“LET HER BE STERILIZED:” BUCK V. BELL, THE ...“LET HER BE STERILIZED:” BUCK V. BELL, THE AMERICAN EUGENICS MOVEMENT, and THE ROOTS OF THE RIGHT TO PRIVACY JOHN G. BROWNING

“LET HER BE STERILIZED:” BUCK V. BELL, THE AMERICAN EUGENICS MOVEMENT, and

THE ROOTS OF THE RIGHT TO PRIVACY

JOHN G. BROWNING Thompson, Coe, Cousins & Irons, LLP

700 N. Pearl, 25th Floor, Dallas, Texas 75201 Phone: 214.871.8215/Fax: 214.871.8209

[email protected]

State Bar of Texas BILL OF RIGHTS COURSE

May 28, 2010 Austin

CHAPTER 13

JOHN G. BROWNING Attorney\Thompson Coe\Dallas, Texas John Browning is a partner in the Dallas office of Thompson Coe where he handles civil litigation in state and federal courts in areas ranging from employment and intellectual property to commercial cases and defense of products liability, professional liability, media law, and general negligence matters. Mr. Browning received his BA with general and departmental honors from Rutgers University in 1986, where he was a National Merit Scholar and a member of Phi Beta Kappa. He received his JD from the University of Texas School of Law in 1989. Some of his honors include being a 2009 recipient of the prestigious Burton Award for Achievement in Legal Writing; rated “AV,” the highest commendation issued by Martindale- Hubbell for legal ability, ethics, and professionalism; selected as a Texas “Super Lawyer” (2005- 2009); inducted as a Charter Fellow of the Litigation Counsel of America, a trial lawyer honorary society limited to 3,500 fellows, representing less than one-half of one percent of American lawyers; and elected to the American Law Institute (one of seven lawyers in Texas elected in 2009). Mr. Browning is a noted legal writer whose work has appeared in many national and regional legal publications. He writes the syndicated column “Legally Speaking,” which won the Clarion Award, the Suburban Newspaper Association Award, the Texas Press Association Award, and the Houston Press Club’s Lone Star Award for Best Newspaper Column. In 2009, he was named “Journalist of the Year” by the Houston Press Club, and in 2007 was nominated for a Pulitzer Prize in Journalism. He has been quoted in The New York Times, Time magazine, and other national publications as an expert on social media and the law. His book The Lawyer’s Guide to Social Networking will be published by Thomson Reuters this year.

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13

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TABLE OF CONTENTS

I. EUGENICS BEGAN AS A RESPONSE TO A NUMBER OF INTERTWINED FACTORS IN THE LATE 19TH CENTURY .................................................................................................................................................... 1

II. JUSTICE HOLMES' REASONING IN THE BUCK V. BELL OPINION ............................................................ 9

CONCLUSION ............................................................................................................................................................. 14

NOTES .......................................................................................................................................................................... 15


1

“LET HER BE STERILIZED:” BUCK V. BELL, THE AMERICAN EUGENICS MOVEMENT, and THE ROOTS OF THE RIGHT TO PRIVACY

Justice Oliver Wendell Holmes, Jr. once stated "It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong."1 Indeed, many scholars maintain that Justice Holmes' detachment and policy of deferring to the legislative will made him one of America's greatest jurists. Felix Frankfurter observed

Probably no man who ever sat on the Court was by temperament and discipline freer from emotional commitments compelling him to translate his own economic or social views into constitutional commands.2

In Frankfurter's eyes Holmes "transcended personal predilections and private notions of social policy, and became truly the impersonal voice of the Constitution."3

A Social Darwinist, Justice Holmes believed that life was a constant struggle.4 Competing economic interests and political ideologies were all subject to testing in the Darwinian arena. Holmes upheld freedom of speech, the rights of labor unions, and social reform legislation, arguing that since only the strongest group or idea would survive, it was best to allow unfettered conflict. As much as he might personally disagree with "social experiments" by state legislatures, Holmes felt that such legislation was an expression of the dominant will of the voting majority. Writing to Sir Frederick Pollock, Holmes said, "I am so skeptical as to our knowledge about the goodness or badness of laws that I have no practical criterion except what the crowd wants."5

In one of his most memorable Supreme Court opinions, however, Justice Holmes did more than merely allow the majority vote to hold sway. The 1927 case of Buck v. Bell involved the constitutionality of a Virginia law authorizing the sterilization of mental defectives6 for eugenic purposes.7 In his majority opinion upholding the statute, Holmes did more than just defer to the legislature. Holmes openly embraced eugenic reform with particularly forceful language that gave legitimacy to the then shaky eugenics movement.

While commentators like Felix Frankfurter have attributed Justice Holmes' role in Buck v. Bell to a policy of judicial restraint, others have accused Holmes and his brethren on the Court of suddenly going along with the "eugenics craze" in the United States.8

As this paper will demonstrate, however, Holmes was no casual addition to the eugenics bandwagon. Careful analysis of Holmes' correspondence (both published and unpublished), speeches, and legal writings reveal another, darker side of the "Yankee from Olympus." Justice Holmes fervently believed not only that it would be possible for science to breed a better race of human beings, but that such reform should begin by eliminating "unfit" members of society. Moreover, these beliefs were firmly rooted in Justice Holmes' philosophy long before the case of Buck v. Bell presented him with an opportunity to further the eugenics cause.

From the handful of scholars who have identified Holmes as a eugenicist, a satisfactory examination of the sources and depth of Holmes' eugenic beliefs has yet to emerge.9 This paper hopes to address this gap in Holmes scholarship by placing Justice Holmes in historical perspective. The first part of this paper analyzes the historical background of the eugenics movement itself and particularly its strategy in passing and testing the validity of eugenic sterilization statutes. Part I culminates in a discussion of the Buck v. Bell case itself, including Justice Holmes' opinion and reactions to it. The second part of this paper explores the beliefs behind both the substance and the tone of Holmes' opinion. Part II demonstrates not only that Holmes held eugenic beliefs long before the advent of the eugenics movement, but that these hopes for eugenic reform were the product of various factors: Holmes' social Darwinist leanings and race-suicide fears, his Civil War experiences, and outside reading. As Part II of this paper illustrates, eugenics occupied an important place in Justice Holmes' philosophy, judging from the frequency and fervor with which Holmes wrote on the topic.

I.

Eugenics began as a response to a number of intertwined factors in the late 19th century.10 In Great Britain and the United States, industrialism's effects were worsened by tides of new immigrants flowing into the cities and hastening the urbanization process. In addition to these social concerns, Charles Darwin's landmark work on evolution through natural selection provoked a new interest in science. With the advent of "Social Darwinism", reformers, businessmen, and philosophers like Herbert Spencer began to apply (or, more aptly, misapply) principles of evolutionary biology to society. They saw the existing social order


2

as the outcome of a "struggle for life" in which the fittest survived. At the same time, fears of "race-suicide" came into vogue. Social Darwinists claimed that birthrates of the "best" social classes were declining while society was "swamped" by rapidly-multiplying immigrants and other "inferior" elements; much of this, it was believed, was due to charitable reforms enabling the "unfit" to propagate.

Although these beliefs seemed to run counter to the necessity of open competition emphasized in The Origin of Species, Darwin himself confused the issue in his later writings. In The Descent of Man, for example, Darwin deplored the propagation of the weak, unfit members of society:

With savages, the weak in body or mind are soon eliminated; and these that survive commonly exhibit a vigorous state of health. We civilized men, on the other hand, do our utmost to check the process of elimination; we build asylums for the imbecile, the maimed, and the sick; we institute poor-laws; and our medical men exert their utmost skill to save the life of everyone to the last moment. There is reason to believe that vaccination has preserved thousands, who from a weak constitution would formerly have succumbed to smallpox. Thus the weak members of civilized societies propagate their kind.11

Darwin found this element of human sympathy for the weak to be a necessary part of human nature, but still "highly injurious to the race of man."12 He pointed out that, "excepting in the case of man himself hardly anyone is so ignorant as to allow his worst animals to breed."13 Darwin also noted that military conflict, in addition to resulting in a survival of the fittest, could also lead to "negative selection" of the human race. Soldiers, according to Darwin, are

exposed to early death during the war, are often tempted into vice, and are prevented from marrying during the prime of life. On the other hand, the shorter and feebler men, with poor constitutions, are left at home, and consequently have a much better chance of marrying and propagating their kind.14

While Charles Darwin stopped short of advocating sterilization of the inferior members of society, he did suggest one check on mankind's "downward tendency" of negative selection. Darwin called for measures ensuring that "the weaker and inferior members of society do not marry so freely as the sound."15 He

implies that such a measure would have to have the force of law, since voluntary abstinence from marriage by the unfit is "more to be hoped for than expected."16

However, it was Darwin's cousin, Francis Galton, who in 1883 coined the term "eugenics" (from the Greek, meaning "well-born") to refer to "the science which deals with all influences that improve the inborn qualities of the race . . . [and] develops them to the utmost advantage."17 Galton employed a statistical approach as he studied first the family trees of famous individuals and, later, twins. His research convinced him that many physical and psychological traits were inherited, leading Galton to conclude that society could produce men of genius through planned breeding.

