A Satchel of Embarrassments: Oliver Wendell Holmes and Buck v. Bell

Just One Generation of
Supreme Court Imbeciles

When the German Medical Crimes Tribunal heard the cases against the Nazi regime based on forced sterilization of "feeble minded" persons and others, a not-so-very surprising defense was offered. Germany's mad scientists argued that the Nazi's forced sterilization program, an extension of the overarching, "Aryan" program of eugenics, was drawn from the particulars of a similar program conducted in one of the prosecuting Nations, the United States of America.

Nazi doctors claimed that their crimes could not be crimes because their actions mirrored those carried out in the United States, and those done there were carried out with the approval of the United States Supreme Court.

Could that be the case? Could the United States have provided the sick inspiration for the medical crimes of Nazi Germany. Unfortunately for us, the Nazis were right.

The case was Buck v. Bell.

Carrie Buck, a Virginian, resided at a State institution for the feeble minded. There, by state law, she was subject to involuntary sterilization under a Virginia eugenics law intended to prevent procreation by feeble mindeds, incompetents, and other genetically "undesirable" populations.     "[Carrie wa]s the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child." The court below found that Buck was

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[.]

I take a caution here. This statement is not Justice Holmes' for the Court, but a quotation from the Virginia court that denied Carrie's requested order protecting her from involuntary sterilization.

Justice Holmes, as I mentioned in discussing Harry Blackmun above, had concerns about substantive due process being a tool by which substantial accretions of power were being deposited with the Court over time. As in other cases where he was loathe to reject State laws based on the discovery of newly identified substantive rights within the Due Process Clause of the Fourteenth Amendment, Justice Holmes rejected Buck's attempt to attack the Virginia Eugenic Sterilization Act on the ground of a substantive right to be free from State imposition on her ability to procreate.

In his brief discourse rejecting Buck's claim, Justice Holmes penned one of the most disturbing, startling paragraphs on the power of the State and the justifications for its actions:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [] Three generations of imbeciles are enough.

In essence, Justice Holmes concluded that, because society chooses to create a social safety net, it can impose "smaller sacrifices" on those that fall into the net. Such a principle, once articulated, has no obvious limits.

It is no wonder that Nazi doctors invoked Holmes' reasoning to try (unsuccessfully) to avoid conviction for their identical program of forced sterilization. One might say, three generations of imbecilic Supreme Court opinions is enough.

Bigotry or Liberty?

So I stopped at a kosher deli and ordered a ham sandwich. They refused me service!

Then I went by the Halal meat market and ordered a ham sandwich. They refused me service!

I tried to hire Jackson Pollock to paint a family portrait. He refused me service!

I stopped by the Washington Post and asked to buy advertising space to run a full page editorial criticizing the Washington Post's liberal biases. They refused me service!

I went by the Catholic Church and tried to get the priest to perform a bar mitzvah. He refused me service!

I visited the Baptist Church down the street and asked for some transubstantiated communion. He refused me service!

I slipped on a yarmulke and tried to get into a Neo Nazi meeting. They refused me service!

Suddenly, it struck me! This Nation is filled with bigots! The American University Women's Association, the National Association for the Advancement of COLORED People, La Raza, the Ku Klux Klan, Girl Scouts USA, etc etc etc.

And it's not just private clubs!

Businesses refuse to sell me the products I like.

Jewish delis and halal meat markets inconvenience me by not carrying ham. Artists inconvenience me by claiming a right to control their creativity. Editors oppress me by refusing to adopt my messages in their papers.

Or. perhaps, this Nation is filled with people who have the natural right to LIBERTY. A right not granted by the State (sorry Chris Cuomo) but by God. And encompassed within that right is a freedom to associate with others and to associate with ideas.

How meaningless is the right to associate and to associate yourself with ideas if the government can come along and compel you to associate with those that you do not freely choose to join with, or to express ideas that you have not freely adopted for yourself.

Do I think that Denny's or Kinko's should deny service to whites or blacks, straights or gays, Catholics or Protestants? No.

If I go into Denny's and demand that they serve me a product they don't carry, however, that's not discrimination. And, when it comes to printing, if I go into Kinko's and demand that they make 100 copies of a copyrighted work belonging to another, and they decline, that's not discrimination. Denny's isn't in the business of serving Big Macs and Kinko's is not in the business of copyright infringement.

Now, oftentimes, there is no particular exercise of natural rights to liberty at stake when a person seeks to have the benefit of another's entry into a business or offering of a service. And, for most businesses, a foolish insistence on the right to refuse service is a foolish commitment to less foot traffic, lower volumes and, subsequently, reduced income, 

So, some folks will prefer not to do business with me, or you, or another. Given our distaste -- ensconced in law -- for monopoly, the unwillingness of one to do business with another only means that the person denied service will get their product or service from someone else, someone that has no such strong sense -- whether founded in religion, morality, politics, ideology, or just stupidity -- that it's better to lose a sale than to compromise a view, an opinion, a belief or a conviction.

There is more than hubris in the current brouhaha over the Indiana Religious Freedom Restoration Act. There is a terrible shortsighted ignorance of how the ruination of the freedoms belonging to others ruins our own freedoms too.

Sure, we'd love the day when Klansmen invite African Americans into their homes for kindly discussions over dinner. We'd all love the day when vitriolic demagogues in the Democratic Party and rascally radicals in the Republican Party worked together for the common good. But who is fooling whom when it is the jackboot on the neck that obtains the cooperation of all?