Authors: Edwin Black
Enter Carrie Buck. She would be the test case.
Virginia’s legislators had been reluctant to pass a eugenic sterilization law. “[We] were laughed at by the lawmakers who suggested they might fall victim to their own legislation,” recalled Joseph Dejarnette, superintendent of the Western State Hospital in Staunton, Virginia. He added, “I really thought they ought to have been sterilized as unfit.”
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In 1922, after numerous state laws had been vetoed or overturned by the courts on Constitutional grounds, Laughlin completed a massive 502-page compilation of state eugenical legislation. It was entitled
Eugenical Sterilization in the United States.
The dense volume, bristling with state-by-state legal analysis and precedent, included what lawyers and eugenicists unanimously declared to be a new “model sterilization law,” updated since previous iterations of Laughlin’s model legislation. It was indeed the complete legislator’s guide. Laughlin was certain that a law that followed a rigid course of due process, proper notification to the patient, adversarial protection of the patient’s rights, and a narrow, nonpunitive, health-based eugenical sterilization regimen could withstand a U.S. Supreme Court challenge. Burnishing the report’s legal soundness was the fact that it was not issued by any of the Cold Spring Harbor entities, but was distributed as an official document of the Municipal Court of Chicago. Judge Olson, who headed Chicago’s Municipal Court, concomitantly served as president of the Eugenics Research Association. Olson even wrote the introduction, saluting Laughlin, who “rendered the nation a signal service in the preparation of this work…. “
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Laughlin personally sent a copy to Priddy. Now Priddy and his fellow Virginia eugenicists would carefully follow Laughlin’s advice. In the fall of 1923, with a mandate from Virginia’s State Hospital Board, Priddy and colony attorney Aubrey Strode authored comprehensive new legislation closely resembling the text and format of Laughlin’s model statute. By March 30, 1924, Virginia’s eugenics law, which now included numerous due process safeguards, was finally passed by both state houses and signed by the governor. It was to take effect on June 17, 1924.
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Although Carrie was condemned as feebleminded on January 23,1924, she was not immediately admitted to the colony. Pregnant girls were not permitted in the facility. On March 28, Carrie gave birth to a daughter, Vivian. Since Carrie had been declared mentally incompetent, she could not keep the child. Ironically, the Dobbses took Vivian in.
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Three generations of Bucks had intersected with J.T. Dobbs.
Carrie’s arrival at the colony was delayed until June 4, just days before the new sterilization law took effect. A legal guardian, Robert Shelton, was properly appointed for her and properly paid $5 per day, just as the statute and due process required. On September 10, 1924, a colony review board properly met and ruled that Carrie “is feebleminded and by the laws of heredity is the probable potential parent of socially inadequate offspring, likewise afflicted …, “ and as such “she may be sexually sterilized … and that her welfare and that of society will be promoted by her sterilization…. “
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Upon completion of the hearing, the board properly inquired if they could proceed. Colony attorney Strode properly advised that the Virginia act “had yet to stand the test of the Courts.” Strode later recounted, “Whereupon, I was instructed to take to court a test case.”
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Carrie’s guardian, Shelton, was then asked by Strode to appeal the case “in order that we may test the constitutionality through our state courts, even to the Supreme Court of the United States.” Shelton then secured ostensibly independent counsel to represent the eighteen-year-old in a legal challenge scheduled for November 18, 1924. Attorney Irving Whitehead was selected to represent Carrie. Whitehead was no stranger to the colony, however, and to many the arrangement seemed little more than a collusive defense. He was, after all, one of the original three directors appointed by the governor to manage the colony when it was established in 1910. Whitehead and his fellow trustees appointed Priddy as their first superintendent. Later, Whitehead had represented the institution on the State Board of Hospitals. In his official capacity, Whitehead had personally endorsed the sterilizations of some two dozen women, including the two Mallory women, and had even lobbied the Virginia legislature for broader legal authority. A building in the colony complex erected the year before was actually named after him. The Wednesday before the trial, Priddy recommended Whitehead for a government position.
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Yet it was Whitehead, a staunch eugenicist, founding father of the colony and an advocate of sterilization, who was to champion Carrie Buck’s defense.