Galton's hereditarian analysis was reinforced by scientific discoveries elsewhere in Europe, including the work of German biologist August Weismann and the rediscovery of Gregory Mendel's pioneering studies in genetics (including the later disproven belief that separate traits were linked to individual genes.) Although Mendel had only used his famous ratios to describe the physical traits of peas, early eugenicists used Mendelian ratios to describe the most complex aspects of human social behavior. In other words, these early proponents of eugenics (Winston Churchill and Theodore Roosevelt among them) went beyond arguing the inheritability of traits like hair or eye color; they also argued that psychological characteristics like generosity or truthfulness could be passed from one generation to another. Eventually, eugenicists decided that not only that individual heredity could be analyzed, but that "science" could also discern "pools" of traits that characterized a particular race, nation, or economic class.

As immigration increased and fears of race degeneration mounted, the emphasis in eugenic study shifted from "positive eugenics" (encouraging people with socially beneficial traits to marry others like them and reproduce) to "negative eugenics" (eradicating socially inadequate classes through sterilization or marriage restrictions in order to weed out degenerate traits in the population). Just who constituted the "socially inadequate classes"? According to a leading American eugenicist, the term covered an incredibly broad range of people:

(1) feeble-minded; (2) insane (including the psychopathic); (3) criminalistic (including the delinquent and wayward); (4) epileptic; (5) inebriate (including drug-habitués); (6) diseased (including the tuberculous, the syphilitic, the leprous, and others with chronic, infectious, and legally segregable diseases); (7) blind (including those with seriously impaired vision); (8) deaf


3

(including those with seriously impaired hearing); (9) deformed (including the crippled); and (10) dependent (including orphans, ne'er-do-wells, the homeless, tramps, and paupers).18

The eugenics movement found a receptive audience in the United States, where faith in science combined with existing social factors. The rapid pace of urbanization (resulting in the creation of vast slums) and waves of immigrants from central and southern Europe were causes for alarm in the minds of many white, Anglo-Saxon, upper-class Americans. They felt that the "American stock" was doomed by rapidly breeding foreigners, whose "inferior" qualities would hasten a national decline. This nativism of the 1890s and the early 1900s combined with the atmosphere of reform prevalent during the progressive era.19 Like other reform movements, eugenics emphasized state action toward a common goal and placed the collective destiny of society above individual success. The eugenics movement was also aided by the growing interest in philanthropy and public health, as private endowments and public appropriations for hospitals and charitable organizations grew. The fact that eugenics sustained rather than challenged accepted beliefs (i.e., identification of the "unfit" as the lower classes, who are held down not by environmental conditions but by biological deficiency) and appealed to people on a variety of levels (for example, the inherently nationalistic emphasis on preserving America's racial stock), was crucial to its spread.

In reality, however, eugenics was a far cry from traditional reform movements. Although eugenic policy ran contrary to laissez-faire beliefs with its highly intrusive state regulation of social relations, eugenicists believed that manipulation of human reproduction would help reestablish a balance that had been upset by previous charitable reforms. Eugenic measures like sterilization would help eliminate "poorer stocks" that would have perished through natural selection, had charity not inhibited the process. Nevertheless, the eugenics movement, with its hereditarian viewpoint and active social plan, took its place among the reform movements of the progressive era.

The eugenics movement grew quickly in the U.S. In 1903, the American Breeders Association was founded; as a result of the strength of its Eugenics Section (led by David Starr Jordan and Charles B. Davenport), the organization was renamed the American Genetics Association in 1913.20

In 1910, Charles Davenport established the Eugenics Record Office (E.R.O.) at Cold Spring Harbor, New York, with the financial support of wealthy philanthropist

Mrs. E.H. Harriman.21 The E.R.O. sponsored eugenic

research and trained field workers to collect data all over the U.S.; in 1921 it became part of the Department of Genetics of the Carnegie Institution. The eugenics movement was further bolstered by university professors, doctors, psychologists, and social workers who jumped on the bandwagon to warn the nation of the importance of "race hygiene." Henry Goddard, psychologist and director of the Vineland (N.J.) Training School for Feeble-Minded Boys and Girls, introduced the Binet-Simon intelligence tests to the U.S. in 1908.22 Goddard's research led him not only to classify the mentally deficient, but also to conclude that feeblemindedness was inherited. In addition, Goddard's surveys of inmates of prisons, reformatories, and homes for wayward girls led him to conclude that mental deficiency was the root of antisocial behavior, especially crime and immorality. Noting the feeble-minded population, other writers followed up Goddard's research with warnings about the "menace" of the feeble-minded. A typical speech was delivered by Dr. Walter Fernald in 1912 before the Massachusetts Medical Society:

. . . The feebleminded are a parasitic, predatory class, never capable of self-support or of managing their own affairs . . . Feebleminded women are almost invariably immoral and if at large usually . . . give birth to children who are as defective as themselves . . . Every feebleminded person . . . is a potential criminal, needing only the proper environment and opportunity for the development and expression of his criminal tendencies.23

The eugenic movement's successes and publicity came from the work of influential professionals like Davenport and Goddard, rather than from public response to the "menace" of race degeneracy. As Mark Haller points out, eugenics was "primarily a movement of specialists rather than a popular crusade."24 It was through campaigns for eugenic legislation that the American public was exposed to the misguided principles of eugenics.

Although Congress passed the first general immigration statute in 1882, lobbying and expert testimony by eugenicists led to increasingly rigid immigration legislation.25

Capitalizing on the

isolationist sentiment of the post-World War One period, eugenics proponents vigorously lobbied for statutes that would change not only the numbers of immigrants, but their character as well. After Harry Laughlin of the Eugenics Record Office was made the "expert eugenics agent" of the House Committee on


4

Immigration in 1920, Congress adopted the Immigration Act of 1921, which imposed the first absolute numerical limits on immigration into the U.S. The Immigration Act of 1924, which has been called "one of the greatest victories of scientific racism in American history,"26 imposed harsh quotas on immigrants from southern and eastern Europe, since immigrants from these nations were shown (by means of dubious intelligence testing) to have the highest percentage of "mental defectives."

Eugenic legislation was not limited to cutting off the flow of feebleminded into the country, however. Eugenicists sought to prevent the "continuance of the unfit" in the U.S. itself by various methods, including legal restrictions on the marriage of the feebleminded, epileptic, criminal, and so on.27 While acknowledging the usefulness of this method, many eugenicists felt that more needed to be done. Some advocated institutionalizing all of the "unfit," at least in order to segregate them during their reproductive period. This plan apparently enjoyed widespread support among eugenicists, but the high costs and long-term care involved convinced the most influential leaders of the movement that compulsory sterilization would be the best solution.28 With the development of new surgical techniques (the salpingectomy, or cutting and tying of the fallopian tubes, and vasectomy, or cutting and tying of the vas deferens) pioneered in Europe during the 1890s, eugenicists felt they had arrived at the right answer. The operation was cheaper than wholesale segregation, and would enable a mentally defective individual to lead a productive life outside an institution, without the risk of degenerating the nation's "germ-plasm."

Although some programs to castrate "defectives" were carried on in institutions on a small scale and without benefit of law,29 eugenicists first formally presented a bill for compulsory eugenic sterilization to a state legislature in 1897 in Michigan.30 The bill, which provided for sterilization of the feebleminded and certain types of criminals, was defeated. The Pennsylvania legislature twice passed eugenic sterilization bills, in 1905 and in 1921, but the bills were vetoed each time.31 The first success for the eugenics movement came in Indiana in 1907. Dr. Harry Sharp, a surgeon at the reformatory in Jeffersonville, had performed vasectomies on 176 inmates over an eight-year period. Convinced that sterilization was a safe and humane method of eugenic control, Sharp lobbied extensively. As a result, on March 9, 1907, the Indiana legislative passed the first law providing for the sterilization of "confirmed criminals, idiots, imbeciles, and rapists" in state institutions, upon recommendation by a special expert panel.32

By 1925, twenty-three of the forty-eight states had passed at least one eugenic sterilization law.33 However, the wording of the statutes varied widely, with different articulations of the punitive, eugenic, and therapeutic motives behind each law; consequently, different classes of people were subject to each law. Washington's 1909 sterilization statute, for example, addressed primarily rapists and habitual offenders, and so was punitive in nature. The 1921 statute, on the other hand, was eugenic in character, since it focused on the feebleminded, epileptic, insane, and morally degenerate. The result of these differences was a series of litigation setbacks for the eugenics movement. The sterilization laws of seven states were held unconstitutional, on grounds varying from denial of equal protection, violation of due process, or cruel and unusual punishment.34 Some courts, even though they accepted the eugenic purpose behind the law, reasoned that limiting sterilization to inmates of institutions had a discriminatory effect against the inmates, insofar as they belonged to a larger class of mental defectives. Other courts refused to accept the eugenic scheme as truth. The Indiana court, for example, found that the inmate "has no chance to bring experts to show that it should not be performed, nor has to a chance to controvert the scientific question that he is of a class designated in the statute."35 The New Jersey court expressed doubt as to deciding who was "unfit:"

