“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 i “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