PART 2 OF 2
Behaviors, mannerisms, and personal attributes that we now understand to be shaped by environment were all deemed eugenic qualities. "When we look among our acquaintances," Davenport wrote, "we are struck by their diversity in physical, mental, and moral traits ... they may be selfish or altruistic, conscientious or liable to shirk ... for these characteristics are inheritable .... " [63]
In painstakingly compiled family trait booklets, each numbered at the top right for tracking, the most personal and subjective measurements were recorded as scientific data. Family trait booklet #40688, of the Bohemian farmer Joseph Chloupek and his Irish wife Mary Sullivan, was typical. Question 12 asked for "special tastes, gifts or peculiarities of mind or body." For Chloupek, his traits were noted as "reading, affectionate, firm." His wife was noted as "very religious ... broad minded in her religious attitude toward others." The rest of the family was similarly assessed, including Chloupek's mother, Eugenia, who was marked as a "good mother." [64]
Approximations were frequently entered as authentic scientific measurements. Question 13 called for the height either in inches, or, if preferred, with any of four notations: "very short, short, medium tall, very tall." Question 15 recorded hair color as "albino, flaxen, yellow-brown, light brown, medium brown, dark hair, black." Question 17 asked for the individual's skin to be described as "blond, intermediate, brunette, dark brown, black Negro, yellow, yellow-brown or reddish-brown." Question 26 asked for visual acuity, and the choices were "blind, imperfect, strong, or color blind"; in the case of the Chloupek family, the most common response was "good." [65]
A second genealogical tool, the family folder, recorded such eugenic "facts" as "participation in church activities" and "early moral environment." Special areas were set aside for notations as to whether the individual was known for "interest in world events or neighborhood gossip," or "modesty," or whether the person "holds a grudge." Question fifty-six asked for an evaluation of the individual's "optimism, patriotism, care for the good opinion of others." [66]
In ERG Bulletin #13, How to Make a Eugenical Family Study, coauthored by Davenport and Laughlin, field workers and information recorders were informed that eugenic authorities would explain the "eugenical meaning of the facts recorded." [67]
Even within the accepted parameters, the data was often only approximated. Heights for several dozen Jewish children were charted in one report with a special entry, "These weights recorded by nurses ... are considered by Dr. Cohen as more accurate than those recorded on March 20." Physician Brett Ratner submitted extensive physical measurements of newborns, with a caveat. "The sheet ... [includes] the length," he explained, "which is taken by the attending doctor by suspending the child by its legs, which is of course very inaccurate, and the chest was also done by the attending physician. Therefore, I cannot vouch for the chest and length measurement. The weights, however, are all absolutely accurate." [68]
Often, the science was filtered through personal animus, colored language and even name-calling. Character flaws were frequently accentuated in clinical eugenic descriptions, almost as if to pass the reader a cue. "James Dack was commonly known as 'Rotten Jimmy,'" read one typical description. "The epithet was given because of the diseased condition of his legs ... although the term is said to have been equally applicable to his moral nature." No wonder Goddard admitted that in writing his revered eugenic text on the Kallikak family, "We have made rather dogmatic statements and have drawn conclusions that do not seem scientifically warranted by the data. We have done this because it seems necessary to make these statements and conclusions for the benefit of the lay reader .... " In Vermont, a careful and methodical statewide survey condemned one man as eugenically unfit based on the genetic datum that he was "a big hopeless good for nothing." [69]
Davenport and Laughlin brashly predicted, "The day will yet come when among the first questions, asked by an employer of the applicant for a position, will be those relating to the occupations of his kin and the success they have had in such occupations."
Correcting the American ethic with a eugenic voice, they promulgated the stunning admonishment, "There are those who adhere to the obviously false doctrine that men are born equal and therefore it really doesn't matter who marries whom." [70]
The men and women of eugenics wielded the science. They were supported by the best universities in America, endorsed by the brightest thinkers, financed by the richest capitalists. They envisioned millions of America's unfit being rounded up and incarcerated in vast colonies, farms or camps. They would be prohibited from marrying and forcibly sterilized. Eventually -- perhaps within several generation -- only the white Nordics would remain. When their work was done at home, American eugenicists hoped to do the same for Europe, and indeed for every other continent, until the superior race of their Nordic dreams became a global reality.