There are other things besides physical or mental disease that may render persons undesirable citizens or might do so in the opinion of a majority of a prevailing legislature. Racial differences, for instance, might afford a basis for such an opinion in communities where the question is unfortunately a permanent and paranoid issue.36

As a response to this series of reversals, Harry Laughlin began to formulate a strategy to litigating eugenic sterilization cases. Laughlin had developed a sense of what judges would and would not accept while serving as "Eugenics Associate" of the Psychopathic Laboratory of the Municipal Court of Chicago. As assistant director of the Eugenics Record Office, Laughlin used E.R.O. resources to publish strategy manuals centering on the legal developments in the campaign for eugenic sterilization. In 1922, Laughlin wrote and published Eugenical Sterilization in the United States, a 502-page collection of state laws, state court decisions, sample briefs, scientific data, and several model eugenic sterilization laws. The book was written for legislators, judges, administrators,


5

and citizens who "in the exercise of their civic rights and duties, desire to take the initiative in reporting for official determination and action, specific cases of obvious family degeneracy."37

The approach advocated by Laughlin defended eugenic sterilization as a matter of critical importance to the survival of the human race. Laughlin eschewed laws with punitive elements in favor of statutes asserting the welfare of society over an individual's liberty. To support his argument that race betterment was a proper rationale for exercising a state's police power, Laughlin used the analogy of quarantine laws that took away personal liberty (in compliance with due process) for the protection of society. Similarly, in Laughlin's view, the "surgical treatment" of compulsory vaccination served as an adequate analogy for the bodily invasion of sterilization. According to Laughlin,

The state, then, must exercise its undoubted right and duty to control human reproduction along the lines of race betterment, and in so doing is fully justified in putting into effect such measures as, in keeping with the Bill of Rights and humane principles, will bring about the desired ends.38

In one of the eugenics movement's few judicial successes prior to Buck, the Michigan Supreme Court bought Laughlin's reasoning. Upholding the state's sterilization law, the court noted "Measured by its injurious effect upon society, what right has any class of citizens to beget children with an inherited tendency to crime, feeblemindedness, idiocy, or imbecility?"39

In view of the setbacks experienced by the eugenics movement, and the uncertain constitutional status of other sterilization statutes, it was clear that a test case was needed to determine the validity of eugenic sterilization laws. Ironically enough, that test case would come from Virginia, a state which had resisted the first wave of sterilization laws by rejecting a bill introduced in 1910. By 1924, though, a carefully drawn statute became the law in Virginia.40 The law authorizing sterilization noted that "heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy and crime."41 It also stated that the "many defective persons" under the state's care "would likely become by the propagation of their kind a menace to society" if discharged or paroled, but that these same individuals "might properly and safely be discharged or paroled" if rendered incapable of reproducing.42 The Virginia sterilization statute also provided for various procedural safeguards. Before the superintendent of a state mental institution could sterilize a patient, it was necessary to petition a special

board of directors. The inmate and his legal guardian had to given notice of the petition, as well as the opportunity of an evidentiary hearing before the board. In addition, if a patient decided to appeal a sterilization order, the sterilization order would be stayed during the appeals stage. Nevertheless, many eugenicists worried that Virginia's law, like many other sterilization statutes, contained a possible violation of the equal protection guarantee in that sterilization was limited to inmates of state institutions.

The test case that presented itself to eugenics proponents arrived in June, 1924, with the commitment of a 17 year-old white girl named Carrie Buck to the State Colony for Epileptics and Feebleminded in Lynchburg, Virginia. Carrie's mother Emma was already an inmate of the Colony. Carrie herself had just given birth to an illegitimate child, presenting Dr. A.S. Priddy (the Colony superintendent) with a perfect opportunity to test the new sterilization statute. The ideal patient for such a test case would be one suffering from hereditary feeblemindedness, who exhibited antisocial or immoral behavior, and who would probably bear feebleminded children herself. Carrie Buck appeared to fit the first criterion, and the fact that she had been committed for promiscuity that resulted in pregnancy appeared to point favorably to the remaining two criteria.

Priddy petitioned for and received the order to sterilize Carrie Buck on Sept. 10, 1924.43 After Carrie's guardian appealed the order, Priddy retained Aubrey Strode, a prominent lawyer who wrote the sterilization statute, to represent the Colony during the appellate stage. I.P. Whitehead, a good friend of Strode's, served as counsel for Carrie Buck. At the circuit court level, Strode presented the deposition testimony of Harry Laughlin himself. Despite the fact that Laughlin never met or examined Carrie, his "expert" opinion was that she was a "lowgrade moron" with a family history indicating "a very high frequency of feeble-minded persons" and a child "supposed to be a mental defective."44 Another witness, Dr. A.H. Estabrook of the Carnegie Institution, merely concluded that, "The blood is bad."45 Dr. A.S. DeJarnette, superintendent at another Virginia asylum, used Mendelian ratios to explain the hereditary nature of feeblemindedness, while Dr. Priddy himself testified that the "generally accepted theory of the laws of heredity" proved that Carrie would produce socially inadequate offspring.46

I.P. Whitehead never challenged any of this, and on April 13, 1925, Judge Gordon of the Circuit Court of Amherst County upheld the sterilization order.47

At this point, one must begin to question the adversarial character of the proceedings. Indeed, Paul Lombardo has compellingly argued that the Buck case was in fact a friendly suit.48 Lombardo's analysis of


6

the correspondence of and among the principals in the case seems to support this. Whitehead was a longtime friend and associate of Priddy and Strode who was active in the lobbying for and planning of Virginia's eugenic sterilization program. According to Lombardo, "the involvement of Irving Whitehead as counsel to Carrie Buck amounted to no less than collusion among Whitehead, Strode, and Priddy to insure that the sterilization law would be upheld."49

Lombardo's research explains more than just the ineffectiveness of Carrie Buck's counsel. It also explains why factual inconsistencies in the Colony's case were overlooked. Although Strode maintained that Carrie was the daughter of a feebleminded woman, Dr. Priddy admitted in correspondence to Harry Laughlin that it wasn't even clear that she was a "Buck" and that there was some doubt as to Carrie's maternal stock.50 As far as Carrie herself is concerned, Strode's case relied on the fact she was a mental defective committed by her foster parent (a Mrs. Dobbs) for promiscuous behavior which resulted in pregnancy. Lombardo's research of Carrie's school records indicates that she was quite normal.51 More importantly, other evidence (including an interview with Carrie Buck herself) shows that Carrie became pregnant after being raped by Mrs. Dobbs' nephew.52 For the sake of the family reputation, Mrs. Dobbs (who was never called as a witness) had Carrie committed. As far as the "evidence" that Carrie's child (Vivian) was mentally defective, the sole basis for that conclusion was a nurse's observation that the baby was not as "responsive" as her own child.53

As Stephen Jay Gould's research points out, Vivian's school records indicate that she was a bright child, who earned a spot on her school's honor roll before dying of a childhood illness.54

Despite the complete lack of evidence to support the Colony's sweeping conclusions concerning Carrie's status as a potential parent of mentally defective offspring, the case proceeded to the Virginia Supreme Court of Appeals. Since Dr. Priddy had died in the interim period, his successor, Dr. John Bell, took up the cause. Although Whitehead argued that the sterilization statute was unconstitutional on due process, equal protection, and cruel and unusual punishment grounds, he never challenged the eugenic view of heredity presented by Aubrey Strode's witnesses. In an opinion delivered by Judge Jesse West on November 12, 1925, the Court found that "Carrie Buck, by the laws of heredity, is the probable potential parent of socially inadequate offspring, likewise affected as she is.55 The Court also ruled that the Virginia statute satisfied due process requirements and did not constitute cruel and unusual punishment. Finally, the Court deferred to the wisdom of the state

legislature, agreeing that while the sterilization law classified individuals, that classification could be viewed as "reasonable" and not violative of equal protection.56

After being affirmed by Virginia's highest court, the case of Buck v. Bell went to the U.S. Supreme Court on April 22, 1927.57 I.P. Whitehead reiterated his arguments that the statute violated due process and equal protection, and warned that upholding the law would inaugurate a "reign of doctors" and remove any limitations on a state's power "to rid itself of those citizens deemed undesirable."58 Not only did Whitehead fail to challenge the alleged benefits of limiting the procreative rights of the feebleminded, he even conceded the state's right to do so. Whitehead merely stated that incarceration already served the state's goals. At no time did Whitehead question the eugenic basis of the sterilization law. Aubrey Strode argued that the eugenical measure was not only a valid exercise of the state's police power, but one which would actually enhance Carrie Buck's liberty. He maintained that sterilizing Carrie would "restore her to the liberty, freedom and happiness which thereafter she might safely be allowed to find outside of institutional walls."59 Strode saw the law as justified not only by society's duty "to protect its afflicted members from themselves and itself from them," but also by "its power and duty as to the coming generation in respect of the multiplication of socially inadequate defectives."60

On May 2, 1927, the U.S. Supreme Court voted eight to one in favor of upholding the Virginia sterilization law.61 Justice Oliver Wendell Holmes, Jr., then 86 years old and in his twilight years on the Court, wrote the opinion of the Court. Holmes began by summarizing the Virginia statute, observing that its guiding purpose was to eliminate the menace to society posed by mental defectives by rendering them incapable of procreation. Next, Holmes outlined the various procedural protections of the law, and concluded that since "every step in this case was taken in scrupulous compliance with the statute and after months of observation, there is no doubt" that Carrie Buck received due process of law.62 Holmes then continues, expressing what may seem to be characteristic judicial restraint in deferring to the legislature: "In view of the general declarations of the legislature and the specific findings of the court obviously we cannot say as a matter of law that the grounds do not exist, and if they exist they justify the result."63

Most commentators agree that in view of the seriousness of the claims which Virginia rested on its "scientific beliefs," Holmes should not have simply accepted this legislative finding of fact. The Court


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should have considered whether there was a reasonable basis for belief in the facts upon which the legislative result was based. Since constitutionally protected interests were involved (due process and equal protection), legislation with considerable impact on such interests should have been more closely examined. In view of the importance placed by the Virginia legislature (and later counsel for the Colony) on hereditary theory and other "scientific" findings, the Court should have examined these findings more closely. Questions like "would the means chosen (sterilization) achieve the desired purpose (improving society)?" and "are there less drastic measures available to achieve this purpose?" should have been raised.

