War Against the Weak Read online

  Carrie’s guardian, Shelton, was then asked by Strode to appeal the case “in order that we may test the constitutionality through our state courts, even to the Supreme Court of the United States.” Shelton then secured ostensibly independent counsel to represent the eighteen-year-old in a legal challenge scheduled for November 18, 1924. Attorney Irving Whitehead was selected to represent Carrie. Whitehead was no stranger to the colony, however, and to many the arrangement seemed little more than a collusive defense. He was, after all, one of the original three directors appointed by the governor to manage the colony when it was established in 1910. Whitehead and his fellow trustees appointed Priddy as their first superintendent. Later, Whitehead had represented the institution on the State Board of Hospitals. In his official capacity, Whitehead had personally endorsed the sterilizations of some two dozen women, including the two Mallory women, and had even lobbied the Virginia legislature for broader legal authority. A building in the colony complex erected the year before was actually named after him. The Wednesday before the trial, Priddy recommended Whitehead for a government position.95

  Yet it was Whitehead, a staunch eugenicist, founding father of the colony and an advocate of sterilization, who was to champion Carrie Buck’s defense.

  To bolster the argument that Carrie represented a biological menace, attention next fell on little Vivian. If the infant could somehow be deemed mentally defective, the Bucks would represent three generations of imbeciles-a clear threat to the state. Priddy asked a Red Cross social worker to send evidence certifying the infant as feebleminded, and was almost certainly startled to hear back from the social worker: “I do not recall and am unable to find any mention in our files of having said that Carrie Buck’s baby was mentally defected.”96

  Priddy dispatched a note to eugenic activist Dr. Joseph Dejarnette, superintendent of the State Hospital at Staunton. Dejarnette would be called as a state expert witness. “A special term of the Court of Amherst will be held… November 18, 1924 to hear… the case of Carrie Buck’s child, on which the constitutionality of the sterilization law depends. It is absolutely necessary that you be present and I would suggest you read up all you can on heredity like [the] jukes, callikaks [sic] and other noted families of that stripe.” Priddy added, “I want you to help me in this matter by going over to Charlottesville… to get a mental test of Carrie Buck’s baby…. The test you will make will be the usual one in line with the inclosed [sic] test sheet. We are leaving nothing undone in evidence to this case…. I am enclosing you a letter from Dr. Laughlin and think you will need it. Please return the inclosures [sic] as Col. Strode may want them for his files, he having had the correspondence with Dr. Laughlin.”97

  Priddy also assured Dejarnette that even though Vivian was only a few months old, she could still be deemed unfit. “We have an advantage,” wrote Priddy, “in having both Carrie Buck and her mother, Emma, as inmates of this institution.” Once more, the emphasis was on three generations.98

  Shortly thereafter, Carrie’s seven-month-old daughter Vivian was examined by a social worker. In a subsequent hearing the social worker was asked, “Have you any impression about the child?” Emphasizing the word probabilities, the social worker replied, “It is difficult to judge probabilities of a child as young as that, but it seems to me not quite a normal baby.” In reply, she was led, “You don’t regard her child as a normal baby?” The social worker cautiously responded, “In its appearance-I should say that perhaps my knowledge of the mother may prejudice me in that regard, but I saw the child at the same time as Mrs. Dobbs’ daughter’s baby, which is only three days older than this one, and there is a very decided difference in the development of the babies. “99

  Once more, the social worker was prompted, “You would not judge the child as a normal baby?” The social worker answered, “There is a look about it that is not quite normal, but just what it is, I can’t tell.” That was enough for the judge. Vivian was deemed defective, like her mother and grandmother before her.100

  Priddy also requested expert eugenical testimony from Laughlin, who would not be able to travel to Virginia for the trial but agreed to file a deposition. He asked Priddy for Carrie’s genealogy to help him prepare a proper eugenical verdict. Priddy had nothing. “As to our test case,” Priddy wrote Laughlin, “I am very sorry I cannot make you out a genealogical tree such as you would like to have, but this girl comes from a shiftless, ignorant and moving class of people, and it is impossible to get intelligent and satisfactory data….”101

  Laughlin’s deposition simply echoed Priddy’s offhand words. “These people belong to the shiftless, ignorant and moving class of anti-social whites of the South,” wrote Laughlin. His expert opinion went on: “Carrie Buck: Mental defectiveness evidenced by failure of mental development, having a chronological age of 18 years with a mental age of 9 years, according to Stanford Revision of Binet-Simon Test; and of social and economic inadequacy; has record during life of immorality, prostitution and untruthfulness; has never been self-sustaining; has had one illegitimate child, now about six months old and supposed to be mental defective.”102

  Laughlin’s deposition then dispatched the mother, Emma Buck. “Mental defectiveness evidenced by failure of mental development,” Laughlin averred, “having a chronological age of 52 years, with a mental age, according to Stanford Revision of Binet-Simon Test, of seven years and eleven months (7 yrs. 11 mos.); and of social and economic inadequacy. Has record during life of immorality, prostitution and untruthfulness; has never been self-sustaining, was maritally unworthy; having been divorced from her husband on account of infidelity; has had record of prostitution and syphilis…. “103

  Ultimately, Laughlin connected the dots, declaring that Carrie’s “one illegitimate child, [was also] considered feeble-minded.”104 Three generations.

