence being, to a large extent, contingent on the majority’s willingness to uphold them, that is, on considerations of general welfare and public utility. This Machiavellian interpretation of public law made ethics the handmaid of politics: rights could only be granted by law, and social utility overruled the “untenable notion” of human rights. Therefore virtues, rather than the rights prescribed by the American Constitution, were the defining attribute of citizenship. Enlightened governments were expected to foster virtues and restrict personal rights for the sake of communal rights and civic responsibility. Instead of protecting the citizens, law legitimized the persecution of certain categories of people, supposedly unable to enjoy freedom and to pursue happiness, by gradually stripping them of their rights and legal protections. Such policies were described as politically necessary and ethically indisputable. In a tragic reversal of roles, according to the dominant “discourse of truth” those who violated the physical integrity of other citizens were fulfilling a constitutionally sanctioned civic duty, while the victims of involuntary sterilization and confinement were a social threat and, as such, subject to legally mandated sterilization or confinement “for the good of society.”

Most such laws were only repealed in the late 1960s and 1970s, even though the Supreme Court ruling in Skinner v. Oklahoma 316 U.S. 535 (1942) defined procreation “one of the basic civil rights of man” and sterilization an invasion of fundamental interests which, according to Justice William O. Douglas, “in evil or reckless hands,” could have genocidal consequences.

Eugenics

The logo of the Third International Congress of Eugenics, held in New York in 1932, defined eugenics as ‘the self direction of human evolution’. Negative eugenics was concerned with the elimination of inheritable diseases and malformations and involved prenuptial certificates, birth control, selective abortion, sterilization, castration, immigration restriction and, in Nazi-occupied Europe, involuntary ‘euthanasia’. Positive eugenics would instead encourage the propagation of desirable characteristics via tax incentives for ‘fit parents’, assortative mating and, in the years to come, cloning and germline engineering.

The term ‘eugenics’ was coined in 1883 by Sir Francis Galton (1822–1911), after the Greek εύγενής, meaning ‘wellborn’. Galton mistakenly assumed that all traits are passed down unaffected from our ancestors (‘law of ancestral heredity’) and envisioned eugenics as a naturalistic religion antagonistic to Christianity. An extreme version of this theory, called Ahnenerbe (‘ancestral inheritance’), which described individual life as the epiphenomenon of perpetual bloodlines, was deployed by Heinrich Himmler to justify his plans for a New European Order.

Traces of this erroneous understanding of genealogies in terms of genetic continuity were evident in the writings of Nietzsche, Ernst Haeckel, the most influential German popularizer of evolutionary theory, American biologist Charles Davenport, who held that predispositions to social deviance were inherited from ‘ape-like ancestors’, and British biostatistician R. A. Fisher, who once (1929) remarked that, if King Solomon’s line was not extinct, he was ‘in the ancestry of all of us, and in nearly equal proportions, however unequally his wisdom may be distributed’. A similar combination of Eternal Recurrence – human beings as expressions of the immortal germplasm – and natural teleology of history – biology as destiny – stamped their positions.

Similar convictions informed Cesare Lombroso’s theory of atavism and those of various Social and Racial Darwinists, animal breeders and pedigree researchers. Among them was the American psychologist Herbert Goddard, who authored a study of hereditary feeble-mindedness. The Kallikak Family (1912), based on patently manufactured data, proved so influential on both sides of the Atlantic that the German translation (1914) was reprinted in 1933. Other genealogical studies stressed the linkage between folk hereditarian beliefs about the transmission of patrimonial and biological inheritance and the religious notion of the inheritability of sins, concurring to foster notions of evolutionary throwbacks and of populations as bundles of lineages, together with the equation of genealogical perpetuation with social distinction.

Most early eugenicists were raised in deeply religious families and, between 1907 and 1940, eugenics laws were only promulgated in those countries where Puritan, Pietistic and Calvinist denominations were stronger. In fact, religious affiliations and the heterogeneity of Western cultures led to different styles of eugenics. The rediscovery of Mendelian laws, August Weismann’s experiments on inheritability, T. H. Morgan’s gene theory and the publication of Wilhelm Johannsen’s seminal scientific review ‘The Genotype conception of heredity’ (1911), established the new orthodoxy of genetic research. ‘Germplasm’ (reproductive tissues) and ‘somatoplasm’ (non-reproductive tissues) were distinct and separate. In Romance and Far Eastern countries, the prevalent interpretation was that the distinction between soma and germplasm did not imply the one between germplasm and environment. Accordingly, medical researchers focused on external, physiochemical mutagenic factors, rather than on differential genetic predispositions and hereditary transmission, which had strong eugenic implications. Given these conflicting allegiances, it was inevitable that the large Italian and French delegations attending the first and second international eugenics congresses (London 1912, New York 1921) would criticize those scholars who posited the existence of biologically distinct human groups with differential disease susceptibility.