After disposing of the due process claim, Holmes proceeded to the real basis of his opinion:

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. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.64

This is a far cry from Holmes' usual detached style of merely upholding a given statute by refusing to substitute his wisdom for that of that of the legislature. By making an analogy to the demands of wartime, Holmes tries to establish the state's right to demand anything short of life in peacetime. As other commentators have observed, this was not a typical Holmes opinion, in which he might have dryly discussed previous holdings on the state police power.65 Justice Holmes, as we will see, was already predisposed to eugenic views. As a result, his reference to "being swamped with incompetence" echoes fears of race degeneration and a society overrun by rapidly multiplying members of the "unfit." Posing the dramatic alternative of crime or sterilization, Holmes reflects the popular eugenicist belief in the hereditary nature of criminal tendencies.

Justice Holmes also adopted Harry Laughlin's use of the compulsory vaccination analogy, as an example

of an invasion of the body demanded by the welfare of society. Holmes evidently did not feel compelled to examine his logic more closely. Preventing smallpox could hardly be equated with preventing children; vaccination gives the individual freedom from disease, while sterilization restricts his or her freedom to procreate. There was also a substantial difference in the compulsory nature of the two health measures; while Carrie Buck had no option but sterilization, the Massachusetts Supreme Court had said,

If a person should deem it important that vaccination should not be performed in his case, and the authorities should think it otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5.66

Holmes' brutal flourish "Three generations of imbeciles are enough," is one of his more frequently-quoted remarks. Yet it betrays a lack of factual knowledge. First of all, even the unreliable eugenic classification of Carrie Buck (who was promoted to the sixth grade before being withdrawn from school) and her mother Emma portrayed them as a "middle-grade moron" (Carrie supposedly had a mental age of nine) and a "low-grade moron" (with a mental age under eight), respectively.67 On this Stanford Revision of the Binet-Simon intelligence scale, "imbeciles" were ranked below morons. In fact, this same intelligence test, administered to all Army draftees in World War I, showed that 47.3% of white soldiers and 80% of black soldiers had a mental age of twelve or under.68 Although the test fell into disrepute, these results couldn't have mustered much support for Holmes' argument about the public welfare calling upon "the best citizens" in wartime. Moreover, Holmes' "three generations" argument ignores the lack of evidence pointing to subnormal intelligence on the part of Carrie's daughter.

Holmes' closing remarks brushed aside the equal protection argument by saying that equality of sterilization would steadily increase as asylum openings developed:

Of course so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.69

This answer to the equal protection theory is problematic, to say the least. Earlier Holmes had stated that the alternative to the law was starvation or


8

execution for crime due to imbecility. Yet confinement would preclude either of these; at worst there seems to be the alternative of crime (if one accepts Holmes' belief in innate criminal tendencies) or confinement. Not only does Holmes assume that the "unfit" pose such a numerical threat that confining them in institutions would "sap the strength" of the state, but he ignores the fact that releasing the newly-sterilized does not render them free of criminal tendencies.

Despite the faulty reasoning in Holmes' opinion the Supreme Court endorsement of eugenic sterilization stood. Carrie Buck was sterilized on October 19, 1927; she left the State Colony shortly thereafter.70 In the wake of the Supreme Court's decision, twenty states passed eugenic sterilization statutes in the next ten years; most of these laws were closely patterned after Virginia's law.71

These laws sanctioned sterilization operations on at least 60,000 Americans; as Mark Haller points out, the national sterilization rate climbed from 2 cases per hundred thousand people in the 1920s to 20 cases per hundred thousand by the end of the 1930s.72

The Virginia law alone authorized the sterilization of over 8,300 inmates of state mental institutions between 1927 and 1972; it was finally repealed in 1981.

The Court's decision in Buck v. Bell had a clear judicial impact. In 1928, the Supreme Court of Kansas cited Buck as precluding the argument that eugenic sterilization violated due process.73 Three years later, the Idaho Supreme Court wouldn't even allow itself a doubt as to the validity of the eugenic theory:

. . . [There is] no doubt in our minds that heredity plays a controlling part in the blight of feeblemindedness. If there be any natural right for natively mental defective to beget children, that right must give way to the police power of the state in protecting the common welfare.74

It wasn't until the 1942 case of Skinner v. Oklahoma that the U.S. Supreme Court again considered a sterilization law.75

This time, less deference was shown to the legislature, as a unanimous Court invalidated an Oklahoma statute authorizing the sterilization of habitual criminals. However, Buck v. Bell has never been overruled.

The response by eugenicists to the Buck decision was predictable. Harry Laughlin noted,

The influence of this decision is wide-spread, because - among other things - it will encourage eugenical research in its efforts to learn more about human heredity and better how to predict quality of offspring from the

analysis of traits of the near-kin; it will also direct the attention of the American people, and through them of their legislative and administrative officers, toward the possibility of preventing reproduction by family-stocks which are demonstrably degenerate in hereditary qualities.76

The Eugenics Review applauded the "opinion of great brevity but extreme clarity," and even noted that there was a hereditarian explanation for such a significant decision since Mr. Justice Holmes was "the distinguished son of the distinguished physician, Oliver Wendell Holmes."77 The article discussed the case and the Court's opinion, concluding that "the highest tribunal of the land had now determined once and for all time that society has the right to protect itself against the procreation of those who will become a burden and a public charge."78 According to the Eugenics Review, the Supreme Court's decision would prove "of vital interest to every physician in this country" as well as to "all persons who are interested in the problems of eugenics and the betterment of the race."79

This is not to say that Buck v. Bell was hailed by all. Justice Holmes' own correspondence indicates a strong negative response to the Court's decision. His letters to Harold Laski refer to "the religious" being "astir",80 and to "cranks" calling him a "monster" who "might expect the judgment of an outraged God."81

Although the eugenics movement largely died out in the 1930s (due to scientific advances in the field of genetics and growing disenchantment with the eugenics legislation and "racial purity" beliefs being espoused in Nazi Germany), scholars today describe Buck v. Bell as the peak of public acceptance of eugenical theory. Other writers maintain that "with the eugenics movement at its height in 1927 the Court was its prisoner,"82 that the evidence for eugenics was "too strong for the Court to resist."83 In reality, there was no such public outcry in support of eugenics. In Virginia, neither the passage of the sterilization statute itself nor the U.S. Supreme Court's decision merited mention by the state's principal newspapers. Nationwide, the New York Times ran a small item about the Court's decision on page nineteen.84 The "wisdom" of eugenics was not accepted by any means, but rather was a matter of considerable public debate. A typical article, written by Clarence Darrow in 1926, warned that if a state was granted eugenic authority, "those in power would inevitably direct human breeding in their own interests."85

Just as the Court's decision cannot be attributed to any public clamor for eugenic sterilization, it would also be incorrect to suggest that the Supreme Court


9

bowed to legal precedents and discussion. First of all, the clear trend (in seven of the eight cases to try the validity of eugenic sterilization laws prior to Buck) was to rule such statutes unconstitutional.86 Moreover, eugenic sterilization statutes were the object of sharply critical attacks in the legal literature. Writing in the Journal of the American Institute of criminal Law and Criminology in 1913, prominent New York attorney Charles A. Boston began by restating the usual constitutional arguments against such laws - equal protection, due process, and cruel and unusual punishment.87 Boston went on to charge that legislatures had "accepted as established fact, the finest shading in the laws of heredity, which are not yet established as a fact in their very broadest outlines."88 He argued that eugenic sterilization laws should be "left behind in the cast-off junk of ignorant efforts, with which the past is filled."89

In addition to being challenged by members of the public and the legal community, many eugenic tenets had been repudiated by 1927 by the rest of the scientific community.90 As genetic research progressed in the 1920s, scientists realized that feeblemindedness was not simply the result of Mendelian ratios, and that social adequacy could not possibly be measured by a single characteristic of an individuals overall personality. Scientists had already begun to disassociate themselves from the eugenics movement, and even hardcore eugenicists like Walter Fernald and Henry Goddard, whose early work did much to advance eugenic social policy, became convinced of their errors and recanted. As one eugenicist pointed out in 1923,

It is clear that the apparently final conclusions expressed some years back are no longer tenable. The problem is a vastly more complex one than the popular heredity chart of not so long ago made it. Nor are we in a position at present writing to form definite conclusions as to the degree of social menace that resides in the marriage and parenthood of so-called feebleminded persons.91

In fact, as Paul Lombardo points out, sterilization and the eugenic argument supporting it had been condemned in a publication of the State Board of Public Welfare in Virginia in September, 1926.92

Yet this critical view, from an official body in the same state that had passed the eugenic sterilization measure, was ignored.