Yet the very first sentence of the United States Constitution protected future generations. "We the People of the United States, in Order to form a more perfect Union, establish Justice ... secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution." [71] Posterity would be the monumental issue over which the forces of eugenics struggled. To eugenicists, the future of America and humanity itself was at stake.
In 1924, they would wage a pitched battle against a lone adversary. This adversary would not be a crusading journalist or an outspoken politician, but rather a helpless Virginia teenager named Carrie Buck. Declared feebleminded, she was actually a good student in a family of good students. Called a menace to society and to the future of mankind, she was actually just poor white trash from the back streets of Charlottesville, Virginia. This simple yet often eloquent girl would make the perfect test case. She was selected for exactly this reason.
***
Carrie Buck's mother, Emma, was one of Charlottesville's least respected citizens. Widowed and worthless, living on the margins of society, Emma was deemed a perfect candidate for feeblemindedness. After World War I, Virginia had a well-established policy of sweeping its social outcasts into homes for the feebleminded and epileptic. In Virginia, the two conditions, feeblemindedness and epilepsy, were virtually synonymous. They were also synonymous with another diagnosis, shiftlessness, that is, the genetic defect of being worthless and unattached in life. [72]
On April 1, 1920, Emma was hauled before a so-called Commission on Feeblemindedness. Justice of the Peace C. D. Shackleford convened the very brief hearing required. Physician J. S. Davis conducted the examination, referred to on the form as "an inquisition." The state's form enumerated sixty pointed questions. Question two, under Social History and Reaction, asked if Emma had ever been convicted of a crime. Emma's response: "Prostitution." In those days any woman might be charged with prostitution, whether for actually selling her body or simply for conducting herself in a fashion morally repugnant to the local authorities or even to the cop on the beat. Question eighteen, under Personal and Developmental History, asked if Emma had any diseases. She responded that she had syphilis. Question eight, under Physical Condition, asked specifically if Emma had ever had syphilis, to which her response was yes. Question nine, also under Physical Condition, asked if any venereal disease was present, and for the third time Emma confirmed that she had had syphilis. As to her moral character, the hearing officials wrote "notoriously untruthful." Indeed, question five, under Social History and Reaction, asked whether she had "conducted ... herself in a proper conjugal manner." The examiners wrote "No." [73]
A few minutes later, Emma was officially deemed feebleminded. Shackleford signed the order of commitment, declaring she was "suspected of being feebleminded or epileptic." Five days later, Emma was driven to the Colony for Epileptics and Feebleminded. There she was consigned to Ward Five. She would remain at the colony for the rest of her life. [74]
Years before, in 1906, when Emma was still married, she had given birth to a daughter, Carrie. When Emma's husband died, the widow drifted into the social fringes of Charlottesville. At age three, Carrie was removed from Emma's custody and placed with another family. There were no formal adoption proceedings. Charlottesville peace officer J.T. Dobbs and his wife simply took the child into their Grove Street house. The Dobbses had a child of their own, approximately Carrie's age. Mrs. Dobbs needed extra help with the chores. Carrie was good at her chores, and also did well in school. School records show her performance was "very good -- deportment and lessons." But when Carrie was in sixth grade, the Dobbses withdrew the girl from school so she could concentrate on the increasing load of housework -- not only for their home on Grove Street, but for others in the neighborhood that Carrie was "loaned" to. Although Carrie never felt like she was a part of the Dobbs family, she was happy to be there. She recalled being obedient, and always considered herself "a good girl." [75]