To bolster the argument that Carrie represented a biological menace, attention next fell on little Vivian. If the infant could somehow be deemed mentally defective, the Bucks would represent three generations of imbeciles-a clear threat to the state. Priddy asked a Red Cross social worker to send evidence certifying the infant as feebleminded, and was almost certainly startled to hear back from the social worker: “I do not recall and am unable to find any mention in our files of having said that Carrie Buck’s baby was mentally defected.”
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Priddy dispatched a note to eugenic activist Dr. Joseph Dejarnette, superintendent of the State Hospital at Staunton. Dejarnette would be called as a state expert witness. “A special term of the Court of Amherst will be held … November 18, 1924 to hear … the case of Carrie Buck’s child, on which the constitutionality of the sterilization law depends. It is absolutely necessary that you be present and I would suggest you read up all you can on heredity like [the] jukes, callikaks
[sic]
and other noted families of that stripe.” Priddy added, “I want you to help me in this matter by going over to Charlottesville … to get a mental test of Carrie Buck’s baby…. The test you will make will be the usual one in line with the inclosed
[sic]
test sheet. We are leaving nothing undone in evidence to this case…. I am enclosing you a letter from Dr. Laughlin and think you will need it. Please return the inclosures
[sic]
as Col. Strode may want them for his files, he having had the correspondence with Dr. Laughlin.”
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Priddy also assured Dejarnette that even though Vivian was only a few months old, she could still be deemed unfit. “We have an advantage,” wrote Priddy, “in having both Carrie Buck and her mother, Emma, as inmates of this institution.” Once more, the emphasis was on three generations.
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Shortly thereafter, Carrie’s seven-month-old daughter Vivian was examined by a social worker. In a subsequent hearing the social worker was asked, “Have you any impression about the child?” Emphasizing the word
probabilities,
the social worker replied, “It is difficult to judge probabilities of a child as young as that, but it seems to me not quite a normal baby.” In reply, she was led, “You don’t regard her child as a normal baby?” The social worker cautiously responded, “In its appearance-I should say that perhaps my knowledge of the mother may prejudice me in that regard, but I saw the child at the same time as Mrs. Dobbs’ daughter’s baby, which is only three days older than this one, and there is a very decided difference in the development of the babies. “
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Once more, the social worker was prompted, “You would not judge the child as a normal baby?” The social worker answered, “There is a look about it that is not quite normal, but just what it is, I can’t tell.” That was enough for the judge. Vivian was deemed defective, like her mother and grandmother before her.
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Priddy also requested expert eugenical testimony from Laughlin, who would not be able to travel to Virginia for the trial but agreed to file a deposition. He asked Priddy for Carrie’s genealogy to help him prepare a proper eugenical verdict. Priddy had nothing. “As to our test case,” Priddy wrote Laughlin, “I am very sorry I cannot make you out a genealogical tree such as you would like to have, but this girl comes from a shiftless, ignorant and moving class of people, and it is impossible to get intelligent and satisfactory data….”
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Laughlin’s deposition simply echoed Priddy’s offhand words. “These people belong to the shiftless, ignorant and moving class of anti-social whites of the South,” wrote Laughlin. His expert opinion went on: “Carrie Buck: Mental defectiveness evidenced by failure of mental development, having a chronological age of 18 years with a mental age of 9 years, according to Stanford Revision of Binet-Simon Test; and of social and economic inadequacy; has record during life of immorality, prostitution and untruthfulness; has never been self-sustaining; has had one illegitimate child, now about six months old and supposed to be mental defective.”
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Laughlin’s deposition then dispatched the mother, Emma Buck. “Mental defectiveness evidenced by failure of mental development,” Laughlin averred, “having a chronological age of 52 years, with a mental age, according to Stanford Revision of Binet-Simon Test, of seven years and eleven months (7 yrs. 11 mos.); and of social and economic inadequacy. Has record during life of immorality, prostitution and untruthfulness; has never been self-sustaining, was maritally unworthy; having been divorced from her husband on account of infidelity; has had record of prostitution and syphilis…. “
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Ultimately, Laughlin connected the dots, declaring that Carrie’s “one illegitimate child, [was also] considered feeble-minded.”