The Supreme Court's opinion in Buck v. Bell, contrary to the claims of other commentators, cannot be attributed to public support for eugenics, legal

precedent, or the scientific validity of eugenic theory. It has been demonstrated that eugenics owed its success to the influence of lobbyists rather than overwhelming public support. It has also been shown that by 1927, eugenic sterilization statutes were falling into disrepute among a growing number of lawyers and jurists. Moreover, by 1927 it was becoming clear even to many eugenicists that theirs was a crusade based on crude, outdated scientific principles and animated only a misguided sense of moral purpose. Although it becomes easier to understand the factual inconsistencies in the case when one considers Irving Whitehead's true purpose, the reason for the Court's particularly forceful opinion is less clear. As Part II of this paper demonstrates, the result reached by the Court and the manner in which that decision was expressed can only be understood by examining the role played by Justice Oliver Wendell Holmes, Jr.

II.

As other writers have suggested, the inadequacies of Justice Holmes' reasoning in the Buck v. Bell opinion can be attributed to the fact that he was writing from belief, and not merely upholding a form of social reform legislation for which he reserved a healthy amount of skepticism. However, the extent and the sources of Holmes' belief in eugenics remain unexplored. The shocking, brutal tone of Holmes' opinion conjures up images of a society "swamped" by the menace of mental defectives breeding out of control and committing crimes or starving. In order to prevent them from sapping the state's strength, "sacrifices" must be made, even at the cost of bodily mutilation or the loss of personal liberty.

As brutal as this language was, Holmes' correspondence indicates that he unwillingly softened its tone for the final draft of the Buck opinion. In a letter to Harold Laski, Holmes complained,

I am amused (between ourselves) at some of the rhetorical changes suggested, when I purposely used short and rather brutal words for an antithesis . . . I am pretty accommodating in cutting out every thought that I think important, but a man must be allowed his own style. At times I have gone too far in yielding my own views as to the reason for the decision . . . this time, though I had said, Never again, I did the same things in a milder form.93

Examination of Justice Holmes' original draft opinion shows that the only apparent change was to eliminate the word "kill" in the phrase "kill degenerate offspring for crimes" and substitute the word "execute."94


10

Charles Evans Hughes' biographer points out that this was not an isolated incident: "Fearful of hidden implications, the brethren frequently insisted on stripping Holmes' opinions of their more fanciful images and seemingly reckless phrases."95

The language reflects the fact that Buck v. Bell was not an ordinary case of Justice Holmes, but rather was a marked departure from his usual style of judicial detachment. Eugenics was an important issue for Holmes. Writing to Lewis Einstein, he described the Buck opinion as one that "gave me pleasure, establishing the constitutionality of a law permitting the sterilization of imbeciles."96 Writing to Harold Laski, Holmes referred to "constitutionality of a Virginia act for the sterilizing of imbeciles" as "a burning theme."97 In another letter to Harold Laski, Holmes states that in delivering the decision in Buck, he "felt that I was getting near to the first principle of real reform. I say merely getting near. I don't mean that the surgeon's knife is the ultimate symbol."98 Few if any of the many vital issues Holmes confronted during his lengthy tenure on the Court merit this type of attention in his correspondence. Using eugenic sterilization to prevent the unfit from "swamping" society was a "burning theme," "the first principle of real reform," and a source of "pleasure." The same Justice Holmes who displayed skepticism of economic reforms and social legislation (but would uphold the legislature's right to experiment with them anyhow) saw eugenic sterilization as an important social tool that would save the country from degeneration.

From among those writers who have acknowledged Holmes' eugenic beliefs, there has yet to emerge a detailed analysis of when these beliefs became fixed in Holmes' ideology, or the reasons why, or how these beliefs manifested themselves in Holmes' work prior to the Buck v. Bell opinion. As far as the first question - "when" - is concerned, Holmes addressed the issue in some of his unpublished correspondence. Writing in 1912 to Lady Leslie Scott, Holmes said:

As to eugenics I don't exactly know what your government could undertake if they wanted to tackle it. But, as your probably know, I have thought from before the days of Galton that it was the true beginning, theoretically, of all improvement. The folly, to my mind, of socialism is that it begins with property instead of with life.99

Clearly, Justice Holmes was convinced of the benefits of eugenic policies even before Galton's theories became intellectually fashionable.

Why Holmes believed so fervently in eugenics is a matter about which scholars can only speculate. As much as Holmes was convinced of hereditarian theory, he apparently came to this belief as the result of the environment in which he came to maturity. Holmes certainly could have seen himself as living proof of what eugenicists assumed. He was born into a socially and intellectually prominent Boston Brahmin family, son of the renowned poet and physician, Oliver Wendell Holmes, Sr. The younger Holmes was exposed to many of Cambridge's leading intellectual figures. Not the least of these was Holmes' father, who had an abiding interest in hereditarian theory. In an essay entitled "Crime and Automatism, " Holmes, Sr. discussed Galton's theory that "genius and talent are inherited" and applied it to the inheritance of criminal tendencies.100

Dr. Holmes concluded that "in most cases crime can be shown to run in the blood."101 Perhaps more important in a general sense, the younger Holmes received his Harvard education at a time when Darwin's theory of evolution was becoming popular in America. As Holmes commented to philosopher Morris Cohen regarding his early intellectual influence. "The scientific way of looking at the world . . . was in the air."102

In the same year (1861) that Holmes received his Harvard degree, he enlisted in what became the 20th Massachusetts Infantry. The Civil War, for Holmes, proved to be a living illustration of Darwinian principles of struggle and survival. His unit participated in many of the war's major actions, suffering almost 75% casualties. Holmes himself was wounded five times, three of which were quite serious. At Ball's Bluff in 1861 he took a musket ball in the chest, just missing the heart and lungs. At the bloody Battle of Antietam in 1862, Holmes was shot though the neck. In 1863 he was wounded a third time, as shrapnel tore ligaments and splintered bone in his heel during the Battle of Fredericksburg. In between campaigns, he endured scurvy, body lice, and dysentery like many other soldiers. In July of 1864, Holmes (who had risen from lieutenant to lieutenant-colonel) was finally too weak to perform his duties and was mustered out of the service.

Although Mark DeWolfe Howe contended that "[w]ar did not make any fundamental change in Holmes' character,"103 Francis Biddle strikes closer to the mark when he observes that "the impact and disillusionment of war was to haunt him and shape his character for the rest of his life."104 In wartime, where success was equal to survival, Holmes came to view himself as a survivor, one of the "fittest." Holmes saw Harvard friends, his social and intellectual equals, killed all around him. Yet Holmes struggled and survived, even while finding it "queer that I stand this


11

exposure and hard work better than many a stout fellow who looks more enduring than I."105 The Civil War, the searing experience of Holmes's life, hammered into him the lesson that all individual existence is a struggle even as it confronted him with the reality that a state will do everything possible to preserve itself - even to the point of sacrificing its best young men.106

As a result of these wartime experiences, military metaphors and battle imagery permeated virtually every aspect of Holmes' thought. Life was a "campaign", and the dominance of force behind state sovereignty was equated to "marching a conscript with bayonets behind to die for a cause he doesn't believe in." He would "fire off" an opinion and refer to the seemingly endless array of cases facing him by saying "when you have taken one trench there is always a new firing line beyond."107 Holmes' correspondence reveals that he even noted the anniversaries of his wounds: for example, an October 21, 1895 letter to Sir Frederick Pollock begins with a reference to being shot at Ball's Bluff while a Sept. 17, 1919 letter to James Bryce opens with the reminder "Antietam 57 years ago today."108

Holmes alternated between looking back on the Civil War as a struggle for survival in which he - by virtue of living - emerged as one of the fittest, and viewing the war as a horrible form of selection which took the lives of many of the best soldiers (including many of Holmes' friends). For Holmes, war may have been a necessary element of the "struggle for life," but it was one which wasted a great deal of the "germ-plasm" that might have otherwise improved the race. Holmes agreed with Frederick Pollock, who stated in a 1920 letter to the justice:

My complaint against war is not that it kills men but that is kills the wrong ones, taking an undue proportion of the strong and adventurous and leaving too many weaklings and shirkers, thus working a perverse artificial selection of those who are least fitted to adorn or improve the commonwealth.109

It was this observation - that men fit for military service were of a "better type" than those who were unfit and unwilling to serve, and could therefore benefit the human race in the long run - that lay at the root of Holmes' hope for eugenics. As the justice stated in answering Pollock's letter,

