Authors: Edwin Black
Even amid the wounds of war, Holmes never lost his fascination with the great thinkers. While recovering from injuries sustained at Chancellorsville, Holmes read the latest philosophical treatises. After the war, he returned to his beloved Harvard to earn a law degree and write legal theory.
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Soon, Holmes’ rapier-like pronouncements on the purpose of American law as a champion of the people’s will began to shape legal thought in the nation. He saw the law as a living, organic expression of the people, not just a sterile codex. “The life of the law has not been logic: it has been experience,” Holmes lectured. “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”“
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His rise was rapid. In March of 1881, Holmes’ provocative lectures on the nature of law were compiled into an anthology,
The Common Law.
It was an immediate success. Within ten months of the book’s publication, in January of 1882, Holmes was elected a Harvard law professor by the university faculty. His reputation as an authority on jurisprudence widened. On December 8 of that same year, before serving his first full year as a professor, the governor of Massachusetts sent an urgent request for Holmes to leave Harvard and assume a seat as associate justice on the Massachusetts Supreme Court. So pressed was the governor that he implored Holmes to reply by 3 :00 P.M. of the same day. Holmes replied on time and accepted the position. In 1899, Holmes was appointed chief justice of the Massachusetts Supreme Court.
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In 1902, President Theodore Roosevelt, impressed with Holmes’ growing juridical prestige, appointed Holmes to the U.S. Supreme Court. There, Holmes assumed a legendary status as a defender of the Constitution and proud expositor of unpopular opinions that nonetheless upheld the rule of law. For more than a quarter century, his name was virtually synonymous with the finest principles of the legal system. During his tenure on the highest bench, he wrote nearly one thousand valued opinions.
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Holmes also became famous for powerful dissents, 173 in all. Many championed and clarified the most precious elements of free speech. In one such dissent, he argued “the ultimate good desired is better reached by free trade in ideas-that the best of truth is the power of the thought to get itself accepted in the competition of the market…. “ In 1928, he enunciated the lasting precept: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought we hate.” Yet Holmes was wise enough to assert that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
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Indeed, in 1931, his ninetieth birthday celebration would be an event for the nation, broadcast over the Columbia Radio System. Speeches lauded him as “America’s most respected man oflaw.”
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Into the hands of Oliver Wendell Holmes, defender of the noblest ideal of American jurisprudence, was Carrie Buck commended.
Buck v. Bell
would be decided in May of 1927. But the eighty-six-year-old Holmes was in many ways defined by the Civil War and ethically shaped by the nineteenth century. While recovering from the wounds of Chancellorsville, his reading included Spencer’s
Social Statics,
the turning-point tract that advocated social Darwinism and so significantly influenced Galtonian thought. Spencer argued the strong over the weak, and believed that human entitlements and charity itself were false and against nature. Indeed, Holmes’ 1881 lecture series in
The Common Law
also asserted that the idea of inherent rights was “intrinsically absurd.”
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Moreover, the warrior-scholar seemed to believe that “might makes right.” In his essay entitled “Natural Law,” Holmes defined truth. “Truth,” he declared, “was the majority vote of that nation that could lick all others.”
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1n a graduation speech to Harvard’s class of 1895, Holmes declared the sanctity of blindly following orders. “I do not know what is true,” he told the audience. “I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt … that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause he little understands, in a plan of a campaign of which he has no notion, under tactics of which he does not see the use. “
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While Holmes’ influential Supreme Court opinions and dissents exemplified and eloquently immortalized the highest virtues of American jurisprudence, his private exchanges reveal a different man. Holmes reviled “do-gooders” and in 1909 he quipped to a friend, “I doubt if a shudder would go through the spheres if the whole ant-heap were kerosened.” In 1915, writing to John Wigmore, dean of Harvard Law School, Holmes sneered at “the squashy sentimentalism of a big minority” of people, who made him “puke.” He was similarly nauseated by those “who believe in the upward and onward-who talk of uplift, who think … that the universe is no longer predatory. Oh, bring me a basin.”
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In the years just prior to receiving
Buck v. Bell,
Holmes expressed his most candid opinions of mankind. In 1920, writing to English jurist Sir Frederick Pollack, Holmes confessed, “Man at present is a predatory animal. I think that the sacredness of human life is a purely municipal idea of no validity outside the jurisdiction. I believe that force, mitigated so far as it may be by good manners, is the
ultima ratio,
and between two groups that want to make inconsistent kinds of world I see no remedy except force.”
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He was fond of a certain slogan, and in June of 1922 he repeated it to British scholar and future Labor Party Chairman Harold J. Laski. “As I have said, no doubt, often, it seems to me that all society rests on the death of men. If you don’t kill ‘em one way you kill ‘em another-or prevent their being born.” He added, “Is not the present time an illustration of Malthus?”
