“LET HER BE STERILIZED:” BUCK V. BELL, the AMERICAN EUGENICS MOVEMENT, and the ROOTS of the RIGHT to PRIVACY

“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

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

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

“LET HER BE STERILIZED:” While commentators like Felix Frankfurter have attributed Justice Holmes' role in Buck v. Bell to a BUCK V. BELL, THE AMERICAN policy of judicial restraint, others have accused Holmes EUGENICS MOVEMENT, and THE and his brethren on the Court of suddenly going along ROOTS OF THE RIGHT TO with the "eugenics craze" in the United States.8 As this PRIVACY paper will demonstrate, however, Holmes was no casual addition to the eugenics bandwagon. Careful analysis of Holmes' correspondence (both published Justice Oliver Wendell Holmes, Jr. once stated "It and unpublished), speeches, and legal writings reveal is a misfortune if a judge reads his conscious or another, darker side of the "Yankee from Olympus." unconscious sympathy with one side or the other Justice Holmes fervently believed not only that it prematurely into the law and forgets that what seem to would be possible for science to breed a better race of him to be first principles are believed by half his fellow human beings, but that such reform should begin by men to be wrong."1 Indeed, many scholars maintain eliminating "unfit" members of society. Moreover, that Justice Holmes' detachment and policy of these beliefs were firmly rooted in Justice Holmes' deferring to the legislative will made him one of philosophy long before the case of Buck v. Bell America's greatest jurists. Felix Frankfurter observed presented him with an opportunity to further the eugenics cause. Probably no man who ever sat on the Court From the handful of scholars who have identified was by temperament and discipline freer Holmes as a eugenicist, a satisfactory examination of the sources and depth of Holmes' eugenic beliefs has from emotional commitments compelling 9 him to translate his own economic or social yet to emerge. This paper hopes to address this gap in views into constitutional commands.2 Holmes scholarship by placing Justice Holmes in historical perspective. The first part of this paper In Frankfurter's eyes Holmes "transcended personal analyzes the historical background of the eugenics predilections and private notions of social policy, and movement itself and particularly its strategy in passing became truly the impersonal voice of the and testing the validity of eugenic sterilization statutes. Constitution."3 Part I culminates in a discussion of the Buck v. Bell A Social Darwinist, Justice Holmes believed that case itself, including Justice Holmes' opinion and life was a constant struggle.4 Competing economic reactions to it. The second part of this paper explores interests and political ideologies were all subject to the beliefs behind both the substance and the tone of testing in the Darwinian arena. Holmes upheld freedom Holmes' opinion. Part II demonstrates not only that of speech, the rights of labor unions, and social reform Holmes held eugenic beliefs long before the advent of legislation, arguing that since only the strongest group the eugenics movement, but that these hopes for or idea would survive, it was best to allow unfettered eugenic reform were the product of various factors: conflict. As much as he might personally disagree with Holmes' social Darwinist leanings and race-suicide "social experiments" by state legislatures, Holmes felt fears, his Civil War experiences, and outside reading. that such legislation was an expression of the dominant As Part II of this paper illustrates, eugenics occupied will of the voting majority. Writing to Sir Frederick an important place in Justice Holmes' philosophy, Pollock, Holmes said, "I am so skeptical as to our judging from the frequency and fervor with which knowledge about the goodness or badness of laws that Holmes wrote on the topic. I have no practical criterion except what the crowd wants."5 I. Eugenics began as a response to a number of In one of his most memorable Supreme Court 10 opinions, however, Justice Holmes did more than intertwined factors in the late 19th century. In Great merely allow the majority vote to hold sway. The 1927 Britain and the United States, industrialism's effects case of Buck v. Bell involved the constitutionality of a were worsened by tides of new immigrants flowing Virginia law authorizing the sterilization of mental into the cities and hastening the urbanization process. defectives6 for eugenic purposes.7 In his majority In addition to these social concerns, Charles Darwin's opinion upholding the statute, Holmes did more than landmark work on evolution through natural selection just defer to the legislature. Holmes openly embraced provoked a new interest in science. With the advent of eugenic reform with particularly forceful language that "Social Darwinism", reformers, businessmen, and gave legitimacy to the then shaky eugenics movement. philosophers like Herbert Spencer began to apply (or, more aptly, misapply) principles of evolutionary biology to society. They saw the existing social order 1

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 as the outcome of a "struggle for life" in which the implies that such a measure would have to have the fittest survived. At the same time, fears of "race- force of law, since voluntary abstinence from marriage suicide" came into vogue. Social Darwinists claimed by the unfit is "more to be hoped for than expected."16 that birthrates of the "best" social classes were However, it was Darwin's cousin, Francis Galton, declining while society was "swamped" by rapidly- who in 1883 coined the term "eugenics" (from the multiplying immigrants and other "inferior" elements; Greek, meaning "well-born") to refer to "the science much of this, it was believed, was due to charitable which deals with all influences that improve the inborn reforms enabling the "unfit" to propagate. qualities of the race . . . [and] develops them to the Although these beliefs seemed to run counter to utmost advantage."17 Galton employed a statistical the necessity of open competition emphasized in The approach as he studied first the family trees of famous Origin of Species, Darwin himself confused the issue individuals and, later, twins. His research convinced in his later writings. In The Descent of Man, for him that many physical and psychological traits were example, Darwin deplored the propagation of the inherited, leading Galton to conclude that society could weak, unfit members of society: produce men of genius through planned breeding. Galton's hereditarian analysis was reinforced by With savages, the weak in body or mind are scientific discoveries elsewhere in Europe, including soon eliminated; and these that survive the work of German biologist August Weismann and commonly exhibit a vigorous state of health. the rediscovery of Gregory Mendel's pioneering studies We civilized men, on the other hand, do our in genetics (including the later disproven belief that utmost to check the process of elimination; separate traits were linked to individual genes.) we build asylums for the imbecile, the Although Mendel had only used his famous ratios to maimed, and the sick; we institute poor-laws; describe the physical traits of peas, early eugenicists and our medical men exert their utmost skill used Mendelian ratios to describe the most complex to save the life of everyone to the last aspects of human social behavior. In other words, these moment. There is reason to believe that early proponents of eugenics (Winston Churchill and vaccination has preserved thousands, who Theodore Roosevelt among them) went beyond from a weak constitution would formerly arguing the inheritability of traits like hair or eye color; have succumbed to smallpox. Thus the weak they also argued that psychological characteristics like members of civilized societies propagate generosity or truthfulness could be passed from one their kind.11 generation to another. Eventually, eugenicists decided that not only that individual heredity could be Darwin found this element of human sympathy for the analyzed, but that "science" could also discern "pools" weak to be a necessary part of human nature, but still of traits that characterized a particular race, nation, or "highly injurious to the race of man."12 He pointed out economic class. that, "excepting in the case of man himself hardly As immigration increased and fears of race anyone is so ignorant as to allow his worst animals to degeneration mounted, the emphasis in eugenic study breed."13 Darwin also noted that military conflict, in shifted from "positive eugenics" (encouraging people addition to resulting in a survival of the fittest, could with socially beneficial traits to marry others like them also lead to "negative selection" of the human race. and reproduce) to "negative eugenics" (eradicating Soldiers, according to Darwin, are socially inadequate classes through sterilization or marriage restrictions in order to weed out degenerate exposed to early death during the war, are traits in the population). Just who constituted the often tempted into vice, and are prevented "socially inadequate classes"? According to a leading from marrying during the prime of life. On American eugenicist, the term covered an incredibly the other hand, the shorter and feebler men, broad range of people: with poor constitutions, are left at home, and consequently have a much better chance of (1) feeble-minded; (2) insane (including the marrying and propagating their kind.14 psychopathic); (3) criminalistic (including the delinquent and wayward); (4) epileptic; While Charles Darwin stopped short of advocating (5) inebriate (including drug-habitués); (6) sterilization of the inferior members of society, he did diseased (including the tuberculous, the suggest one check on mankind's "downward tendency" syphilitic, the leprous, and others with of negative selection. Darwin called for measures chronic, infectious, and legally segregable ensuring that "the weaker and inferior members of diseases); (7) blind (including those with society do not marry so freely as the sound."15 He seriously impaired vision); (8) deaf 2