One day in the summer of 1923, seventeen-year-old Carrie was discovered to be pregnant. She explained that she had been raped. "He forced himself on me," Carrie later recollected, "he was a boyfriend of mine and he promised to marry me." Years later, she would accuse a Dobbs nephew of being the rapist. [76]
The Dobbses would not listen to her explanations. They wanted Carrie -- and her shame -- out of the house at once. As Dobbs was the local peace officer, and familiar with the legal workings of the county, he knew just what to do. He filed commitment papers with Justice Shackleford. Dobbs claimed the girl was feebleminded, epileptic or both, and anyway, the family could no longer afford to board her. Shackleford scheduled a commitment proceeding. [77]
On January 23, 1924, Shackleford convened a brief hearing. Two doctors attended to render their expert opinions. The Dobbses testified that Carrie had experienced "hallucinations and ... outbreaks of temper" and had engaged in "peculiar actions." Carrie was quickly declared "feebleminded" and transferred to the custody of the Colony for Epileptics and Feebleminded. For Shackleford, it was the second generation of Bucks he had sent to the colony -- first the mother, Emma, and now her daughter, Carrie. [78]
It was not unusual for Virginia to use its Colony for Epileptics and Feebleminded as a dumping ground for those deemed morally unsuitable. Classifying promiscuous women as morons was commonplace. The colony's superintendent, Dr. Albert Priddy, admitted as much in a report: "The admission of female morons to this institution has consisted for the most part of those who would formerly have found their way into the red-light district and become dangerous to society .... " [79]
But the numbers of morally condemned women were becoming economically daunting. "If the present tendency to place and keep under custodial care in State institutions all females who have become incorrigibly immoral [continues]," he argued, "it will soon become a burden much greater than the State can carry. These women are never reformed in heart and mind because they are defectives from the standpoint of intellect and moral conception and should always have the supervision by officers of the law and properly appointed custodians." Priddy's solution was the common eugenic remedy, sterilization. [80]
When Carrie was condemned, eugenical sterilizations were not yet legal in Virginia. Priddy's institution had certainly sterilized many women, but always as part of "therapeutic" treatment for unspecified types of "pelvic disease." [81] These therapeutic sterilizations on young, unsuspecting women were recorded as "voluntary," with informed consent transcripts to prove it. One such transcript read:
Doctor: Do you like movies?
Patient: Yes, sir.
Doctor: Do you like cartoons?
Patient: Yes, sir.
Doctor: You don't mind being operated on, do you?
Patient: No, sir.
Doctor: Then you can go ahead. [82]
Priddy well understood how far outside the law such sterilizations were. In 1916, he had been taken to court for sterilizing several members of another Virginia family. On September 23, 1916, while the hardworking George Mallory was on shift at a nearby sawmill, his wife Willie and nine of their dozen children were at home in Richmond. Two family friends were visiting. Suddenly, two Richmond policemen burst in and declared the Mallory home "a disorderly house," that is, a brothel. It was later alleged that one of the policemen actually "made an indecent proposal" to one of the daughters. [83]
No matter, the younger children were turned over to the juvenile court, which, citing "vicious and immoral influences," transferred them to the Children's Home Society. Willie and her two eldest daughters, Jessie and Nannie, were confined at the City Detention Home, and then on October 14 referred to the Commission for the Feebleminded. [84]
Willie later recalled her experience. "A doctor examined my mind," she recounted, "and asked if I could tell whether salt was in the bread or not, and did I know how to tie my shoes. There was a picture hanging on the wall of a dog. He asked me if it was a dog or a lady. He asked me all sorts of foolish questions, which would take too long for me to tell you .... Then the doctor took his pencil and scratched his head and said, 'I can't get that woman in.'" But the attending juvenile probation officer, Mrs. Roller, was determined to have the family institutionalized. She told the doctor to write "unable to control her nerves," and added, "We can get her in for that." [85] He did so.