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In 1926, Holmes again confided to Laski, “In cases of difference between oneself and another there is nothing to do except in unimportant matters to think ill of him and in important ones to kill him.”
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Shortly thereafter, Holmes wrote Laski, “We look at our fellow men with sympathy but nature looks at them as she looks at flies…. “
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The other men of the Supreme Court included Justice Louis Brandeis, the eminent Jewish human rights advocate. Another was the racist and anti-Semite James Clark McReynolds, who refused to even sit or stand next to Brandeis. The chief justice was former president William Howard Taft.
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On May 2, 1927, in the plain daylight of the Supreme Court, with only Justice Pierce Butler dissenting, Justice Holmes wrote the opinion for the majority.
Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the circuit court, in the latter part of 1924. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard … without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who if now discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility,
&C.
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Holmes’ opinion summarized the extensive procedural safeguards Virginia had applied, and concluded, “There is no doubt that in that respect the plaintiff in error has had due process of law.”
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He continued, and in many ways quoted Laughlin’s model eugenical law verbatim.
The attack is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck “is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,” and thereupon makes the order …. 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.
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Then Holmes wrote the words that would reverberate forever.
It is better for all the world, if instead of waiting to execute degenerate off-spring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.
Three generations of imbeciles are enough.
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It was over. Carrie Buck was sterilized before noon on October 19, 192 7. Her file was noted simply: “Patient sterilized this morning under authority of Act of Assembly…. “ Her mother Emma, residing elsewhere in the same institution, ultimately died some years later, and was ignominiously buried in a colony graveyard beneath tombstone marker #575. Little Vivian, the third generation to be declared an imbecile, was raised by the Dobbses, and enrolled in school, where she earned a place on the honor roll. In 1932, however, Vivian died of an infectious disease at the age of eight.
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Eugenical sterilization was now the law of the land. The floodgates opened wide.
* * *
In the two decades between Indiana’s pioneering eugenical sterilization law and the Carrie Buck decision, state and local jurisdictions had steadily retreated from the irreversible path of human sterilization. Of the twenty-three states that had enacted legislation, Maine, Minnesota, Nevada, New Jersey, South Dakota and Utah had recorded no sterilizations at all. Idaho and Washington had performed only one procedure each, and Delaware just five. Even states with strong eugenics movements had only performed a small number: Kansas, for instance, had sterilized or castrated 335 men and women; Nebraska had sterilized 262 men and women; Oregon had sterilized 313; and Wisconsin had sterilized 144.
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Although some 6,244 state-sanctioned operations were logged from 1907 to July of 192 5, three-fourths of these were in just one state: California. California, which boasted the country’s most activist eugenic organizations and theorists, proudly performed 4,636 sterilizations and castrations in less than two decades. Under California’s sweeping eugenics law, all feebleminded or other mental patients were sterilized before discharge, and any criminal found guilty of any crime three times could be asexualized upon the discretion of a consulting physician. But even California’s record was considered by leading eugenicists to be “very limited when compared to the extent of the problem.”
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Many state officials were simply waiting for the outcome of the Carrie Buck case. Once Holmes’ ruling was handed down, it was cited everywhere as the law of the land. New laws were enacted, bringing the total number of states sanctioning sterilization to twenty-nine. Old laws were revised and replaced. Maine, which had not performed such operations before, was responsible for 190 in the next thirteen years. Utah, which had also abstained, performed 252 in the next thirteen years. South Dakota, which had performed none, recorded 577 in the next thirteen years. Minnesota, which had previously declined to act on its legislation, registered 1,880 in the next thirteen years.
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The totals from 1907 to 1940 now changed dramatically. North Carolina: 1,017. Michigan: 2,145. Virginia: 3,924. California’s numbers soared to 14,568. Even New York State sterilized forty-one men and one woman. The grounds for sterilization fluctuated wildly. Most were adjudged feebleminded, insane, or criminal; many were guilty of the crime of being poor. Many were deemed “moral degenerates.” Seven hundred were classed as “other.” Some were adjudged medically unacceptable. All told, by the end of 1940, no fewer than 35,878 men and woman had been sterilized or castrated-almost 30,000 of them after
Buck v. Bell.
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And the men and women of eugenics had more plans. They even had a song, created on the grounds of the Eugenics Record Office in the summer of 1910, which they chanted to the rambunctious popular melodies of the day. They sang their lyrics to the rollicking jubilation of ta-ra-ra-boom-de-ay.
We are Eu-ge-nists so gay,
And we have no time for play,
Serious we have to be
Working for posterity.
Chorus:
Ta-ra-ra-boom-de-ay,
We’re so happy, we’re so gay,
We’ve been working all the day,
That’s the way Eu-gen-ists play
Trips we have in plenty too,
Where no merriment is due.
We inspect with might and main,
Habitats of the insane.
Statisticians too are we,
In the house of Carnegie.
If
to future good you list,
You must be a Eu-ge-nist.
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