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

(including those with seriously impaired Mrs. E.H. Harriman.21 The E.R.O. sponsored eugenic hearing); (9) deformed (including the research and trained field workers to collect data all crippled); and (10) dependent (including over the U.S.; in 1921 it became part of the orphans, ne'er-do-wells, the homeless, Department of Genetics of the Carnegie Institution. tramps, and paupers).18 The eugenics movement was further bolstered by university professors, doctors, psychologists, and The eugenics movement found a receptive audience in social workers who jumped on the bandwagon to warn the United States, where faith in science combined the nation of the importance of "race hygiene." Henry with existing social factors. The rapid pace of Goddard, psychologist and director of the Vineland urbanization (resulting in the creation of vast slums) (N.J.) Training School for Feeble-Minded Boys and and waves of immigrants from central and southern Girls, introduced the Binet-Simon intelligence tests to Europe were causes for alarm in the minds of many the U.S. in 1908.22 Goddard's research led him not only white, Anglo-Saxon, upper-class Americans. They felt to classify the mentally deficient, but also to conclude that the "American stock" was doomed by rapidly that feeblemindedness was inherited. In addition, breeding foreigners, whose "inferior" qualities would Goddard's surveys of inmates of prisons, reformatories, hasten a national decline. This nativism of the 1890s and homes for wayward girls led him to conclude that and the early 1900s combined with the atmosphere of mental deficiency was the root of antisocial behavior, reform prevalent during the progressive era.19 Like especially crime and immorality. Noting the feeble- other reform movements, eugenics emphasized state minded population, other writers followed up action toward a common goal and placed the collective Goddard's research with warnings about the "menace" destiny of society above individual success. The of the feeble-minded. A typical speech was delivered eugenics movement was also aided by the growing by Dr. Walter Fernald in 1912 before the interest in philanthropy and public health, as private Massachusetts Medical Society: endowments and public appropriations for hospitals and charitable organizations grew. The fact that . . . The feebleminded are a parasitic, eugenics sustained rather than challenged accepted predatory class, never capable of self-support beliefs (i.e., identification of the "unfit" as the lower or of managing their own affairs . . . classes, who are held down not by environmental Feebleminded women are almost invariably conditions but by biological deficiency) and appealed immoral and if at large usually . . . give birth to people on a variety of levels (for example, the to children who are as defective as inherently nationalistic emphasis on preserving themselves . . . Every feebleminded person . . America's racial stock), was crucial to its spread. . is a potential criminal, needing only the In reality, however, eugenics was a far cry from proper environment and opportunity for the traditional reform movements. Although eugenic development and expression of his criminal policy ran contrary to laissez-faire beliefs with its tendencies.23 highly intrusive state regulation of social relations, eugenicists believed that manipulation of human The eugenic movement's successes and publicity came reproduction would help reestablish a balance that had from the work of influential professionals like been upset by previous charitable reforms. Eugenic Davenport and Goddard, rather than from public measures like sterilization would help eliminate response to the "menace" of race degeneracy. As Mark "poorer stocks" that would have perished through Haller points out, eugenics was "primarily a movement natural selection, had charity not inhibited the process. of specialists rather than a popular crusade."24 It was Nevertheless, the eugenics movement, with its through campaigns for eugenic legislation that the hereditarian viewpoint and active social plan, took its American public was exposed to the misguided place among the reform movements of the progressive principles of eugenics. era. Although Congress passed the first general The eugenics movement grew quickly in the U.S. immigration statute in 1882, lobbying and expert

In 1903, the American Breeders Association was testimony by eugenicists led to increasingly rigid founded; as a result of the strength of its Eugenics immigration legislation.25 Capitalizing on the Section (led by David Starr Jordan and Charles B. isolationist sentiment of the post-World War One

Davenport), the organization was renamed the period, eugenics proponents vigorously lobbied for American Genetics Association in 1913.20 In 1910, statutes that would change not only the numbers of Charles Davenport established the Eugenics Record immigrants, but their character as well. After Harry Office (E.R.O.) at Cold Spring Harbor, New York, Laughlin of the Eugenics Record Office was made the with the financial support of wealthy philanthropist "expert eugenics agent" of the House Committee on 3