Mrs. Mallory, Jessie and Nannie were committed for lack of nervous control. Priddy had them now. Willie and Jessie were sterilized first. In late 1917, Priddy was getting ready to operate on the other daughter, Nannie, when he received another in a series of letters from George Mallory. Proud and strong-willed, Mallory expressed himself in powerful, if simple, terms. His English was lousy and his spelling atrocious. But his outrage was palpable. Grammar and form did not matter for Mallory. His family had been ripped from his home, and he wanted them back. On November 5, 1917, after several earlier letters were ignored, Mallory wrote an angry final demand. [86]
Dr. Priddy
Dear sir one more time I am go write to you to ask you about my child I cannot here from her bye no means I have wrote three orfour times cant get hereing from her at all. We have sent her a box and I dont no wheather she recevied them or not. I want to know when can I get my child home again My family have been broked up on fake pertents same as white slavery. Dr what busneiss did you have opreatedeing on my wife and daughter with out my consent. I am a hard working man can take care of my family and can prove it and before I am finish you will find out that I am. I heard that some one told you lots of bad news but I have been living with her for twenty three years and cant no body prove nothing againts my wife they cant talk anything but cant prove nothing ... just to think my wife is 43 years old and to be treated in that way, you ought to be a shamed of your selft of opreateding on her at that age just stop and think of how she have been treated what cause did you have opreateding her please let me no for there is no law for such treatment I have found that out I am a poor man but was smart anuf to find that out I had a good home as any man wanted nine sweet little children now to think it is all broke up for nothing I want to no what you are go do I earn 75$ a month I dont want my child on the state I did not put her on there. if you don't let me have her bye easy term I will get her by bad she is not feeble minded over there working for the state for nothing now let me no at once I am a human been as well as you are I am tired of being treated this way for nothing I want my child that is good understanded let me know before farther notise. Now I want to know on return mail what are you go do wheather are go let my child come home Jet me here from her
Verly Truiley
Mr George Mallory
My last letter to you for my child with out trouble don't keep my child there I have told you not to opreated on my child if you do it will be more trouble .... [87]
Priddy was livid, and wrote Mallory back, threatening his own action. "Now, don't you dare write me another such letter or I will have you arrested in a few hours." Implying a threat of surgical consequences, he added, "If you dare to write me another such communication I will have you arrested and brought here too." Mallory's spelling was bad, but he retained an attorney who could spell quite correctly. He sued Priddy for sterilizing his wife and daughter Jessie. Mallory also filed a writ of habeas corpus, and by early 1918 his family was returned to him. Although Priddy's conduct was upheld on appeal, the judge warned Priddy not to sterilize any other patients until the law was changed. [88]
Enter Carrie Buck. She would be the test case.
Virginia's legislators had been reluctant to pass a eugenic sterilization law. "[We] were laughed at by the lawmakers who suggested they might fall victim to their own legislation," recalled Joseph Dejarnette, superintendent of the Western State Hospital in Staunton, Virginia. He added, "I really thought they ought to have been sterilized as unfit." [89]
In 1922, after numerous state laws had been vetoed or overturned by the courts on Constitutional grounds, Laughlin completed a massive 502- page compilation of state eugenical legislation. It was entitled Eugenical Sterilization in the United States. The dense volume, bristling with state-by-state legal analysis and precedent, included what lawyers and eugenicists unanimously declared to be a new "model sterilization law," updated since previous iterations of Laughlin's model legislation. It was indeed the complete legislator's guide. Laughlin was certain that a law that followed a rigid course of due process, proper notification to the patient, adversarial protection of the patient's rights, and a narrow, nonpunitive, health-based eugenical sterilization regimen could withstand a U.S. Supreme Court challenge. Burnishing the report's legal soundness was the fact that it was not issued by any of the Cold Spring Harbor entities, but was distributed as an official document of the Municipal Court of Chicago. Judge Olson, who headed Chicago's Municipal Court, concomitantly served as president of the Eugenics Research Association. Olson even wrote the introduction, saluting Laughlin, who "rendered the nation a signal service in the preparation of this work. ... " [90]
Laughlin personally sent a copy to Priddy. Now Priddy and his fellow Virginia eugenicists would carefully follow Laughlin's advice. In the fall of 1923, with a mandate from Virginia's State Hospital Board, Priddy and colony attorney Aubrey Strode authored comprehensive new legislation closely resembling the text and format of Laughlin's model statute. By March 30, 1924, Virginia's eugenics law, which now included numerous due process safeguards, was finally passed by both state houses and signed by the governor. It was to take effect on June 17, 1924. [91]
Although Carrie was condemned as feebleminded on January 23, 1924, she was not immediately admitted to the colony. Pregnant girls were not permitted in the facility. On March 28, Carrie gave birth to a daughter, Vivian. Since Carrie had been declared mentally incompetent, she could not keep the child. Ironically, the Dobbses took Vivian in. [92] Three generations of Bucks had intersected with J.T. Dobbs.
