Sunday, July 27, 2008

The Law’s Use of “Science” Isn’t Governed By The Rules of Science by Anthony McCarthy

There is an interview in today’s Boston Globe with Victoria Nourse about the dangerous history of eugenics and the general use of shoddy science by the law.

The temptation will be to focus on the Nazi’s use of American pioneering eugenics laws and policies as cover for the beginning of their “solution”. And while doing that, please notice that American eugenicists were emboldened by the early Nazi activities in this area. But the really important thing to notice is the history of eugenics here, in the Unites States, and how it figured into actual law and administrative policy once sanctioned by the Supreme Court in 1927*. For us the most important use of this history is in how these things were allowed within the context of the United States Constitution and the class system in place here.

Q: How did the Depression force the issue of sterilization?

A: There was no money. One way that asylum directors could reduce their populations was by sterilizing "safe" people and releasing them. By 1933-34 Oklahoma decided to enforce its sterilization laws. The governor also declared that criminals would avoid his state if they knew they could actually be sterilized as opposed to other states where the law existed but was never applied.

The, by now undeniable, divorcement from reality of the U.S. Supreme Court and the difficulty of overturning their use of poshly pedigreed trash science has been and will likely be an increasing problem for those of us interested in protecting our liberties and equality. Judges are as prone to the superstition of scientism as anyone else and, as seen in the example of the Bush regime, junk science in the interest of a priveleged elite can rule over both real science and the fact that the junk is, despite its presentation, pseudo-science. Even Supreme Court rulings take effect at a glacial pace as seen here:

Q: Did the 1942 Supreme Court decision end enforced sterilization in the US?

A: No. It continued for a very long time. I refer to a case in the 1980s where an African-American woman, a college graduate, sued because she was sterilized in this way. Basically they used consent to justify this in the asylums, the welfare offices. But the consent was often extorted, obtained by threats of restraints in asylums, of punishment, of expulsion from the welfare system

Q: What if the Supreme Court had upheld the Oklahoma law?

A: There would have been more violence in the prisons, for one thing. The prisoners in McAlester used violence, to keep the case alive. Sterilization in asylums would probably have increased as a way to save money. I shudder to think.

Having written about my reservations about the pop-law enthusiasm for dodgy-looking cognitive and behavioral science in the past, I’m glad to see that some actual scholars are having doubts about it as well. Since scientists aren’t effectively countering the premature promotion of very preliminary research, it’s probably up to people such as legal scholars to throw up the warning flag.

Q: What are you warning against?

A: The true problem is false genetics, false prediction. I'm thrilled by advances in genetic research, but I get nervous when I read about the "God gene" or the "gay gene" because I can't judge that as a scientific claim. I'm also warning against unanticipated consequences. Most geneticists were pro-eugenics, they believed in the power of their discoveries. Meanwhile eugenicists looked for the feebleminded and found them. There are risks of arrogance in science, but the real dangers lie in the popularization of false science, in convincing laypersons of the inevitability of traits that are contingent. Genetics is a science of probability, not fate.

In the behavioral and allied sciences the history shows way too much of this kind of wishful “discovery”. When that attitude provides pseudo-scientific fodder for political and judicial expediency in pursuit of a goal, the results are very dangerous.

* The besainted Holmes on this provides a lesson in what to look out for when dealing with the myopia of legal and academic thinkers and their propensity to look at people as mere categories instead of as persons having rights of their own. It also shows that when people have a lot of power, you can’t just go on reputation. No decision by a hero with power should go unexamined due to sentimental or even emotional attachment.