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

Immigration in 1920, Congress adopted the By 1925, twenty-three of the forty-eight states had Immigration Act of 1921, which imposed the first passed at least one eugenic sterilization law.33 absolute numerical limits on immigration into the U.S. However, the wording of the statutes varied widely, The Immigration Act of 1924, which has been called with different articulations of the punitive, eugenic, "one of the greatest victories of scientific racism in and therapeutic motives behind each law; American history,"26 imposed harsh quotas on consequently, different classes of people were subject immigrants from southern and eastern Europe, since to each law. Washington's 1909 sterilization statute, for immigrants from these nations were shown (by means example, addressed primarily rapists and habitual of dubious intelligence testing) to have the highest offenders, and so was punitive in nature. The 1921 percentage of "mental defectives." statute, on the other hand, was eugenic in character, Eugenic legislation was not limited to cutting off since it focused on the feebleminded, epileptic, insane, the flow of feebleminded into the country, however. and morally degenerate. The result of these differences Eugenicists sought to prevent the "continuance of the was a series of litigation setbacks for the eugenics unfit" in the U.S. itself by various methods, including movement. The sterilization laws of seven states were legal restrictions on the marriage of the feebleminded, held unconstitutional, on grounds varying from denial epileptic, criminal, and so on.27 While acknowledging of equal protection, violation of due process, or cruel the usefulness of this method, many eugenicists felt and unusual punishment.34 Some courts, even though that more needed to be done. Some advocated they accepted the eugenic purpose behind the law, institutionalizing all of the "unfit," at least in order to reasoned that limiting sterilization to inmates of segregate them during their reproductive period. This institutions had a discriminatory effect against the plan apparently enjoyed widespread support among inmates, insofar as they belonged to a larger class of eugenicists, but the high costs and long-term care mental defectives. Other courts refused to accept the involved convinced the most influential leaders of the eugenic scheme as truth. The Indiana court, for movement that compulsory sterilization would be the example, found that the inmate "has no chance to bring best solution.28 With the development of new surgical experts to show that it should not be performed, nor techniques (the salpingectomy, or cutting and tying of has to a chance to controvert the scientific question that the fallopian tubes, and vasectomy, or cutting and tying he is of a class designated in the statute."35 The New of the vas deferens) pioneered in Europe during the Jersey court expressed doubt as to deciding who was 1890s, eugenicists felt they had arrived at the right "unfit:" answer. The operation was cheaper than wholesale segregation, and would enable a mentally defective There are other things besides physical or individual to lead a productive life outside an mental disease that may render persons institution, without the risk of degenerating the nation's undesirable citizens or might do so in the "germ-plasm." opinion of a majority of a prevailing Although some programs to castrate "defectives" legislature. Racial differences, for instance, were carried on in institutions on a small scale and might afford a basis for such an opinion in without benefit of law,29 eugenicists first formally communities where the question is presented a bill for compulsory eugenic sterilization to unfortunately a permanent and paranoid a state legislature in 1897 in Michigan.30 The bill, issue.36 which provided for sterilization of the feebleminded and certain types of criminals, was defeated. The As a response to this series of reversals, Harry Pennsylvania legislature twice passed eugenic Laughlin began to formulate a strategy to litigating sterilization bills, in 1905 and in 1921, but the bills eugenic sterilization cases. Laughlin had developed a were vetoed each time.31 The first success for the sense of what judges would and would not accept eugenics movement came in Indiana in 1907. Dr. while serving as "Eugenics Associate" of the Harry Sharp, a surgeon at the reformatory in Psychopathic Laboratory of the Municipal Court of Jeffersonville, had performed vasectomies on 176 Chicago. As assistant director of the Eugenics Record inmates over an eight-year period. Convinced that Office, Laughlin used E.R.O. resources to publish sterilization was a safe and humane method of eugenic strategy manuals centering on the legal developments control, Sharp lobbied extensively. As a result, on in the campaign for eugenic sterilization. In 1922, March 9, 1907, the Indiana legislative passed the first Laughlin wrote and published Eugenical Sterilization law providing for the sterilization of "confirmed in the United States, a 502-page collection of state criminals, idiots, imbeciles, and rapists" in state laws, state court decisions, sample briefs, scientific institutions, upon recommendation by a special expert data, and several model eugenic sterilization laws. The panel.32 book was written for legislators, judges, administrators, 4

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 and citizens who "in the exercise of their civic rights board of directors. The inmate and his legal guardian and duties, desire to take the initiative in reporting for had to given notice of the petition, as well as the official determination and action, specific cases of opportunity of an evidentiary hearing before the board. obvious family degeneracy."37 In addition, if a patient decided to appeal a sterilization The approach advocated by Laughlin defended order, the sterilization order would be stayed during the eugenic sterilization as a matter of critical importance appeals stage. Nevertheless, many eugenicists worried to the survival of the human race. Laughlin eschewed that Virginia's law, like many other sterilization laws with punitive elements in favor of statutes statutes, contained a possible violation of the equal asserting the welfare of society over an individual's protection guarantee in that sterilization was limited to liberty. To support his argument that race betterment inmates of state institutions. was a proper rationale for exercising a state's police The test case that presented itself to eugenics power, Laughlin used the analogy of quarantine laws proponents arrived in June, 1924, with the commitment that took away personal liberty (in compliance with of a 17 year-old white girl named Carrie Buck to the due process) for the protection of society. Similarly, in State Colony for Epileptics and Feebleminded in Laughlin's view, the "surgical treatment" of Lynchburg, Virginia. Carrie's mother Emma was compulsory vaccination served as an adequate analogy already an inmate of the Colony. Carrie herself had just for the bodily invasion of sterilization. According to given birth to an illegitimate child, presenting Dr. A.S. Laughlin, Priddy (the Colony superintendent) with a perfect opportunity to test the new sterilization statute. The The state, then, must exercise its undoubted ideal patient for such a test case would be one suffering right and duty to control human reproduction from hereditary feeblemindedness, who exhibited along the lines of race betterment, and in so antisocial or immoral behavior, and who would doing is fully justified in putting into effect probably bear feebleminded children herself. Carrie such measures as, in keeping with the Bill of Buck appeared to fit the first criterion, and the fact that Rights and humane principles, will bring she had been committed for promiscuity that resulted about the desired ends.38 in pregnancy appeared to point favorably to the remaining two criteria. In one of the eugenics movement's few judicial Priddy petitioned for and received the order to successes prior to Buck, the Michigan Supreme Court sterilize Carrie Buck on Sept. 10, 1924.43 After Carrie's bought Laughlin's reasoning. Upholding the state's guardian appealed the order, Priddy retained Aubrey sterilization law, the court noted "Measured by its Strode, a prominent lawyer who wrote the sterilization injurious effect upon society, what right has any class statute, to represent the Colony during the appellate of citizens to beget children with an inherited tendency stage. I.P. Whitehead, a good friend of Strode's, served to crime, feeblemindedness, idiocy, or imbecility?"39 as counsel for Carrie Buck. At the circuit court level, In view of the setbacks experienced by the Strode presented the deposition testimony of Harry eugenics movement, and the uncertain constitutional Laughlin himself. Despite the fact that Laughlin never status of other sterilization statutes, it was clear that a met or examined Carrie, his "expert" opinion was that test case was needed to determine the validity of she was a "lowgrade moron" with a family history eugenic sterilization laws. Ironically enough, that test indicating "a very high frequency of feeble-minded case would come from Virginia, a state which had persons" and a child "supposed to be a mental resisted the first wave of sterilization laws by rejecting defective."44 Another witness, Dr. A.H. Estabrook of a bill introduced in 1910. By 1924, though, a carefully the Carnegie Institution, merely concluded that, "The drawn statute became the law in Virginia.40 The law blood is bad."45 Dr. A.S. DeJarnette, superintendent at authorizing sterilization noted that "heredity plays an another Virginia asylum, used Mendelian ratios to important part in the transmission of insanity, idiocy, explain the hereditary nature of feeblemindedness, imbecility, epilepsy and crime."41 It also stated that while Dr. Priddy himself testified that the "generally the "many defective persons" under the state's care accepted theory of the laws of heredity" proved that "would likely become by the propagation of their kind Carrie would produce socially inadequate offspring.46 a menace to society" if discharged or paroled, but that I.P. Whitehead never challenged any of this, and on these same individuals "might properly and safely be April 13, 1925, Judge Gordon of the Circuit Court of discharged or paroled" if rendered incapable of Amherst County upheld the sterilization order.47 reproducing.42 The Virginia sterilization statute also At this point, one must begin to question the provided for various procedural safeguards. Before the adversarial character of the proceedings. Indeed, Paul superintendent of a state mental institution could Lombardo has compellingly argued that the Buck case sterilize a patient, it was necessary to petition a special was in fact a friendly suit.48 Lombardo's analysis of 5