  The judge took the case under advisement. While awaiting a decision, Priddy died of Hodgkin’s disease, a cancer of the lymphatic system. Priddy’s assistant, J. H. Bell, replaced him as defendant. Thereafter the case became known as Buck v. Bell.105

  On April 13, 192 5, the Amherst County Circuit Court upheld the original decision of the colony’s special board. Carrie’s attorney, Whitehead, immediately appealed the decision to the Virginia Court of Appeals. He petitioned on three Constitutional points: first, deprivation, without due process, of a citizen’s rights to procreate; second, violation of the Fourteenth Amendment of the Constitution, providing for due process; and third, a violation of the Eighth Amendment of the Constitution, proscribing cruel and unusual punishment. Whitehead’s brief was brief indeed, just five pages long. On the other hand, colony attorney Strode filed a forty-page brief carefully documenting the state’s police powers and its need to protect public health and safety.106

  Virginia’s Court of Appeals upheld the colony’s decision to sterilize Carrie, denying all claims of cruel and unusual punishment or lack of due process.107 For Carrie, and the future of sterilization, there was nowhere to go but up. The circle of friends staging a collusive Constitutional challenge, papered wall to wall with documented safeguards and procedural rectitude, were now ready for their final step. Carrie’s case was appealed to the highest court in America, the United States Supreme Court. The colony was confident. The board minutes for December 7, 192 5, record: “Colonel Aubrey E. Strode and Mr. I. P. Whitehead appeared before the Board and outlined the present status of the sterilization test case and presented conclusive argument for its prosecution though the Supreme Court of the United States, their advice being that this particular case was in admirable shape to go to the court of last resort, and that we could not hope to have a more favorable situation than this one.”108

  If the Supreme Court would uphold Carrie Buck’s sterilization, the floodgates of eugenic cleansing would be opened across the United States for thousands. Carrie’s destiny, and indeed the destiny of eugenics, rested upon nine men-and most heavily on the one man who would ultimately write the court’s opinion. That man wa
s Justice Oliver Wendell Holmes Jr., considered by many to be America’s clearest thinker and most important judicial authority.109

  * * *

  Oliver Wendell Holmes Jr. lived a life innervated by the great men of literature, propelled by his personal acts of courage, and eventually gilded by the judicial preeminence thrust upon him. He was the best America had to offer. Born in Massachusetts in 1841, his father was a famous physician, poet, and essayist. He had achieved literary esteem from his satirical columns in the Atlantic Mo~thly, later collected for the anthology Autocrat of the Breakfast Table. Young Oliver grew up in the company of his father’s circle of literati, including Henry Wadsworth Longfellow, Ralph Waldo Emerson, and Nathaniel Hawthorne. Herman Melville was a neighbor at the Holmes’ summerhouse.110

  It was the law, however, that would capture the imagination of Oliver Wendell Holmes Jr. Judges and attorneys had peopled the Holmes family tree for three centuries. A maternal grandfather had sat on the Supreme Judicial Court of Massachusetts.111

  Holmes was a Harvard scholar, but he had been brave enough to join the rush to war in 1861, even before taking the final exams needed for graduation. He joined the Twentieth Massachusetts Volunteers, known as the Harvard Regiment. He fought valiantly and was wounded three times, once in the chest at Ball’s Bluff, once in the leg at Chancellorsville and once through the neck at Antietam during the single bloodiest day of the war. Some thought the scholar-turned-soldier fought to test his own manliness; others suggested it was for” duty and honor. “112 It was probably both.

  Certainly, Holmes achieved hero status. One legend claims that when President Lincoln visited Fort Stevens, near Washington, D.C., Holmes had served as his escort. At some point the president stood up to get a better view of something, and a Confederate soldier promptly shot at his stovepipe hat. Holmes dragged the president down, admonishing, “Get down, you damn fool!” Far from insulted, a grateful Lincoln replied, “Goodbye, Captain Holmes. I’m glad to see you know how to talk to civilians.”113

  Even amid the wounds of war, Holmes never lost his fascination with the great thinkers. While recovering from injuries sustained at Chancellorsville, Holmes read the latest philosophical treatises. After the war, he returned to his beloved Harvard to earn a law degree and write legal theory.114

  Soon, Holmes’ rapier-like pronouncements on the purpose of American law as a champion of the people’s will began to shape legal thought in the nation. He saw the law as a living, organic expression of the people, not just a sterile codex. “The life of the law has not been logic: it has been experience,” Holmes lectured. “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”“115