Carrie's arrival at the colony was delayed until June 4, just days before the new sterilization law took effect. A legal guardian, Robert Shelton, was properly appointed for her and properly paid $5 per day, just as the statute and due process required. On September 10, 1924, a colony review board properly met and ruled that Carrie "is feebleminded and by the laws of heredity is the probable potential parent of socially inadequate offspring, likewise afflicted ... , " and as such "she may be sexually sterilized ... and that her welfare and that of society will be promoted by her sterilization .... " [93]
Upon completion of the hearing, the board properly inquired if they could proceed. Colony attorney Strode properly advised that the Virginia act "had yet to stand the test of the Courts." Strode later recounted, "Whereupon, I was instructed to take to court a test case." [94]
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 car, 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, 1925, 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, 1925, 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 was 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 Monthly, 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 of law." [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]In 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 Tatio, 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.
The attack is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck "is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization," and thereupon makes the order .... We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. [131]
Then Holmes wrote the words that would reverberate forever.
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.
Three generations of imbeciles are enough. [132]
It was over. Carrie Buck was sterilized before noon on October 19, 1927. Her file was noted simply: "Patient sterilized this morning under authority of Act of Assembly .... " Her mother Emma, residing elsewhere in the same institution, ultimately died some years later, and was ignominiously buried in a colony graveyard beneath tombstone marker #575. Little Vivian, the third generation to be declared an imbecile, was raised by the Dobbses, and enrolled in school, where she earned a place on the honor roll. In 1932, however, Vivian died of an infectious disease at the age of eight. [133]
Eugenical sterilization was now the law of the land. The floodgates opened wide.
***
In the two decades between Indiana's pioneering eugenical sterilization law and the Carrie Buck decision, state and local jurisdictions had steadily retreated from the irreversible path of human sterilization. Of the twenty-three states that had enacted legislation, Maine, Minnesota, Nevada, New Jersey, South Dakota and Utah had recorded no sterilizations at all. Idaho and Washington had performed only one procedure each, and Delaware just five. Even states with strong eugenics movements had only performed a small number: Kansas, for instance, had sterilized or castrated 335 men and women; Nebraska had sterilized 262 men and women; Oregon had sterilized 313; and Wisconsin had sterilized 144. [134]
Although some 6,244 state-sanctioned operations were logged from 1907 to July of 192 5, three-fourths of these were in just one state: California. California, which boasted the country's most activist eugenic organizations and theorists, proudly performed 4,636 sterilizations and castrations in less than two decades. Under California's sweeping eugenics law, all feebleminded or other mental patients were sterilized before discharge, and any criminal found guilty of any crime three times could be asexualized upon the discretion of a consulting physician. But even California's record was considered by leading eugenicists to be "very limited when compared to the extent of the problem." [135]
Many state officials were simply waiting for the outcome of the Carrie Buck case. Once Holmes' ruling was handed down, it was cited everywhere as the law of the land. New laws were enacted, bringing the total number of states sanctioning sterilization to twenty-nine. Old laws were revised and replaced. Maine, which had not performed such operations before, was responsible for 190 in the next thirteen years. Utah, which had also abstained, performed 252 in the next thirteen years. South Dakota, which had performed none, recorded 577 in the next thirteen years. Minnesota, which had previously declined to act on its legislation, registered 1,880 in the next thirteen years. [136]
The totals from 1907 to 1940 now changed dramatically. North Carolina: 1,017. Michigan: 2,145. Virginia: 3,924. California's numbers soared to 14,568. Even New York State sterilized forty-one men and one woman. The grounds for sterilization fluctuated wildly. Most were adjudged feebleminded, insane, or criminal; many were guilty of the crime of being poor. Many were deemed "moral degenerates." Seven hundred were classed as "other." Some were adjudged medically unacceptable. All told, by the end of 1940, no fewer than 35,878 men and woman had been sterilized or castrated-almost 30,000 of them after Buck v. Bell. [137]
And the men and women of eugenics had more plans. They even had a song, created on the grounds of the Eugenics Record Office in the summer of 1910, which they chanted to the rambunctious popular melodies of the day. They sang their lyrics to the rollicking jubilation of ta-ra-ra-boom-de-ay.
We are Eu-ge-nists so gay,
And we have no time for play,
Serious we have to be
Working for posterity.
Chorus:
Ta-ra-ra-boom-de-ay,
We're so happy, we're so gay,
We've been working all the day,
That's the way Eu-gen-ists play
Trips we have in plenty too,
Where no merriment is due.
We inspect with might and main,
Habitats of the insane.
Statisticians too are we,
In the house of Carnegie.
If to future good you list,
You must be a Eu-ge-nist. [138]