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 the correspondence of and among the principals in the legislature, agreeing that while the sterilization law case seems to support this. Whitehead was a longtime classified individuals, that classification could be friend and associate of Priddy and Strode who was viewed as "reasonable" and not violative of equal active in the lobbying for and planning of Virginia's protection.56 eugenic sterilization program. According to Lombardo, After being affirmed by Virginia's highest court, "the involvement of Irving Whitehead as counsel to the case of Buck v. Bell went to the U.S. Supreme Carrie Buck amounted to no less than collusion among Court on April 22, 1927.57 I.P. Whitehead reiterated Whitehead, Strode, and Priddy to insure that the his arguments that the statute violated due process and sterilization law would be upheld."49 equal protection, and warned that upholding the law Lombardo's research explains more than just the would inaugurate a "reign of doctors" and remove any ineffectiveness of Carrie Buck's counsel. It also limitations on a state's power "to rid itself of those explains why factual inconsistencies in the Colony's citizens deemed undesirable."58 Not only did case were overlooked. Although Strode maintained that Whitehead fail to challenge the alleged benefits of Carrie was the daughter of a feebleminded woman, Dr. limiting the procreative rights of the feebleminded, he Priddy admitted in correspondence to Harry Laughlin even conceded the state's right to do so. Whitehead that it wasn't even clear that she was a "Buck" and that merely stated that incarceration already served the there was some doubt as to Carrie's maternal stock.50 state's goals. At no time did Whitehead question the As far as Carrie herself is concerned, Strode's case eugenic basis of the sterilization law. Aubrey Strode relied on the fact she was a mental defective committed argued that the eugenical measure was not only a valid by her foster parent (a Mrs. Dobbs) for promiscuous exercise of the state's police power, but one which behavior which resulted in pregnancy. Lombardo's would actually enhance Carrie Buck's liberty. He research of Carrie's school records indicates that she maintained that sterilizing Carrie would "restore her to was quite normal.51 More importantly, other evidence the liberty, freedom and happiness which thereafter she (including an interview with Carrie Buck herself) might safely be allowed to find outside of institutional shows that Carrie became pregnant after being raped walls."59 Strode saw the law as justified not only by by Mrs. Dobbs' nephew.52 For the sake of the family society's duty "to protect its afflicted members from reputation, Mrs. Dobbs (who was never called as a themselves and itself from them," but also by "its witness) had Carrie committed. As far as the power and duty as to the coming generation in respect "evidence" that Carrie's child (Vivian) was mentally of the multiplication of socially inadequate defective, the sole basis for that conclusion was a defectives."60 nurse's observation that the baby was not as On May 2, 1927, the U.S. Supreme Court voted "responsive" as her own child.53 As Stephen Jay eight to one in favor of upholding the Virginia Gould's research points out, Vivian's school records sterilization law.61 Justice Oliver Wendell Holmes, Jr., indicate that she was a bright child, who earned a spot then 86 years old and in his twilight years on the Court, on her school's honor roll before dying of a childhood wrote the opinion of the Court. Holmes began by illness.54 summarizing the Virginia statute, observing that its Despite the complete lack of evidence to support guiding purpose was to eliminate the menace to society the Colony's sweeping conclusions concerning Carrie's posed by mental defectives by rendering them status as a potential parent of mentally defective incapable of procreation. Next, Holmes outlined the offspring, the case proceeded to the Virginia Supreme various procedural protections of the law, and Court of Appeals. Since Dr. Priddy had died in the concluded that since "every step in this case was taken interim period, his successor, Dr. John Bell, took up in scrupulous compliance with the statute and after the cause. Although Whitehead argued that the months of observation, there is no doubt" that Carrie sterilization statute was unconstitutional on due Buck received due process of law.62 Holmes then process, equal protection, and cruel and unusual continues, expressing what may seem to be punishment grounds, he never challenged the eugenic characteristic judicial restraint in deferring to the view of heredity presented by Aubrey Strode's legislature: "In view of the general declarations of the witnesses. In an opinion delivered by Judge Jesse West legislature and the specific findings of the court on November 12, 1925, the Court found that "Carrie obviously we cannot say as a matter of law that the Buck, by the laws of heredity, is the probable potential grounds do not exist, and if they exist they justify the parent of socially inadequate offspring, likewise result."63 affected as she is.55 The Court also ruled that the Most commentators agree that in view of the Virginia statute satisfied due process requirements and seriousness of the claims which Virginia rested on its did not constitute cruel and unusual punishment. "scientific beliefs," Holmes should not have simply Finally, the Court deferred to the wisdom of the state accepted this legislative finding of fact. The Court 6