Your remark that the men fit for military service on the whole are the better type, non obstant the possibility that a weakling may

have genius, is precisely the reflection that makes me believe that it would be possible to breed a race.110

In addition to being profoundly influenced by his intellectual background and civil War experiences, Holmes was also motivated by many of the "race-suicide" fears of his day. 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. In his 1895 Memorial Day address "The Soldier's Faith," Holmes rejoiced at the notion of the "sword-slashed faces" of Heidelberg students and the dangerous sport of polo. In Holmes' view, such activities toughened up the best members of society:

If once in a while in our rough riding a neck is broken, I regard it, not as a waste, but as a price well paid for the breeding of a race fit for headship and command.111

In a 1902 speech in Ipswich, Holmes returned to this theme of competition from other racial "stocks", saying "It may be that we are to be replaced by other races that come here with other traditions."112 Addressing the Harvard Law School Association of New York in 1913, Holmes declared that "competition from new races will cut deeper than working men's disputes and will test whether we can hang together and fight.113 The only hope, Holmes felt, was in breeding a race through eugenics:

I do not pin my dreams for the future to my country or even to my race. I think it possible that civilization somehow will last as long as I care to look ahead perhaps with smaller numbers, but perhaps also bred to greatness and splendor by science . . . And so beyond the vision of battling races and an impoverished earth catch a dreaming glimpse of peace.114

Although one is tempted to discount such statements as mere off-the-bench musings by Justice Holmes, it is important to remember that the jurist's non-legal work only concerned topics of great significance to him. As he told James Bryce, "I rarely have strayed beyond the law - only indicating a few fundamental beliefs in a very brief essay or two or an occasional speech."115 The earliest of these essays indicating a eugenicist tone to Holmes' thinking can be found in his 1873 American Law Review comment on a gas-stokers' strike in England. Toward the end of his article, Holmes questions the idealism of legislation which purports to


12

be for "the greatest good of the greatest number" of the population:

Why should the greatest num ber be preferred? Why not the greatest good o f the most intelligent and the most h ighly developed? T he greatest g ood of a m inority of our generation may be the greatest good of the greatest number in the long run.116

According to Holm es, preventing the b reeding of the unfit would have to be at the heart of any meaningful political reform: "Co mmunism would no m ore get ri d of the difficulty than any other system, unless it limited or put a stop to the propagation of the species." 117 Holmes added that "it may be dou bted whether th at solution would not be as disagreeable as any other."118 In other words, Holmes ad vocated not only preference of the m ost valuable me mbers of s ociety, but a lso measures that would cut down the num bers of the least valuable members as well - 54 y ears before Buck v. Bell.

Holmes continually retur ned to the notion of eugenics in his essay s. In a 1915 article in the Illinois Law Review that Holmes considered important enough to include in a volume of his collected work, the justice declared eugenic values to be the key to bringing about meaningful change in society:

I believe that the wholesale social regeneration which so many n ow seem to expect, if it can be helped by conscious, co-ordinated h uman effort, cannot be affected appreciably by ti nkering with the institution of propert y, but onl y b y t aking in han d life and trying to build a race. That would be my starting point for an ideal for the law.119

Justice Hol mes returned to this t heme in his 1923 introduction t o a book entitled The Rational Basis of Legal Institutions . Holmes de clared that it was pointless for society to bother altering property relations when the even more pressing problem of t he rapidly-multiplying unfit existed:

The notion that we can s ecure an eco nomic paradise by changes in property alone see ms to me twad dle. I can understand better legislation that aims to im prove the quality than to increase the quantit y of the population.120

Holmes continued in a simila r vein, reflecting his fear of race dege neration as he de monstrated approval of

legal measures, such as child labor and maximum hour rules, that would combat such deterioration:

I can understand say ing, whatever the costs, so far as it may be, we will keep c ertain stains out of our blo od. If before the English factory acts the race was running down physically I can understand taking the economic risk of passing those acts.121

Justice Hol mes also alluded briefly to this fear in his 1922 dissent ing opi nion in Adkins v. Children' s Hospital, in which he wanted to up hold a m inimum-wage law for women since it would "remove conditions leading to ill health, imm orality and the deterioration of the race."122

Holmes' legal essays and speeches, it can be seen, reveal much of the race degeneration concerns that manifested the mselves in the Buck v. Bell opinio n, especially in the worries of society being "swa mped" within competence. But the rapid breeding of the unfit was only part of Holm es' concern. The fact that the se mental defec tives would pass on hereditary crim inal tendencies to future gene rations, a concept th at appeared in Buck as well, was also assumed in Holmes' legal writings. For example, in his 1897 essay "The Path of the Law," Holmes states:

If the ty pical criminal is a degenerate, bound to swindle or to murder by a seate d and organic nece ssity as that which makes the rattlesnake bi te, it is idle t o talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved or frightened out of his structural reaction.123

Holmes' personal correspondence indicates a preoccupation with the twin goals o f the eugeni cs movement: "buildi ng" a b etter race through selective breeding of the "fittest" members of society , whil e preventing race degener ation by preventing the unfit from procreating. Writing to Lewis Einstein in 1910 on the subje ct of populat ion, Holm es felt that "with less quantity we might think m ore of quality ."124 A 1912 letter to Franklin Ford expressed Holmes' opinion that reform movements, in order to be meaningful, should consi der eugenic measures. He wrote "I think that if socialism ever is to be a serious thing . . . it must begin not with propert y but with life, and that as it is now every social im provement is expended in an increase of births." 125 A l etter to Lewis Einstein five years later e xpressed the sa me sentiment in a more brutal fashion: "I have too profound a contempt for the bases of all socialisms not prepared to begin with life


13

rather than with property and to kill everyone below the standard."126

This last letter points toward an intriguing aspect of Holmes' personal correspondence. Justice Holmes' references to breeding a new race and killing off the unfit increase in both frequency and fervor in the decade or so prior to the Buck v. Bell case. Interestingly enough, Holmes' steadily mounting concerns over eugenic goals coincide with his first reading of Thomas Malthus' work An Essay on the Principle of Population (1798).127 Holmes' famed Black Book of his yearly readings indicates that he first read this treatise on the dangers of overpopulation during August of 1914. Justice Holmes' interest in the book was deep enough that he kept two copies of the book, one at his residence in Washington, D.C. and another at his summer home in Massachusetts.

Malthus' ideas had a profound impact on Justice Holmes; the jurist proclaimed himself "a devout Malthusian" in one letter.128 Elsewhere, Holmes declared, "I look at men through Malthus' glasses - as like flies - here swept away by a pestilence - there multiplying unduly and paying for it."129 Holmes had an intellectual respect for Malthus that bordered on reverence; at one point he refers to him as "Saint Malthus,"130 and at another he laments, "I wish his teaching in its substance were more taken to heart.131 According to Holmes, economic reforms were mere "humbugs" which lived on in the present, fallacies which Malthus "had ripped the guts out," "exploded," or "busted' long ago.132 The only true solution to the world's ills was to take immediate action to prevent the continuance of the less eugenically worthy members of the population. It is easy to conceive of Justice Holmes - the old soldier who had witnessed firsthand the carnage of the Civil War, and the childless Boston Brahmin who observed incoming waves of immigrants with "an old man's apprehensions" for the future of Anglo-Saxon "stock" - reading Malthus against the backdrop of the First World War (and later, the increasing momentum of the eugenics movement) and deciding that there was only one possible way for society to consciously take its "destiny" in its hands. As he observed in a 1922 letter to Harold Laski, "all society rests on the death of men." He added, "if you don't kill 'em one way you kill 'em another - or prevent their being born. Is not the present time an illustration of Malthus?"133

Justice Holmes' impatience with economic reforms intended to improve society continued to mount, and his correspondence during the pre-Buck period reflect this growing concern as well as his belief in a eugenic solution. After observing that "every society rests on the death of men," Holmes declared to Pollock,

I should be glad . . . if it could be arranged that the death should precede life by provisions for a selected race, but we shall not live to see that. However, I dare say that all this is in the air.134

Holmes alternated between this "positive eugenics" belief of breeding a select race, and the "negative eugenics" of preventing the unfit from propagating in his letters. As he wrote to Chinese legal scholar John C.H. Wu,

I believe that, Malthus was right in his fundamental notion, and that is as far as we have got or are likely to get in my day. Every society is founded on the death of men . . . I think it a manifest humbug to suppose that even relative universal bliss is to be reached by tinkering with property or changing forms of government so long as every social improvement is expended in increased and unchecked propagation. I shall think socialism begins to be entitled to serious treatment when and not before it takes life in hand and prevents the continuance of the unfit.135

For Holmes, moral deliberations were outweighed by the Malthusian scheme he perceived as crucial to society's future. He commented to Laski, "As it seems to me that all society has rested on the death of men and must rest on that or on the prevention of the lives of a good many, I naturally shrink from the moral tone. In short, I believe in Malthus - in the broad - not bothering about details."136 Holmes considered social welfare reforms futile in the face of ever-multiplying numbers of society's unfit. Unlike the long-term nature of most reforms, the benefits of eugenic sterilization could be seen in the very next generation. The frustration Holmes felt at economic and social reforms that failed to "take life in hand" is evident in another letter to Laski:

One can change institutions by a fiat but populations only by slow degrees and as I don't believe in millennia and still less in the possibility of attaining one by tinkering with property while propagation is free and we do all we can to keep the products, however bad, alive, I listen with some skepticism to plans for fundamental amelioration. I should expect more from systematic prevention of the survival of the unfit.137


14

In short, one can easily see the increasingly eugenicist tone of Holmes' off-the-bench writings and personal correspondence. While at first he didn't expect his ideas about "breeding a select race" and preventing the continuance of the unfit" to be popular in his day, Holmes later observed that the eugenic mood was "in the air." When Buck v. Bell arrived on the Supreme Court's docket in 1927, after years of Holmes' increasingly evident concern over the degeneration of the race, Justice Holmes recognized an opportunity to give his eugenicist convictions the force of law. Holmes did not write his opinion from a judicially detached standpoint, one of deference to the legislature. Instead, he wrote with impassioned belief, never questioning the facts of the case or the pseudo-scientific underpinnings of the sterilization law itself. The 86 year-old Civil War veteran, who had seen wars kill off many of the "best citizens" in the name of preserving society, saw no harm in demanding a "lesser sacrifice" from mental defectives who sapped the strength of the State and threatened to swamp it with their "degenerate offspring." Holmes welcomed the opportunity to sustain legislation on a "burning theme" that he felt offered the promise of "real reform;" moreover, he derived pleasure from doing so. In his last years on the Court (he retired in 1931 and died in 1935), Justice Holmes was able to briefly grant legitimacy to a eugenics movement reeling from judicial defeats and the disapproval of the scientific community. In order to achieve this, Justice Holmes saw no need to closely analyze the constitutional arguments raised or cite more than one case. For Oliver Wendell Holmes, Jr., belief was enough in the spring of 1927.

CONCLUSION A proper understanding of Justice Holmes' role in

Buck v. Bell is crucial to the ongoing society efforts to place Holmes in historical perspective. Additionally, both the nature of the case itself and Justice Holmes' involvement in it show that certain troubling questions continue to plague legal scholars. This is especially true at a time when two of the most important subjects discussed by modern commentators are the state's effort to limit an individual's reproductive freedom and the debate over judicial activism (centering on how to achieve ideological neutrality of judges). Despite his own philosophy of judicial detachment, Oliver Wendell Holmes, Jr. found justification for his position in Buck v. Bell in personal convictions rather than in deference to legislative will. Holmes' intellectual background, Civil War experiences, reading, legal writings, speeches, and correspondence enable legal historians to track these convictions.

At a time when both its popular support and the scientific validity of its views were being seriously

questioned, the eugenics movement found an ally in Justice Holmes. The intellectual and emotional predispositions of Holmes prevented him from seriously considering any other possible outcome in Buck v. Bell; belief, rather than logic, facts, or precedent, dictated the result. To borrow Justice Holmes' own words, the opinion in Buck v. Bell was not a response to the "felt necessities of the time," but instead was a result of the "prejudices which judges share with their fellow-men."138


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NOTES

1. "Law and the Court," in O.W. Holmes, Speeches 101 (1934).

2. F. Frankfurter, Mr. Justice Holmes and the Supreme Court 21 (1938).

3. Id. at 73.

4. See generally, J. Browning, Justice Red in Tooth and Claw: Social Darwinism in the Life and Work of Justice Oliver Wendell Holmes, Jr. (unpublished honors thesis, Rutgers University, 1986).

5. See Holmes-Pollock Letters 163 (M. Howe ed. 1941).

6. To the extent possible, I have endeavored to use contemporary terms such as "imbeciles" and "feebleminded." Given the fact that the standards of judging mentally disabled individuals were questionable at best in light of present medical knowledge, I have tried to use a more neutral term - "mental defectives" - at times.

7. 274 U.S. 200 (1927).

8. See, for example, R. Hofstadter, Social Darwinism in American Thought 164 (rev. ed. 1959); C. Vose, Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900 at 17 (1972); A. Chase, The Legacy of Malthus at 317 (1977).

9. See, for example, Y. Rogat, "Mr. Justice Holmes: A Dissenting Opinion" 15 Stanford L. Rev. 254 at 282 (1963); and M. Dudziak, "Oliver Wendell Holmes as a Eugenic Reformer: Rhetoric in the Writing of Constitutional Law," 71 Iowa L. Rev. 833 (1986). Rogat, in his brief discussion of Buck v. Bell, calls the case "a judicial manifestation of [Holmes'] eugenecist views," but does not elaborate on the source of these views. Similarly, Dudziok's approach is to analyze the rhetorical content of Holmes' opinion in the case without any in-depth examination of the sources of Holmes' ideas.

10. See generally, M. Haller, Eugenics Hereditarian Attitudes in American Thought (1963); D. Kevles, In the Name of Eugenics: Genetics and the Uses of Human Heredity 1985).

11. C. Darwin, The Descent of Man 501 (1871).

12. Ibid.

13. Ibid.

14. Id. at 502.

15. Ibid.

16. Ibid.


16

17. D. Kevles, supra note 10, 13 (1985).

18. H. Laughlin, The Legal Status of Eugenical Sterilization 65 (1930).

19. See generally D. Pickens, Eugenics and the Progressives (1968).

20. M. Haller, supra note 10, at 82.

21. D. Kevles, supra note 17, at 54-55.

22. Id. at 77.

23. S.P. Davies, Social Control of the Feebleminded 56 (1923).


25. See generally, A. Chase, The Legacy of Malthus 291-301 (1977).

26. S.J. Gould, The Mismeasure of Man 232 (1981).

27. K. Ludmerer, Genetics and American Society 8 (1972).

28. D. Pickens, supra note 19, at 93-94.

29. J. Robitscher, Eugenic Sterilization 29 (1973).


31. J. Robitscher, supra note 29, at 31.

32. Act of March 9, 1907, 1907 Ind. Acts ch. 215.

33. Act of April 26, 1909, 1909 Cal. Stats, Ch. 720 (first California sterilization statute); Act of June 13, 1913, Cal. Stats. ch. 363 (second California statute); Act of August 12, 1909, 1909 Conn. Pub. Acts ch. 209; Act of April 28, 1923, 1923 Del. Laws ch. 62; Act of March 13, 1925, 1925 Idaho Sess. Laws ch. 194; Act of March 9, 1907, 1907 Ind. Acts ch. 215; Act of April 10, 1911, 1911 Iowa Acts ch. 129 (first Iowa sterilization statute); Act of April 19, 1913, 1913 Iowa Acts ch. 187 (second Iowa statute); Act of April 16, 1915, 1915 Iowa Acts ch. 202 (third Iowa statute); Act of March 14, 1913, 1913 Kan. Sess. Laws ch. 305 (first Kansas sterilization statue); Act of March 13, 1917, 1917 Kan. Sess. Laws ch. 299 (second Kansas statute); Act of April 11, 1925, 1925 Me. Acts ch. 208; Act of April 1, 1913, 1913 Mich. Pub. acts No. 34 (first Michigan sterilization statue); Act of May 25, 1923, 1923 Mich. Pub. acts No. 285 (second Michigan statue); Act of April 8, 1925, 1925 Minn. Laws ch. 154; Act of March 15, 1923, 1923 Mont. Laws ch. 164; Act of July 8, 1915, 1915 Neb. Laws ch. 237; Act of March 17, 1911, 1911 Nev. Stats. § 28; Act of April 8, 1925, 1925 Minn. Laws ch. 154; Act of March 15, 1923, 1923 Mont. Laws ch. 164, Act of July 8, 1915, 1915 Neb. Laws ch. 237; Act of March 17, 1911, 1911 Nev. Stats. § 28; Act of April 18, 1917, 1917 N.H. Laws ch. 181; Act of April 21, 1911, 1911 N.J. Laws ch. 56; Act of Feb. 19, 1917, 1917 Or. Laws ch. 279 (first Oregon sterilization statue); Act of Feb. 24, 1923, 1923 Or. Laws ch. 194


17

(second Oregon statue); Act of March 8, 1917, 1917 S.D. Sess. Laws ch. 236; Act of March 16, 1925, 1925 Utah Laws ch. 82; Act of March 20, 1924, 1924 Va. Acts ch. 394; Act of March 22, 1909, 1909 Wash. Laws ch. 249 § 35 (first Washington sterilization statute); Act of March 8, 1921, 1921 Wash. Laws ch. 53 (second statute); Act of July 30, 1913, 1913, Wis. Laws ch. 693.

34. Mickle v. Henrichs, 262 F. 687 (D. Nev. 1918), on cruel and unusual punishment grounds; Smith v. Board Examiners of Feebleminded, 85 N.J. L. 46 88 A. 963 (1913), on equal protection grounds; Davis v. Berry, 216 F. 413 (S.D. Iowa 1914), rev'd on other grounds, 242 U.S. 468 (1917), on cruel and unusual punishment and due process grounds; Haynes v. Lapeer, Circuit Judge, 201 Mich. 138, 166 N.W. 938 (1918), on equal protection grounds; Osborn v. Thomson, 103 Misc. 23, 169 N.Y.S. 638 (Sup.Ct.), aff'd, 185 App. Div. 902, 171 N.Y.S. 1094 (1981), on equal protection grounds; Williams v. Smith, 190 Ind. 526, 131 N.E. 2 (1921), on due process grounds; and Cline v. Oregon State Board of Eugenics (Circuit Court for Marion County, Dec. 13, 1921), on due process grounds, reported in J. Robitscher, supra note 29 at 126.