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Three generations.
The judge took the case under advisement. While awaiting a decision, Priddy died of Hodgkin’s disease, a cancer of the lymphatic system. Priddy’s assistant, J. H. Bell, replaced him as defendant. Thereafter the case became known as
Buck v. Bell.
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On April 13, 192 5, the Amherst County Circuit Court upheld the original decision of the colony’s special board. Carrie’s attorney, Whitehead, immediately appealed the decision to the Virginia Court of Appeals. He petitioned on three Constitutional points: first, deprivation, without due process, of a citizen’s rights to procreate; second, violation of the Fourteenth Amendment of the Constitution, providing for due process; and third, a violation of the Eighth Amendment of the Constitution, proscribing cruel and unusual punishment. Whitehead’s brief was brief indeed, just five pages long. On the other hand, colony attorney Strode filed a forty-page brief carefully documenting the state’s police powers and its need to protect public health and safety.
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Virginia’s Court of Appeals upheld the colony’s decision to sterilize Carrie, denying all claims of cruel and unusual punishment or lack of due process.
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For Carrie, and the future of sterilization, there was nowhere to go but up. The circle of friends staging a collusive Constitutional challenge, papered wall to wall with documented safeguards and procedural rectitude, were now ready for their final step. Carrie’s case was appealed to the highest court in America, the United States Supreme Court. The colony was confident. The board minutes for December 7, 192 5, record: “Colonel Aubrey E. Strode and Mr. I. P. Whitehead appeared before the Board and outlined the present status of the sterilization test case and presented conclusive argument for its prosecution though the Supreme Court of the United States, their advice being that this particular case was in admirable shape to go to the court of last resort, and that we could not hope to have a more favorable situation than this one.”
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If the Supreme Court would uphold Carrie Buck’s sterilization, the floodgates of eugenic cleansing would be opened across the United States for thousands. Carrie’s destiny, and indeed the destiny of eugenics, rested upon nine men-and most heavily on the one man who would ultimately write the court’s opinion. That man was Justice Oliver Wendell Holmes Jr., considered by many to be America’s clearest thinker and most important judicial authority.
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* * *
Oliver Wendell Holmes Jr. lived a life innervated by the great men of literature, propelled by his personal acts of courage, and eventually gilded by the judicial preeminence thrust upon him. He was the best America had to offer. Born in Massachusetts in 1841, his father was a famous physician, poet, and essayist. He had achieved literary esteem from his satirical columns in the
Atlantic
Mo~thly, later collected for the anthology
Autocrat of the Breakfast Table.
Young Oliver grew up in the company of his father’s circle of literati, including Henry Wadsworth Longfellow, Ralph Waldo Emerson, and Nathaniel Hawthorne. Herman Melville was a neighbor at the Holmes’ summerhouse.
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It
was the law, however, that would capture the imagination of Oliver Wendell Holmes Jr. Judges and attorneys had peopled the Holmes family tree for three centuries. A maternal grandfather had sat on the Supreme Judicial Court of Massachusetts.
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Holmes was a Harvard scholar, but he had been brave enough to join the rush to war in 1861, even before taking the final exams needed for graduation. He joined the Twentieth Massachusetts Volunteers, known as the Harvard Regiment. He fought valiantly and was wounded three times, once in the chest at Ball’s Bluff, once in the leg at Chancellorsville and once through the neck at Antietam during the single bloodiest day of the war. Some thought the scholar-turned-soldier fought to test his own manliness; others suggested it was for” duty and honor. “
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It was probably both.
Certainly, Holmes achieved hero status. One legend claims that when President Lincoln visited Fort Stevens, near Washington, D.C., Holmes had served as his escort. At some point the president stood up to get a better view of something, and a Confederate soldier promptly shot at his stovepipe hat. Holmes dragged the president down, admonishing, “Get down, you damn fool!” Far from insulted, a grateful Lincoln replied, “Goodbye, Captain Holmes. I’m glad to see you know how to talk to civilians.”
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