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 should have considered whether there was a reasonable of an invasion of the body demanded by the welfare of basis for belief in the facts upon which the legislative society. Holmes evidently did not feel compelled to result was based. Since constitutionally protected examine his logic more closely. Preventing smallpox interests were involved (due process and equal could hardly be equated with preventing children; protection), legislation with considerable impact on vaccination gives the individual freedom from disease, such interests should have been more closely while sterilization restricts his or her freedom to examined. In view of the importance placed by the procreate. There was also a substantial difference in the Virginia legislature (and later counsel for the Colony) compulsory nature of the two health measures; while on hereditary theory and other "scientific" findings, the Carrie Buck had no option but sterilization, the Court should have examined these findings more Massachusetts Supreme Court had said, closely. Questions like "would the means chosen (sterilization) achieve the desired purpose (improving If a person should deem it important that society)?" and "are there less drastic measures vaccination should not be performed in his available to achieve this purpose?" should have been case, and the authorities should think it raised. otherwise, it is not in their power to vaccinate After disposing of the due process claim, Holmes him by force, and the worst that could proceeded to the real basis of his opinion: happen to him under the statute would be the payment of the penalty of $5.66 We have seen more than once that the public welfare may call upon the best citizens for Holmes' brutal flourish "Three generations of imbeciles their lives. It would be strange if it could not are enough," is one of his more frequently-quoted call upon those who already sap the strength remarks. Yet it betrays a lack of factual knowledge. of the state for these lesser sacrifices, often First of all, even the unreliable eugenic classification of not felt to be such by those concerned, in Carrie Buck (who was promoted to the sixth grade order to prevent our being swamped with before being withdrawn from school) and her mother incompetence. It is better for all the world, if Emma portrayed them as a "middle-grade moron" instead of waiting to execute degenerate (Carrie supposedly had a mental age of nine) and a offspring for crime, or to let them starve for "low-grade moron" (with a mental age under eight), their imbecility, society can prevent those respectively.67 On this Stanford Revision of the Binet- who are manifestly unfit from continuing Simon intelligence scale, "imbeciles" were ranked their kind. The principle that sustains below morons. In fact, this same intelligence test, compulsory vaccination is broad enough to administered to all Army draftees in World War I, cover cutting the Fallopian tubes. Jacobson v. showed that 47.3% of white soldiers and 80% of black Massachusetts, 197 U.S. 11. Three soldiers had a mental age of twelve or under.68 generations of imbeciles are enough.64 Although the test fell into disrepute, these results couldn't have mustered much support for Holmes' This is a far cry from Holmes' usual detached style of argument about the public welfare calling upon "the merely upholding a given statute by refusing to best citizens" in wartime. Moreover, Holmes' "three substitute his wisdom for that of that of the legislature. generations" argument ignores the lack of evidence By making an analogy to the demands of wartime, pointing to subnormal intelligence on the part of Holmes tries to establish the state's right to demand Carrie's daughter. anything short of life in peacetime. As other Holmes' closing remarks brushed aside the equal commentators have observed, this was not a typical protection argument by saying that equality of Holmes opinion, in which he might have dryly sterilization would steadily increase as asylum discussed previous holdings on the state police openings developed: power.65 Justice Holmes, as we will see, was already predisposed to eugenic views. As a result, his reference Of course so far as the operations enable to "being swamped with incompetence" echoes fears of those who otherwise must be kept confined race degeneration and a society overrun by rapidly to be returned to the world, and thus open the multiplying members of the "unfit." Posing the asylum to others, the equality aimed at will dramatic alternative of crime or sterilization, Holmes be more nearly reached.69 reflects the popular eugenicist belief in the hereditary nature of criminal tendencies. This answer to the equal protection theory is Justice Holmes also adopted Harry Laughlin's use problematic, to say the least. Earlier Holmes had stated of the compulsory vaccination analogy, as an example that the alternative to the law was starvation or 7

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 execution for crime due to imbecility. Yet confinement analysis of traits of the near-kin; it will also would preclude either of these; at worst there seems to direct the attention of the American people, be the alternative of crime (if one accepts Holmes' and through them of their legislative and belief in innate criminal tendencies) or confinement. administrative officers, toward the possibility Not only does Holmes assume that the "unfit" pose of preventing reproduction by family-stocks such a numerical threat that confining them in which are demonstrably degenerate in institutions would "sap the strength" of the state, but he hereditary qualities.76 ignores the fact that releasing the newly-sterilized does not render them free of criminal tendencies. The Eugenics Review applauded the "opinion of great Despite the faulty reasoning in Holmes' opinion brevity but extreme clarity," and even noted that there the Supreme Court endorsement of eugenic was a hereditarian explanation for such a significant sterilization stood. Carrie Buck was sterilized on decision since Mr. Justice Holmes was "the October 19, 1927; she left the State Colony shortly distinguished son of the distinguished physician, Oliver thereafter.70 In the wake of the Supreme Court's Wendell Holmes."77 The article discussed the case and decision, twenty states passed eugenic sterilization the Court's opinion, concluding that "the highest statutes in the next ten years; most of these laws were tribunal of the land had now determined once and for closely patterned after Virginia's law.71 These laws all time that society has the right to protect itself sanctioned sterilization operations on at least 60,000 against the procreation of those who will become a Americans; as Mark Haller points out, the national burden and a public charge."78 According to the sterilization rate climbed from 2 cases per hundred Eugenics Review, the Supreme Court's decision would thousand people in the 1920s to 20 cases per hundred prove "of vital interest to every physician in this thousand by the end of the 1930s.72 The Virginia law country" as well as to "all persons who are interested in alone authorized the sterilization of over 8,300 inmates the problems of eugenics and the betterment of the of state mental institutions between 1927 and 1972; it race."79 was finally repealed in 1981. This is not to say that Buck v. Bell was hailed by The Court's decision in Buck v. Bell had a clear all. Justice Holmes' own correspondence indicates a judicial impact. In 1928, the Supreme Court of Kansas strong negative response to the Court's decision. His cited Buck as precluding the argument that eugenic letters to Harold Laski refer to "the religious" being sterilization violated due process.73 Three years later, "astir",80 and to "cranks" calling him a "monster" who the Idaho Supreme Court wouldn't even allow itself a "might expect the judgment of an outraged God."81 doubt as to the validity of the eugenic theory: Although the eugenics movement largely died out in the 1930s (due to scientific advances in the field of . . . [There is] no doubt in our minds that genetics and growing disenchantment with the heredity plays a controlling part in the blight eugenics legislation and "racial purity" beliefs being of feeblemindedness. If there be any natural espoused in Nazi Germany), scholars today describe right for natively mental defective to beget Buck v. Bell as the peak of public acceptance of children, that right must give way to the eugenical theory. Other writers maintain that "with the police power of the state in protecting the eugenics movement at its height in 1927 the Court was common welfare.74 its prisoner,"82 that the evidence for eugenics was "too strong for the Court to resist."83 In reality, there was no It wasn't until the 1942 case of Skinner v. Oklahoma such public outcry in support of eugenics. In Virginia, that the U.S. Supreme Court again considered a neither the passage of the sterilization statute itself nor sterilization law.75 This time, less deference was shown the U.S. Supreme Court's decision merited mention by to the legislature, as a unanimous Court invalidated an the state's principal newspapers. Nationwide, the New Oklahoma statute authorizing the sterilization of York Times ran a small item about the Court's decision habitual criminals. However, Buck v. Bell has never on page nineteen.84 The "wisdom" of eugenics was not been overruled. accepted by any means, but rather was a matter of The response by eugenicists to the Buck decision considerable public debate. A typical article, written by was predictable. Harry Laughlin noted, Clarence Darrow in 1926, warned that if a state was granted eugenic authority, "those in power would The influence of this decision is wide-spread, inevitably direct human breeding in their own because - among other things - it will interests."85 encourage eugenical research in its efforts to Just as the Court's decision cannot be attributed to learn more about human heredity and better any public clamor for eugenic sterilization, it would how to predict quality of offspring from the also be incorrect to suggest that the Supreme Court 8

