robert perske and buck v. bell and oliver wendell holmes and mental defectives

The bleakest year for the disabled in 20th century America was 1927. Why? Because in that year the United States Supreme Court, with Associate Justice Oliver Wendell Holmes writing for an 8-1 majority, upheld a Georgia statute allowing a superintendent of a facility for mental "degenerates," as they were then called, to order the sterilization of one of the members of the facility in view of the fact that she bore a mentally retarded child. I had to go back and re-read the opinion for myself to understand not simply the language of the times but also to reflect on how far we have come in the intervening 79 years on recognizing the rights, value and dignity of persons with disabilities. Join me for a second as we learn about this case. I will be quoting the language of Mr. Justice Holmes throughout.

Buck v. Bell

Carrie Buck was an eighteen year-old "feeble minded white woman" who had been committed to the State (VA) Colony for Epileptics and Feeble Minded. She was the daughter of "a feeble minded mother" who also lived there and the mother of "an illegitimate feeble minded child." In 1924, in the efflorescence of the eugenics movement of the early 20th century, a movement which wasn't really discredited until Hitler took some of its principles in the direction of wanting to exterminate people who weren't of the master race, the Virginia legislature passed the following law. It provided that the health and welfare of society may be promoted in certain cases by the sterilization of "mental defectives" under careful safeguard. The theory was that "insanity, imbecility, etc." were hereditary, and that to lessen the chances of mentally defective children being born, a vasectomy (male) or salpingectomy (female) would be the most responsible course for a society.*

[*I don't have precise information at this point regarding whether sterilization was a program approved by most progressive thinkers or not. My recollection is that the progressive community was divided on the issue. On the one hand they supported the "improvement' not simply of government and politics but also of people. People could be better and bettered, and sterilization might be one of the ways to effect this. But, on the other hand, several progressives shied away from the rather drastic and final nature of this response.]

The attack against the statute brought by Carrie Bell's lawyers was not on the procedural aspects of it (what the superintendent of the institution had to do in order to effect the salpingectomy) but on its substance. They claimed that no circumstances could justify the law or any order flowing from the law. Holmes quickly rejected Buck's argument with the following language:

"In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as matter of law that the grounds do not exist [for upholding the statute], and if they exist they justify the result. 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" Buck v. Bell, 274 US 200 (1927).

Holmes' Language

Oliver Wendell Holmes, Jr. was known as a consummate wordsmith. Indeed, he is remembered by most lawyers today not so much for his judicial philosophy (which often is difficult to divine) but for his aphoristic statements. Shouting "fire in a crowded theater" comes from Holmes, as does his famous statement from a 1905 dissent in Lochner v. New York to the effect that the Fourteenth Amendment doesn't adopt Mr. Spencer's theories in Social Statics. In both of those instances his wit and witticisms became beloved of the political progressives. Since most writers of legal textbooks are liberals, they portray for us a "liberal" Holmes. However, his language in Buck v. Bell, also aphoristic and visual, functions in the opposite way. Holmes is completely committed to the philosophy of eugenics of his day and frames the sterilization of Carrie Buck not in terms that we might want to see him talk, such as the nature of individual rights or the tension between state power and individual freedom, but, in fact, in military terms. It is well-known that Holmes suffered three severe injuries during the Civil War, and that the memory of those events accompanied him vividly to his dying day. Instead, then, of calling on a tradition of personal liberty or freedom, Holmes' mind adverted to a tradition of sacrifice which has its roots in military service to one's country.

But notice how he does so. He doesn't just say 'men make sacrifices; women need to do so too; judgment upheld.' Rather, he uses the terminology and moral judgmentalism of the time to express the opinion of the Court. She has already "sapped" the strength of the society by her imbecility. And, her future offspring will probably sap it still more, since they will be "degenerate" (note the connection between degeneracy and crime which is posited) and will either have to be put to death for their crimes or will starve due to their imbecility. Then he concludes with the linchpin: "Three generations of imbecilies are enough."

Conclusion

Under the supposedly impartial mantle of the judical robes, Holmes was spouting an untested but popular theory of the time. His language reflected that theory. It has taken us decades to undo the damage of the opinion in Buck v. Bell, but that damage is being undone. And, one of the reasons it is being undone is because of Robert Perske. I guess I didn't tell you much about him here; the next essay will do so.

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