  His rise was rapid. In March of 1881, Holmes’ provocative lectures on the nature of law were compiled into an anthology, The Common Law. It was an immediate success. Within ten months of the book’s publication, in January of 1882, Holmes was elected a Harvard law professor by the university faculty. His reputation as an authority on jurisprudence widened. On December 8 of that same year, before serving his first full year as a professor, the governor of Massachusetts sent an urgent request for Holmes to leave Harvard and assume a seat as associate justice on the Massachusetts Supreme Court. So pressed was the governor that he implored Holmes to reply by 3 :00 P.M. of the same day. Holmes replied on time and accepted the position. In 1899, Holmes was appointed chief justice of the Massachusetts Supreme Court.116

  In 1902, President Theodore Roosevelt, impressed with Holmes’ growing juridical prestige, appointed Holmes to the U.S. Supreme Court. There, Holmes assumed a legendary status as a defender of the Constitution and proud expositor of unpopular opinions that nonetheless upheld the rule of law. For more than a quarter century, his name was virtually synonymous with the finest principles of the legal system. During his tenure on the highest bench, he wrote nearly one thousand valued opinions.117

  Holmes also became famous for powerful dissents, 173 in all. Many championed and clarified the most precious elements of free speech. In one such dissent, he argued “the ultimate good desired is better reached by free trade in ideas-that the best of truth is the power of the thought to get itself accepted in the competition of the market…. “ In 1928, he enunciated the lasting precept: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought we hate.” Yet Holmes was wise enough to assert that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”118

  Indeed, in 1931, his ninetieth birthday celebration would be an event for the nation, broadcast over the Columbia Radio System. Speeches lauded him as “America’s most respected man oflaw.”119

  Into the hands of Oliver Wendell Holmes, defender of the noblest ideal of American jurisprudence, was Carrie Buck commended.

  Buck v. Bell would be decided in May of 1927. But the eighty-six-year-old Holmes was in many ways defined by the Civil War and ethically shaped by the nineteenth century. While recovering from the wounds of Chancellorsville, his reading included Spencer’s Social Statics, the turning-point tract that advocated social Darwinism and so significantly influenced Galtonian thought. Spencer argued the strong over the weak, and believed that human entitlements and charity itself were false and against nature. Indeed, Holmes’ 1881 lecture series in The Common Law also asserted that the idea of inherent rights was “intrinsically absurd.”120

  Moreover, the warrior-scholar seemed to believe that “might makes right.” In his essay entitled “Natural Law,” Holmes defined truth. “Truth,” he declared, “was the majority vote of that nation that could lick all others.”121 1n a graduation speech to Harvard’s class of 1895, Holmes declared the sanctity of blindly following orders. “I do not know what is true,” he told the audience. “I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt… that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause he little understands, in a plan of a campaign of which he has no notion, under tactics of which he does not see the use. “122

  While Holmes’ influential Supreme Court opinions and dissents exemplified and eloquently immortalized the highest virtues of American jurisprudence, his private exchanges reveal a different man. Holmes reviled “do-gooders” and in 1909 he quipped to a friend, “I doubt if a shudder would go through the spheres if the whole ant-heap were kerosened.” In 1915, writing to John Wigmore, dean of Harvard Law School, Holmes sneered at “the squashy sentimentalism of a big minority” of people, who made him “puke.” He was similarly nauseated by those “who believe in the upward and onward-who talk of uplift, who think… that the universe is no longer predatory. Oh, bring me a basin.”123

  In the years just prior to receiving Buck v. Bell, Holmes expressed his most candid opinions of mankind. In 1920, writing to English jurist Sir Frederick Pollack, Holmes confessed, “Man at present is a predatory animal. I think that the sacredness of human life is a purely municipal idea of no validity outside the jurisdiction. I believe that force, mitigated so far as it may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of world I see no remedy except force.”124

  He was fond of a certain slogan, and in June of 1922 he repeated it to British scholar and future Labor Party Chairman Harold J. Laski. “As I have said, no doubt, often, it seems to me that all society rests on the death of men. If you don’t
kill ‘em one way you kill ‘em another-or prevent their being born.” He added, “Is not the present time an illustration of Malthus?”125

  In 1926, Holmes again confided to Laski, “In cases of difference between oneself and another there is nothing to do except in unimportant matters to think ill of him and in important ones to kill him.”126 Shortly thereafter, Holmes wrote Laski, “We look at our fellow men with sympathy but nature looks at them as she looks at flies…. “127

  The other men of the Supreme Court included Justice Louis Brandeis, the eminent Jewish human rights advocate. Another was the racist and anti-Semite James Clark McReynolds, who refused to even sit or stand next to Brandeis. The chief justice was former president William Howard Taft.128

  On May 2, 1927, in the plain daylight of the Supreme Court, with only Justice Pierce Butler dissenting, Justice Holmes wrote the opinion for the majority.

  Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the circuit court, in the latter part of 1924. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard… without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who if now discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, &C.129

  Holmes’ opinion summarized the extensive procedural safeguards Virginia had applied, and concluded, “There is no doubt that in that respect the plaintiff in error has had due process of law.”130 He continued, and in many ways quoted Laughlin’s model eugenical law verbatim.