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 bowed to legal precedents and discussion. First of all, precedent, or the scientific validity of eugenic theory. the clear trend (in seven of the eight cases to try the It has been demonstrated that eugenics owed its validity of eugenic sterilization laws prior to Buck) success to the influence of lobbyists rather than was to rule such statutes unconstitutional.86 Moreover, overwhelming public support. It has also been shown eugenic sterilization statutes were the object of sharply that by 1927, eugenic sterilization statutes were falling critical attacks in the legal literature. Writing in the into disrepute among a growing number of lawyers and Journal of the American Institute of criminal Law and jurists. Moreover, by 1927 it was becoming clear even Criminology in 1913, prominent New York attorney to many eugenicists that theirs was a crusade based on Charles A. Boston began by restating the usual crude, outdated scientific principles and animated only constitutional arguments against such laws - equal a misguided sense of moral purpose. Although it protection, due process, and cruel and unusual becomes easier to understand the factual punishment.87 Boston went on to charge that inconsistencies in the case when one considers Irving legislatures had "accepted as established fact, the finest Whitehead's true purpose, the reason for the Court's shading in the laws of heredity, which are not yet particularly forceful opinion is less clear. As Part II of established as a fact in their very broadest outlines."88 this paper demonstrates, the result reached by the Court He argued that eugenic sterilization laws should be and the manner in which that decision was expressed "left behind in the cast-off junk of ignorant efforts, can only be understood by examining the role played with which the past is filled."89 by Justice Oliver Wendell Holmes, Jr. In addition to being challenged by members of the public and the legal community, many eugenic tenets II. had been repudiated by 1927 by the rest of the As other writers have suggested, the inadequacies scientific community.90 As genetic research of Justice Holmes' reasoning in the Buck v. Bell progressed in the 1920s, scientists realized that opinion can be attributed to the fact that he was writing feeblemindedness was not simply the result of from belief, and not merely upholding a form of social Mendelian ratios, and that social adequacy could not reform legislation for which he reserved a healthy possibly be measured by a single characteristic of an amount of skepticism. However, the extent and the individuals overall personality. Scientists had already sources of Holmes' belief in eugenics remain begun to disassociate themselves from the eugenics unexplored. The shocking, brutal tone of Holmes' movement, and even hardcore eugenicists like Walter opinion conjures up images of a society "swamped" by Fernald and Henry Goddard, whose early work did the menace of mental defectives breeding out of much to advance eugenic social policy, became control and committing crimes or starving. In order to convinced of their errors and recanted. As one prevent them from sapping the state's strength, eugenicist pointed out in 1923, "sacrifices" must be made, even at the cost of bodily mutilation or the loss of personal liberty. It is clear that the apparently final As brutal as this language was, Holmes' conclusions expressed some years back are correspondence indicates that he unwillingly softened no longer tenable. The problem is a vastly its tone for the final draft of the Buck opinion. In a more complex one than the popular heredity letter to Harold Laski, Holmes complained, chart of not so long ago made it. Nor are we in a position at present writing to form I am amused (between ourselves) at some of definite conclusions as to the degree of social the rhetorical changes suggested, when I menace that resides in the marriage and purposely used short and rather brutal words parenthood of so-called feebleminded for an antithesis . . . I am pretty persons.91 accommodating in cutting out every thought that I think important, but a man must be In fact, as Paul Lombardo points out, sterilization and allowed his own style. At times I have gone the eugenic argument supporting it had been too far in yielding my own views as to the condemned in a publication of the State Board of reason for the decision . . . this time, though I Public Welfare in Virginia in September, 1926.92 Yet had said, Never again, I did the same things this critical view, from an official body in the same in a milder form.93 state that had passed the eugenic sterilization measure, was ignored. Examination of Justice Holmes' original draft opinion The Supreme Court's opinion in Buck v. Bell, shows that the only apparent change was to eliminate contrary to the claims of other commentators, cannot the word "kill" in the phrase "kill degenerate offspring be attributed to public support for eugenics, legal for crimes" and substitute the word "execute."94 9

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Charles Evans Hughes' biographer points out that this Why Holmes believed so fervently in eugenics is was not an isolated incident: "Fearful of hidden a matter about which scholars can only speculate. As implications, the brethren frequently insisted on much as Holmes was convinced of hereditarian theory, stripping Holmes' opinions of their more fanciful he apparently came to this belief as the result of the images and seemingly reckless phrases."95 environment in which he came to maturity. Holmes The language reflects the fact that Buck v. Bell certainly could have seen himself as living proof of was not an ordinary case of Justice Holmes, but rather what eugenicists assumed. He was born into a socially was a marked departure from his usual style of judicial and intellectually prominent Boston Brahmin family, detachment. Eugenics was an important issue for son of the renowned poet and physician, Oliver Holmes. Writing to Lewis Einstein, he described the Wendell Holmes, Sr. The younger Holmes was Buck opinion as one that "gave me pleasure, exposed to many of Cambridge's leading intellectual establishing the constitutionality of a law permitting figures. Not the least of these was Holmes' father, who the sterilization of imbeciles."96 Writing to Harold had an abiding interest in hereditarian theory. In an Laski, Holmes referred to "constitutionality of a essay entitled "Crime and Automatism, " Holmes, Sr. Virginia act for the sterilizing of imbeciles" as "a discussed Galton's theory that "genius and talent are 97 burning theme." In another letter to Harold Laski, inherited" and applied it to the inheritance of criminal Holmes states that in delivering the decision in Buck, tendencies.100 Dr. Holmes concluded that "in most he "felt that I was getting near to the first principle of cases crime can be shown to run in the blood."101 real reform. I say merely getting near. I don't mean that Perhaps more important in a general sense, the younger the surgeon's knife is the ultimate symbol."98 Few if Holmes received his Harvard education at a time when any of the many vital issues Holmes confronted during Darwin's theory of evolution was becoming popular in his lengthy tenure on the Court merit this type of America. As Holmes commented to philosopher attention in his correspondence. Using eugenic Morris Cohen regarding his early intellectual influence. sterilization to prevent the unfit from "swamping" "The scientific way of looking at the world . . . was in society was a "burning theme," "the first principle of the air."102 real reform," and a source of "pleasure." The same In the same year (1861) that Holmes received his Justice Holmes who displayed skepticism of economic Harvard degree, he enlisted in what became the 20th reforms and social legislation (but would uphold the Massachusetts Infantry. The Civil War, for Holmes, legislature's right to experiment with them anyhow) proved to be a living illustration of Darwinian saw eugenic sterilization as an important social tool principles of struggle and survival. His unit that would save the country from degeneration. participated in many of the war's major actions, From among those writers who have suffering almost 75% casualties. Holmes himself was acknowledged Holmes' eugenic beliefs, there has yet to wounded five times, three of which were quite serious. emerge a detailed analysis of when these beliefs At Ball's Bluff in 1861 he took a musket ball in the became fixed in Holmes' ideology, or the reasons why, chest, just missing the heart and lungs. At the bloody or how these beliefs manifested themselves in Holmes' Battle of Antietam in 1862, Holmes was shot though work prior to the Buck v. Bell opinion. As far as the the neck. In 1863 he was wounded a third time, as first question - "when" - is concerned, Holmes shrapnel tore ligaments and splintered bone in his heel addressed the issue in some of his unpublished during the Battle of Fredericksburg. In between correspondence. Writing in 1912 to Lady Leslie Scott, campaigns, he endured scurvy, body lice, and Holmes said: dysentery like many other soldiers. In July of 1864, Holmes (who had risen from lieutenant to lieutenant- As to eugenics I don't exactly know what colonel) was finally too weak to perform his duties and your government could undertake if they was mustered out of the service. wanted to tackle it. But, as your probably Although Mark DeWolfe Howe contended that know, I have thought from before the days of "[w]ar did not make any fundamental change in Galton that it was the true beginning, Holmes' character,"103 Francis Biddle strikes closer to theoretically, of all improvement. The folly, the mark when he observes that "the impact and to my mind, of socialism is that it begins disillusionment of war was to haunt him and shape his with property instead of with life.99 character for the rest of his life."104 In wartime, where success was equal to survival, Holmes came to view Clearly, Justice Holmes was convinced of the benefits himself as a survivor, one of the "fittest." Holmes saw of eugenic policies even before Galton's theories Harvard friends, his social and intellectual equals, became intellectually fashionable. killed all around him. Yet Holmes struggled and survived, even while finding it "queer that I stand this 10

