UNCA D is an attorney. Each year I must take fifteen hours of continuing legal education, including three of legal ethics. Since I rarely practice anymore, except for nonfeepaying clients known as . . .
. . . family, the point of keeping up with the latest developments (at an annual cost north of $750, thank you very much!) is somewhat unclear.
That's why this last cycle I invested in a one-hour class about a fascinating case with absolutely no utility to my vestigial areas of practice.
Buck v. Bell is sometimes said to have been the worst case ever decided by the U.S. Supreme Court. It is also Exhibit A for the proposition that Clever People with too much power are not merely annoying; they can also be dangerous.
The case is about forced sterilizations, a tool of eugenics -- a movement almost all Clever People of the time uncritically endorsed. Darwinism taught survival of the fittest, and Darwin himself bemoaned the downward tendency of "negative selection" in human beings, partly as a result of keeping weak, unfit members of society alive and healthy through "asylums for the imbecile, the maimed, and the sick," through poor laws and other social reforms, and through medical advances such as vaccinations for smallpox. All these conspired to permit "the weak members of civilized societies to propagate their kind," Darwin wrote.
Worse were the "scientific" Social Darwinists, who warned against "race suicide" from declining birthrates for the "best" social classes, against the fecundity of immigrants and other unfit kinds.
Eugenics was a movement to apply the laws of genetics to human beings, forcibly if necessary, to produce more geniuses (positive eugenics) and reduce the supply of "socially inadequate classes" (negative eugenics).
Those on the hit list included, among others, those with low intelligence, along with the mentally ill, epileptics, criminals, alcoholics, the ill, folks with physical handicaps (blindness, deafness, deformations of the limbs), and the dependent (including ophans, ne'er-do-wells, the homeless, tramps, and paupers).
These ideas caught on, and by 1925, "twenty-three of the forty-eight states had passed at least one eugenic sterilization law." [Quotations and most facts in this post are from John G. Browning (may his tribe increase), "Eugenics and the Supreme Court: The Story Behing Buck v. Bell, State Bar Webcast, September 30, 2009.]
One who went under the knife of forced sterilization was eighteen-year-old Carrie Buck, institutionalized at the Virginia State Colony for Epileptics and Feebleminded. An "expert" (who had never examined her, by the way) decalred her a "lowgrade moron" and a family history that indicated "a very high frequency of feeble-minded persons." Another said her "blood" was bad.
Ms. Buck's lawyer, by the way, had close ties to the institution and was less than ineffective; he actually helped the authorities.
Other evidence, not examined at the time, showed she was quite normal, mentally, and that the pregnancy that had led to her institutionalization was the result of rape.
The most perverse part of the case were claims by authorities that sterilization was for her benefit. It would "restore her to the liberty, freedom and happiness which thereafter she might safely be allowed to find outside the institutional walls."
In May 1927, the Supreme Court ruled eight-to-one that the Virginia statute complied with the equal-protection clause of the Fourteenth Amendment to the U.S. Constitution. The most famous quotation in the case was by Justice Holmes, then eighty-six and well past his prime:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . . Three generations of imbeciles are enough.
Ms. Buck was sterilized against her will on October 19, 1927. In time, at least 60,000 others would be involuntarily sterilized -- 20,000 in California alone (then as now, a early adopter to novel forms of nonsense), and 8,000 more in Virginia.
Eugenicists applauded. One magazine even crowed about the hereditarian explanation for the opinion. Mr. Holmes, after all, was "the distinguished son of a distinguished physician."
Mr. Holmes later complained about critical letters he received from "the religious" and "cranks."
The one dissenter was Pierce Butler, a Catholic.
Any why did Mr. Holmes, ordinarily a most careful lawyer, write such a "brutal and brief" opinion? Mr. Brown, whose paper I am using for this post, says it was becaused Mr. Holmes himself was an enthusiastic eugenicist.
Mr. Holmes "saw eugenic sterilization as an important social tool that would save this country from degeneration," says Mr. Mr. Brown, Mr. Holmes may have shared the view that his own intellectual power was proof of the truth of eugenic theory. He also apparently believed, quite literally, that his survival of multiple gunshot wounds in the Civil War was proof of Darwinian fitness. Mr. Brown adds this: "His correspondence and speeches are replete with references to the danger of being 'swamped' by other races and the necessity of invigorating the white Anglo-Saxon race." Finally, Mr. Holmes declared himself "a devout Malthusian," referring to the economist who famously, and wrongly, declared that population growth would soon exceed supplies of food and other resources.
All Clever People -- and Mr. Holmes was one of the cleverest in U.S. history -- are, before they are clever, people. And people, even one as gifted as he, are imperfect creatures. The wisdom of our Founders in resting power in the people, not self-perpetuating elites, in dividing power between the national government and the states, and in dividing national power again among three branches is proved as much by his case as by any. One person can cause great mischief, as Mr. Holmes did here. But in time we corrected the profound errors of the eugenicists.
The nail in the coffin of eugenics was Nazi Germany, which showed the full implications of the doctrine. Defendants at Nurenburg used as part of their defense the writings of notable U.S. eugenicists.
[One big-time U.S. eugenicist was Margaret Sanger, founder of Planned Parenthood and a saint of modern feminists and the Houston Chronicle editorial board. Andrea Georgsson, now mercifully departed from said board, idolized her. In this essay, Ms. Georgsson wrestles with Ms. Sanger's unseemly enthusiasm for purifying the human race of undesirables. "I, for one," Ms. G. declaimed, "do not believe Sanger's promotion of eugenics outweighs her overall contribution [to birth control]."
[Well. That's a relief.]
Virginia repealed its forced sterilization law in 1981. California, in 1979.
Finally, here's something to remember when next you hear a senator ask a Supreme Court nominee whether she will follow court precedent: Buck v. Bell has never been overruled.
UPDATE: Thanks for the link from Harris County Almanac.
We missed Buck v. Bell in law school, focusing instead on Skinner v. Oklahoma (1942) where the Court ruled that the right to procreate is a fundamental right, requiring laws passed burdening that right to have a compelling or overriding government interest (such as the health or safety of the U.S. populace; see Korematsu v. U.S. (1944) in which the Supreme Court allowed the internment of the Japanese during WWII).
Given that California's and Virginia's laws were not repealed until almost forty years after Skinner, it does seem that forced sterilization laws in some instances can be constitutional. Scary.
Posted by: Ace | May 18, 2010 at 04:46 PM