The tenor of most of the papers presented at the first International Congress of Social Eugenics, held in Milan in 1924, made it clear that Latin eugenicists had opted for hygienism, social medicine and pro-natalism. They urged greater caution before drawing conclusions from a limited sample of data on inheritance transmission. On that occasion, Russian biologist N. K. Kol’tsov juxtaposed the unnecessary timidity of Italian eugenicists with the hasty determination of American eugenicists.

In 1929, while Eugene Gosney and Paul Popenoe’s Sterilization for Human Betterment, extolling the achievements of Californian eugenicists, was being translated into German and would soon become an important source of inspiration for European race hygienists, Corrado Gini, a world-famous Italian demographist and eugenicist, and Mussolini’s confidant, presided over the second Italian Congress of Genetics and Eugenics in Rome. This international meeting was attended by race hygienists Alfred J. Mjoen (Norway), Eugen Fischer and Fritz Lenz (Germany), who hoped to persuade Mussolini to become the saviour of the white race’s genetic pool. However, Mussolini’s conception of totalitarian demography privileged quantity over quality, and did not regard the genetic enhancement of the Italian stock as a priority. Gini himself decried the determinism, racialism, and coerciveness of the American and ‘Germanic’ eugenics proposals. Lenz’s dispirited comment in the Archiv für Rassen- und Gesellschaftsbiologie was that whenever the subject of eugenics was brought up at the Italian congress, it was only to stigmatize it.

This rift, aggravated by comparable contrasts between North American and Latin American eugenicists that had emerged at the 1927 Pan-American Eugenics Conference in Havana, led, in 1934, to the creation of the short-lived Latin Federation of Eugenics. Its first and last congress, held in Paris in 1937, restated the strong commitment to ameliorative social reforms, public hygiene, and the Hippocratic/Galenic ethos of compassionate care.

Fragmented and with its credibility increasingly eroded, the international eugenics movement was on the wane already in the late 1920s, so that mainline eugenics gave way to ‘reform eugenics’, family planning and population control, characterized by a greater emphasis on environmental factors, voluntary sterilizations, birth control, the rational management of human resources, and the repudiation of an overtly racist language.This tactic made eugenics far more palatable and effective: if the impact of nurture was so important, then children should only be raised in healthy home environments. In order to redress nature’s essential randomness and synchronize biological and socioeconomic processes, irresponsible citizens unable to meet the challenges of modern society could be forced, blackmailed, or cajoled into accepting sterilization or castration. Neo-Malthusianism replaced biological determinism, and the Hardy-Weinberg theorem (1908), which demonstrated that sterilizing or segregating the ‘mentally unfit’ would not appreciably reduce the incidence of ‘feeble-mindedness’, was now deemed irrelevant.

Consequently, by the early 1930s, eugenics sterilisations programmes were in full swing. Following the moral panic generated by the Great Depression, few families were prepared to put up with the social protection of what was perceived to be a disproportionate number of dependent people. It was argued that under exceptional circumstances, basic rights could be withheld and that social services should only be granted to those whose social usefulness and biological capability were certain. Consequently, the international political climate proved very receptive to the arguments of those prominent American, German, and Swedish jurists who agreed that personal and social rights were culturally and historically relative legal fictions or superstitions, their existence depending, to a large extent, on the majority’s willingness to uphold them. Enlightened governments were expected to foster virtues and restrict personal rights for the sake of communal rights and civic responsibility.

This led to the paradoxical result that involuntary sterilizations and confinements were almost exclusively carried out in the most advanced and progressive democracies, the only exception being Nazi Germany. Most such laws would only be repealed in the late 1960s and 1970s. By contrast, in those same years, legislators and jurists in Latin, Eastern European, Far Eastern, and developing countries, as well as in Holland and Britain, objected to selective breeding, involuntary sterilization, the assault on the notion of free will, and the linear extension of natural laws into the social sphere. Eugenics and the marriage between bureaucratic rationality and scientism did not resonate with every local repertoires of values and symbols.

After World War 2, the transnational eugenics movement was forced underground by the popularity of the human rights discourse, and pro-eugenics journals and organizations adopted new names. But eugenics never died out. While some eugenicists espoused the aims of Planned Parenthood and addressed questions of population quantity, celebrated scientists at the 1962 CIBA-sponsored London conference and 1998 UCLA ‘Engineering the human germline’ symposium advocated programmes of involuntary sterilization, human cloning, and genetic enhancement. Meanwhile, Singapore adopted incentives to support assortative mating among college graduates and voluntary sterilization among the poor and, in 1995, the Chinese ‘Maternal and Infant Health Law’ urged premarital certification of a healthy constitution, mostly targeting ethnic minorities and the rural population.

Western societies themselves are on the verge of a eugenics revival in the form of reprogenetics, germline engineering, and cloning, a trend which is indirectly reinforced by the courts’ recognition of wrongful birth and wrongful life claims, by the commodification of healthcare, by the diffusion of testing for genetic predispositions, and by the rhetoric of genetic responsibility, involving new forms of discrimination and exclusion.