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 exposure and hard work better than many a stout have genius, is precisely the reflection that fellow who looks more enduring than I."105 The Civil makes me believe that it would be possible to War, the searing experience of Holmes's life, breed a race.110 hammered into him the lesson that all individual existence is a struggle even as it confronted him with In addition to being profoundly influenced by his the reality that a state will do everything possible to intellectual background and civil War experiences, preserve itself - even to the point of sacrificing its best Holmes was also motivated by many of the "race- young men.106 suicide" fears of his day. His correspondence and As a result of these wartime experiences, military speeches are replete with references to the danger of metaphors and battle imagery permeated virtually being "swamped" by other races and the necessity of every aspect of Holmes' thought. Life was a invigorating the white Anglo-Saxon race. In his 1895 "campaign", and the dominance of force behind state Memorial Day address "The Soldier's Faith," Holmes sovereignty was equated to "marching a conscript with rejoiced at the notion of the "sword-slashed faces" of bayonets behind to die for a cause he doesn't believe Heidelberg students and the dangerous sport of polo. In in." He would "fire off" an opinion and refer to the Holmes' view, such activities toughened up the best seemingly endless array of cases facing him by saying members of society: "when you have taken one trench there is always a new firing line beyond."107 Holmes' correspondence reveals If once in a while in our rough riding a neck that he even noted the anniversaries of his wounds: for is broken, I regard it, not as a waste, but as a example, an October 21, 1895 letter to Sir Frederick price well paid for the breeding of a race fit Pollock begins with a reference to being shot at Ball's for headship and command.111 Bluff while a Sept. 17, 1919 letter to James Bryce opens with the reminder "Antietam 57 years ago In a 1902 speech in Ipswich, Holmes returned to this today."108 theme of competition from other racial "stocks", saying Holmes alternated between looking back on the "It may be that we are to be replaced by other races Civil War as a struggle for survival in which he - by that come here with other traditions."112 Addressing virtue of living - emerged as one of the fittest, and the Harvard Law School Association of New York in viewing the war as a horrible form of selection which 1913, Holmes declared that "competition from new took the lives of many of the best soldiers (including races will cut deeper than working men's disputes and many of Holmes' friends). For Holmes, war may have will test whether we can hang together and fight.113 been a necessary element of the "struggle for life," but The only hope, Holmes felt, was in breeding a race it was one which wasted a great deal of the "germ- through eugenics: plasm" that might have otherwise improved the race. Holmes agreed with Frederick Pollock, who stated in a I do not pin my dreams for the future to my 1920 letter to the justice: country or even to my race. I think it possible that civilization somehow will last as long as My complaint against war is not that it kills I care to look ahead perhaps with smaller men but that is kills the wrong ones, taking numbers, but perhaps also bred to greatness an undue proportion of the strong and and splendor by science . . . And so beyond adventurous and leaving too many weaklings the vision of battling races and an and shirkers, thus working a perverse impoverished earth catch a dreaming glimpse artificial selection of those who are least of peace.114 fitted to adorn or improve the commonwealth.109 Although one is tempted to discount such statements as mere off-the-bench musings by Justice Holmes, it is It was this observation - that men fit for military important to remember that the jurist's non-legal work service were of a "better type" than those who were only concerned topics of great significance to him. As unfit and unwilling to serve, and could therefore he told James Bryce, "I rarely have strayed beyond the benefit the human race in the long run - that lay at the law - only indicating a few fundamental beliefs in a root of Holmes' hope for eugenics. As the justice stated very brief essay or two or an occasional speech."115 in answering Pollock's letter, The earliest of these essays indicating a eugenicist tone to Holmes' thinking can be found in his 1873 American Your remark that the men fit for military Law Review comment on a gas-stokers' strike in service on the whole are the better type, non England. Toward the end of his article, Holmes obstant the possibility that a weakling may questions the idealism of legislation which purports to 11

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 be for "the greatest good of the greatest number" of the legal measures, such as child labor and maximum hour population: rules, that would combat such deterioration:

Why should the greatest num ber be I can understand say ing, whatever the costs, preferred? Why not the greatest good o f the so far as it may be, we will keep c ertain most intelligent and the most h ighly stains out of our blo od. If before the English developed? T he greatest g ood of a m inority factory acts the race was running down of our generation may be the greatest good of physically I can understand taking the the greatest number in the long run.116 economic risk of passing those acts.121