35. Williams v. Smith, 190 Ind. 526, 527-28, 131 N.E. 2, 2 (1921).

36. Smith v. Board of Examiners, 85 N.J.L. 46, 53, 88 A. 963, 967 (1913).

37. H. Laughlin, Eugenical Sterilization in the United States 116 (1922).

38. Id at 339.

39. Smith v. Command, 231 Mich. 409, 421, 204 N.W. 140, 149 (1925).

40. Act of Mar. 20, 1924, ch. 394, 1924 Va. Acts 569.

41. Id.

42. Id.

43. R. Cynkar, "Buck v. Bell: 'Felt Necessities' v. Fundamental Values'?" 81 Columbia L. Rev. 1418, 1438 (1981).

44. Record at 34, Buck v. Bell, 274 U.S. 200 (1927).

45. Id. at 78.

46. Id. at 91.

47. Laughlin, supra note 18, at 20.

48. See P. Lombardo, "Three Generations, No Imbeciles: New Light on Buck v. Bell," N.Y.V. L. Rev. 30 (1985).

49. Id. at 33.

50. R. Cynkar, supra note 43, at 1438-39.

51. R. Lombardo, supra note 48, at 52.


18

52. Id. at 321, 130 S.F. at 519.

53. H. Laughlin, supra note 18, at 17.

54. S.J. Gould, "Carrie Buck's Daughter," 93 Natural History 14 (1984).

55. Buck v. Bell, 143 Va. 310, 315,130 S.E. 516, 517 (1925).

56. Id. at 321, 130 S.F. at 519.

57. R. Cynkar, supra note 43, at 1446.

58. H. Laughlin, supra note 18 at 49 (reprinting Brief for Plaintiff in Error).

59. Brief for Defendant in Error at 35, Buck v. Bell, 274 U.S. 200 (1927).

60. Id. at 18.

61. The sole dissenter was Justice pierce butler. Although he wrote no opinion, it is generally accepted that Butler was a staunch Catholic who objected to sterilization on religious ground.

62. 274 U.S. at 207.

63. Id.

64. Id.

65. See, for example, R. Cynkar, supra note 43, at 1450; Y. Rogat, supra note 9, at 284; and M. Dudziak, supra note 9, at 856.

66. Commonwealth v. Jacobson, 183 Mass. 242, 248, 66 N.E. 719, 720 (1903).

67. P. Lombardo, supra note 48, at 32.


69. 274 U.S. at 207.

70. R. Cynkar, supra note 43, at 1453.

71. Id. at 1454.

72. M. Haller, supra note 10, at 140-141.

73. State v. Schaffer, 126 Kan. 607, 270 Pac. 604 (1928).

74. State v. Troutman, 50 Idaho 673, 677, 299 Pac. 668, 670 (1931).

75. 316 U.S. 35 (1942).


19

76. H. Laughlin, supra note 18 at 61.

77. "Notes and Memoranda," 19 Eugenics Review 226, 227 (1927).

78. Id. at 228.

79. Id. at 229.

80. Holmes to Laski, April 25, 1927 (Holmes-Laski Letters p. 938).

81. Holmes to Laski, July 23, 1927 (Holmes-Laski Letters p. 964).

82. C. Vose, supra note 8, at 17.

83. P. Lombardo, supra note 48, at 32.

84. New York Times, May 3, 1927, at 19, col. 1.

85. C. Darron, "The Eugenics Cult," 8 American Mercury 129 (1926); see also Eggen, "Eugenic Teaching Imperils Civilization," 24 Current Hist. 882 (1926).

86. See supra note 34.

87. C. Boston, "A Protest Against Laws Authorizing the Sterilization of Criminals and Imbeciles," Journal of the American Institute of Criminal Law and Criminology 326 (1913).

88. Id. at 344.

89. Id. at 339-340.

90. See generally K. Ludmerer, supra note 27, at 121-124; Kevles, supra note 10 at 118-128; and A. Chase, supra note 8 at 381-322.

91. S.P. Davies, supra note 23, at 74. (emphasis mine).

92. P. Lombardo, supra note 48, at 57 (En. 165).

93. Holmes to Laski, April 29, 1927 (Homes-Laski Letters, p. 939).

94. Draft Opinion of Buck v. Bell, in Mr. Justice Holmes' opinions, United States Supreme Court, October Term, 1926, at 3 (Oliver Wendell Holmes, Jr. Papers, Harvard Law Library) .

95. M. Pusey, I Charles Evans Hughes 286 (1951).

96. The Holmes-Einstein Letters 267 (May 19, 1927). (J. Peabody ed. 1964).

97. Holmes to Laski, April 29, 1927 (Holmes-Laski Letters, 938).

98. Id. at 942.


20

99. Holmes to Lady Leslie Scott, May 17, 1912 (unpublished correspondence) Oliver Wendell Holmes, jr. Rogers, Harvard Law Library. (emphasis mine).

100. O.W. Holmes, Sr. 8 Collected Works 322, 343 (1892).

101. Id.

102. Holmes to Cohen, Feb. 5, 1919, from F. Cohen (ed.). "The Holmes-Cohen Correspondence," 9 Journal of the History of Ideas 1, 14-15 (1948).

103. M. Howe, 1 Justice Oliver Wendell Holmes 102 (1957).

104. F. Biddle, Justice Holmes, Natural Law, and the Supreme Court 13 (1960).

105. M. Howe (ed.) Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes 54 (1962).

106. On Holmes' Civil War experiences and their influence on him, see generally E. Wilson, Patriotic Gore: Studies in the Literature of the American Civil War 743-796 (1962), and S. Touster, "In Search of Holmes from Within," 19 Van. L. Rev. 438 (1964).

107. See, for example, Holmes to Pollock, June 18, 1925 (2 Holmes-Pollock Letters 163); and Wu, Justice Holmes to Dr. Wu: An Intimate Correspondence 37 (1948).

108. 2 Holmes-Pollock Letters 205; Holmes to Bryce, Sept. 17, 1919 (Oliver Wendell Holmes, Jr. Papers, Harvard Law Library).

109. Pollock to Holmes, April 11, 1920 (2 Holmes-Pollock Letters 39).

110. Holmes to Pollock, April 25, 1920 (2 Holmes-Pollock Letters 41). (emphasis mine). In this same letter, Holmes comments on a conversation with Chief Justice Taft about replacing the "best part of the South" that had been "wiped out" in the Civil War. Although Taft maintained that it was impossible, Holmes said "the replacing of the population is not a disagreeable task."

111. Holmes, Speeches, at 63. (1934).

112. Id. at 92.

113. Holmes, Collected Legal Papers 296 (1920).

114. Id. at 296-297.

115. Holmes to Bryce, Aug. 9, 1918 (Oliver Wendell Holmes, jr. Papers, Harvard Law Library).

116. "Summary of Events, Great Britain," 7 American Law Review 582-583 (1873).

117. Id.

118. Id.

119. Holmes, "Ideals and Doubts," 10 Ill. L. Rev. 1.3 (1915).

120. H. Shriver (ed.) Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers 140 (1936).

121. Id.


21

122. 261 U.S. 525, 567 (1922). (emphasis mine).

123. Holmes, Collected Legal Papers 189 (1920).

124. Holmes to Einstein, Sept. 20, 1910. Holmes-Einstein Letters 56.

125. Holmes to Franklin Ford, July 22, 1912 from D. Burton (ed.) Progressive Masks: Letters of Oliver Wendell Holmes. Jr. and Franklin Ford 100 (1982).

126. Holmes to Einstein, Aug. 6, 1917 in Holmes-Einstein Letters 145. (emphasis mine).

127. Malthus warned that the population would exceed the available supply of food unless controlled marriage was practiced.

128. Holmes to Laski, Sept. 16, 1924; Holmes-Laski Letters 658.

129. Holmes to Laski, July 23, 1925; Id. at 762.

130. Holmes to Laski, June 14, 1927; Id. at 950.

131. Holmes to Laski, July 30, 1920; Id. at 272.

132. Holmes to Laski, Dec. 26, 1917; Id. at 122.

133. Holmes to Laski, June 14, 1922; Id. at 431. It should be pointed out that in addition to being a friend of Justice Holmes, Harold Laski was a British eugenics proponent who had studied under Galton himself.

134. Holmes to Pollock, Feb. 1, 1920; 2 Holmes-Pollock Letters 36.

135. Holmes to Wu, July 21, 1925 (Holmes-Wu Correspondence at 31).

136. Holmes to Laski, Dec. 9,1921 (Holmes-Laski Letters 385).

137. Holmes to Laski, July 17, 1925 (Holmes-Laski Letters 761).

138. O.W. Holmes, The Common Law; (1881).

Documents

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