According to Holm es, preventing the b reeding of the Justice Hol mes also alluded briefly to this fear in his unfit would have to be at the heart of any meaningful 1922 dissent ing opi nion in Adkins v. Children' s political reform: "Co mmunism would no m ore get ri d Hospital, in which he wanted to up hold a m inimum- of the difficulty than any other system, unless it limited wage law for women since it would "remove or put a stop to the propagation of the species." 117 conditions leading to ill health, imm orality and the Holmes added that "it may be dou bted whether th at deterioration of the race."122 solution would not be as disagreeable as any other."118 Holmes' legal essays and speeches, it can be seen, In other words, Holmes ad vocated not only preference reveal much of the race degeneration concerns that of the m ost valuable me mbers of s ociety, but a lso manifested the mselves in the Buck v. Bell opinio n, measures that would cut down the num bers of the least especially in the worries of society being "swa mped" valuable members as well - 54 y ears before Buck v. within competence. But the rapid breeding of the unfit Bell. was only part of Holm es' concern. The fact that the se Holmes continually retur ned to the notion of mental defec tives would pass on hereditary crim inal eugenics in his essay s. In a 1915 article in the Illinois tendencies to future gene rations, a concept th at Law Review that Holmes considered important enough appeared in Buck as well, was also assumed in Holmes' to include in a volume of his collected work, the justice legal writings. For example, in his 1897 essay "The declared eugenic values to be the key to bringing about Path of the Law," Holmes states: meaningful change in society: If the typical criminal is a degenerate, bound I believe that the wholesale social to swindle or to murder by a seate d and regeneration which so many n ow seem to organic nece ssity as that which makes the expect, if it can be helped by conscious, co- rattlesnake bite, it is idle t o talk of deterring ordinated h uman effort, cannot be affected him by the classical method of imprisonment. appreciably by ti nkering with the institution He must be got rid of; he cannot be improved of propert y, but onl y b y t aking in han d life or frightened out of his structural reaction.123 and trying to build a race. That would be my starting point for an ideal for the law.119 Holmes' personal correspondence indicates a preoccupation with the twin goals o f the eugeni cs Justice Hol mes returned to this t heme in his 1923 movement: "buildi ng" a b etter race through selective introduction t o a book entitled The Rational Basis of breeding of the "fittest" members of society , whil e Legal Institutions . Holmes de clared that it was preventing race degener ation by preventing the unfit pointless for society to bother altering property from procreating. Writing to Lewis Einstein in 1910 relations when the even more pressing problem of t he on the subje ct of populat ion, Holm es felt that "with 124 rapidly-multiplying unfit existed: less quantity we might think m ore of quality ." A 1912 letter to Franklin Ford expressed Holmes' opinion The notion that we can s ecure an eco nomic that reform movements, in order to be meaningful, paradise by changes in property alone see ms should consi der eugenic measures. He wrote "I think to me twad dle. I can understand better that if socialism ever is to be a serious thing . . . it must legislation that aims to im prove the quality begin not with propert y but with life, and that as it is than to increase the quantit y of the now every social im provement is expended in an 120 125 population. increase of births." A letter to Lewis Einstein five years later e xpressed the sa me sentiment in a more Holmes continued in a simila r vein, reflecting his fear brutal fashion: "I have too profound a contempt for the of race dege neration as he de monstrated approval of bases of all socialisms not prepared to begin with life

“Let Her Be Sterilized:” Buck V. Bell, The American Eugenics Movement, and the Roots of the Right to Privacy Chapter 13 rather than with property and to kill everyone below I should be glad . . . if it could be arranged the standard."126 that the death should precede life by This last letter points toward an intriguing aspect provisions for a selected race, but we shall of Holmes' personal correspondence. Justice Holmes' not live to see that. However, I dare say that references to breeding a new race and killing off the all this is in the air.134 unfit increase in both frequency and fervor in the decade or so prior to the Buck v. Bell case. Holmes alternated between this "positive eugenics" Interestingly enough, Holmes' steadily mounting belief of breeding a select race, and the "negative concerns over eugenic goals coincide with his first eugenics" of preventing the unfit from propagating in reading of Thomas Malthus' work An Essay on the his letters. As he wrote to Chinese legal scholar John Principle of Population (1798).127 Holmes' famed C.H. Wu, Black Book of his yearly readings indicates that he first read this treatise on the dangers of overpopulation I believe that, Malthus was right in his during August of 1914. Justice Holmes' interest in the fundamental notion, and that is as far as we book was deep enough that he kept two copies of the have got or are likely to get in my day. Every book, one at his residence in Washington, D.C. and society is founded on the death of men . . . I another at his summer home in Massachusetts. think it a manifest humbug to suppose that Malthus' ideas had a profound impact on Justice even relative universal bliss is to be reached Holmes; the jurist proclaimed himself "a devout by tinkering with property or changing forms Malthusian" in one letter.128 Elsewhere, Holmes of government so long as every social declared, "I look at men through Malthus' glasses - as improvement is expended in increased and like flies - here swept away by a pestilence - there unchecked propagation. I shall think multiplying unduly and paying for it."129 Holmes had socialism begins to be entitled to serious an intellectual respect for Malthus that bordered on treatment when and not before it takes life in reverence; at one point he refers to him as "Saint hand and prevents the continuance of the Malthus,"130 and at another he laments, "I wish his unfit.135 teaching in its substance were more taken to heart.131 According to Holmes, economic reforms were mere For Holmes, moral deliberations were outweighed by "humbugs" which lived on in the present, fallacies the Malthusian scheme he perceived as crucial to which Malthus "had ripped the guts out," "exploded," society's future. He commented to Laski, "As it seems or "busted' long ago.132 The only true solution to the to me that all society has rested on the death of men world's ills was to take immediate action to prevent the and must rest on that or on the prevention of the lives continuance of the less eugenically worthy members of of a good many, I naturally shrink from the moral tone. the population. It is easy to conceive of Justice Holmes In short, I believe in Malthus - in the broad - not - the old soldier who had witnessed firsthand the bothering about details."136 Holmes considered social carnage of the Civil War, and the childless Boston welfare reforms futile in the face of ever-multiplying Brahmin who observed incoming waves of immigrants numbers of society's unfit. Unlike the long-term nature with "an old man's apprehensions" for the future of of most reforms, the benefits of eugenic sterilization Anglo-Saxon "stock" - reading Malthus against the could be seen in the very next generation. The backdrop of the First World War (and later, the frustration Holmes felt at economic and social reforms increasing momentum of the eugenics movement) and that failed to "take life in hand" is evident in another deciding that there was only one possible way for letter to Laski: society to consciously take its "destiny" in its hands. As he observed in a 1922 letter to Harold Laski, "all One can change institutions by a fiat but society rests on the death of men." He added, "if you populations only by slow degrees and as I don't kill 'em one way you kill 'em another - or prevent don't believe in millennia and still less in the their being born. Is not the present time an illustration possibility of attaining one by tinkering with of Malthus?"133 property while propagation is free and we do Justice Holmes' impatience with economic all we can to keep the products, however bad, reforms intended to improve society continued to alive, I listen with some skepticism to plans mount, and his correspondence during the pre-Buck for fundamental amelioration. I should expect period reflect this growing concern as well as his belief more from systematic prevention of the in a eugenic solution. After observing that "every survival of the unfit.137 society rests on the death of men," Holmes declared to Pollock, 13

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In short, one can easily see the increasingly eugenicist questioned, the eugenics movement found an ally in tone of Holmes' off-the-bench writings and personal Justice Holmes. The intellectual and emotional correspondence. While at first he didn't expect his predispositions of Holmes prevented him from ideas about "breeding a select race" and preventing the seriously considering any other possible outcome in continuance of the unfit" to be popular in his day, Buck v. Bell; belief, rather than logic, facts, or Holmes later observed that the eugenic mood was "in precedent, dictated the result. To borrow Justice the air." When Buck v. Bell arrived on the Supreme Holmes' own words, the opinion in Buck v. Bell was Court's docket in 1927, after years of Holmes' not a response to the "felt necessities of the time," but increasingly evident concern over the degeneration of instead was a result of the "prejudices which judges the race, Justice Holmes recognized an opportunity to share with their fellow-men."138 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 14

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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.

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

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).

24. M. Haller, supra note 10, at 124.

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).

30. M. Haller, supra note 10, at 50.

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 16

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(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.

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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.

68. M. Haller, supra note 10, at 104.

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).

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

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.

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

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.

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

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).