Imbeciles

by Adam Cohen

  The transition memo also advised that Laughlin’s personal mail should be forwarded to his new home: 201 West Normal Avenue, Kirksville, Missouri. In his retirement, Laughlin returned to his early roots, living quietly in the small town where he had first absorbed his mother’s fiery reform spirit—and where, as a college student, he had written a term paper predicting that “eventually the world will be inhabited by an enlightened race, Caucasian in blood, Christian in religion and free in government.”

  Laughlin no longer concerned himself with germplasm, biological immigration policy, eugenic sterilization, or guarding the nation against refugees fleeing Nazi Germany. He devoted his final days to leisurely, small-town pursuits, including building a new house and gardening. On January 26, 1943—a little more than a year after his country formally declared war on the German regime he admired so much—Laughlin died, at the age of sixty-two.

  • • •

  Holmes was eighty-six years old when he delivered the Supreme Court’s decision in Buck v. Bell. He no longer had the fire of youth that led him into battle with the Harvard Regiment, or the burning ambition that caused William James to describe him as gouging “a deep self-beneficial groove through life.” Holmes was still, however, a man of strong principles and committed to acting on them. After the ruling, he told his friend Harold Laski of the satisfaction he took from the case. “I wrote and delivered a decision upholding the constitutionality of a state law for sterilizing imbeciles the other day,” he wrote, “and felt that I was getting near to the first principle of real reform.”

  Holmes would live nearly another eight years, and remain on the court for almost five. He did not return to eugenic sterilization in his judicial work or legal writings. Holmes’s final years on the court were filled with other matters, both great and inconsequential, and the quiet process of winding down a legendary career in the law.

  In August 1927 Holmes was asked to enter the controversy over Nicola Sacco and Bartolomeo Vanzetti, the Boston anarchists who had been convicted of murder and sentenced to death. Their supporters contended that they were victims of ethnic and political prejudice. Sacco and Vanzetti’s lawyers showed up at Holmes’s summer home asking him to block their clients’ execution, but he refused, insisting it was not a matter for the federal courts. Many leading progressives championed the men’s innocence, including old friends like Felix Frankfurter, but Holmes was unmoved. Privately, he scorned all the fuss, saying the case had simply given “the reds a chance to howl.”

  Holmes wrote several major opinions in his final years. When Taft wrote for the majority in Olmstead v. United States upholding the conviction of a bootlegger based on phone calls recorded with a warrantless wiretap, Holmes delivered a famous dissent that liberals cheered. “I think it a less evil that some criminals should escape,” he said, “than that the Government should play an ignoble part.” As he entered his late eighties, Holmes remained devoted to his duties, but he showed signs of decline—falling asleep at work and expressing frustration at his own “muddle-headed” thinking at oral arguments. It was a great blow when Fanny died suddenly in April 1929, after taking a bad fall and breaking a hip.

  The following month, Holmes dissented in another important civil liberties case. Rosika Schwimmer, a Hungarian pacifist, was barred from immigrating because she would not take an oath to defend the United States. The majority in United States v. Schwimmer upheld the decision, and Holmes wrote a dissent with another of his famous aphorisms: “the principle of free thought” is “not free thought for those who agree with us but freedom for the thought that we hate.”

  In March 1931 Holmes turned ninety. It was increasingly clear to some of his colleagues that he could no longer adequately perform his duties, and the chief justice approached him in January 1932 and asked him to retire. Holmes did not resist or delay in writing a formal note to the president. He was stepping down with “deep regret,” he said, but “the time has come and I bow to the inevitable.”

  In retirement, Holmes read and greeted visitors—most notably, on his ninety-second birthday, Franklin Roosevelt, who had just been sworn in as president. With his work on the court behind him, Holmes withdrew from the world, even when Felix Frankfurter tried to interest him in events of the day. “It’s all very remote to me,” he told his old friend. “I’m dead,” he said. “I’m like a ghost on the battlefield with bullets flying through me.” Holmes died of pneumonia on March 6, 1935, two days shy of his ninety-fourth birthday. The New York Times reported his death on its front page, with a large photograph. The headline hailed Holmes as the Supreme Court’s “Chief Liberal,” and the obituary did not mention Buck v. Bell.

  • • •

  Fifteen years after Buck v. Bell, the Supreme Court revisited eugenic sterilization. In Skinner v. Oklahoma, the court considered a challenge to Oklahoma’s Habitual Criminal Sterilization Act, which provided for sterilization of people convicted of at least two felonies involving moral turpitude. A prisoner facing sterilization claimed, among other things, that the law was not within Oklahoma’s police power “in view of the state of scientific authorities respecting inheritability of criminal traits.”

  The case arrived at the Supreme Court in 1942, at a time when at least some of the horrors occurring in Germany were known, and when the nation was fighting a world war to defeat Nazism. The inmate’s claim gave the court a chance to overrule Buck v. Bell and declare that the American Constitution did not allow the state to engage in this sort of bodily mutilation, or to deprive people of the right to have children for committing two nonviolent crimes. The Supreme Court, however, declined to issue a sweeping ruling.

  The court struck down Oklahoma’s sterilization statute on narrow grounds. William O. Douglas, writing for the majority, said the law violated the equal protection clause of the Fourteenth Amendment because it did not draw a proper line between crimes of moral turpitude and other crimes. The court noted that the law included theft but not embezzlement, so a stranger who stole $20 from a store would be guilty of a crime of moral turpitude, but a clerk who worked at the same store and embezzled $20 would not. These “conspicuously artificial lines” violated equal protection, the court said. The seven justices who signed only the majority opinion raised no larger objections to the sterilization itself.

  Neither did the two justices who wrote separate concurring opinions. Chief Justice Harlan Fiske Stone argued that the law violated due process because the inmate being sterilized was not given a proper hearing. Robert H. Jackson thought the law violated both equal protection and due process. Jackson, who would soon take a leave from the court to prosecute Nazis at the Nuremberg trials, came the closest to challenging the state’s right to engage in eugenic sterilization. He stated that there were “limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority.” Rather than think about what those limits might be, however, Jackson said he would “reserve judgment.”

  The decision in Skinner v. Oklahoma was not intended to overturn or even limit Buck v. Bell. Douglas, the author of the majority opinion, confirmed the limited nature of the ruling in an interview decades later. “I thought that this kind of legislation was permissible and constitutional,” he said, “but that it had to be surrounded by very careful procedural safeguards lest it be used oppressively or arbitrarily.”

  In fact, Buck v. Bell remains good law, and courts have continued to cite it into the twenty-first century. In 2001 Margaret Vaughn, a young woman who had been labeled mildly mentally retarded, sued Columbia County, Missouri, for trying to force her to be sterilized. In Vaughn v. Ruoff, the U.S. Court of Appeals for the Eighth Circuit explained that “involuntary sterilization is not always unconstitutional.” The state had to have a good reason for the sterilization, the court said, and there had to be appropriate “procedural protections.” As authority for the correctness of
its constitutional analysis, the Eighth Circuit cited Buck v. Bell.

  Neither the Supreme Court’s ruling in Skinner nor the revelations of eugenic sterilization abuses in Nazi Germany brought an end to sterilization in America. In the post-Skinner, post–World War II years, the number of sterilizations rose. In 1944, a year and a half after the court struck down Oklahoma’s sterilization law, there were 1,183 sterilizations nationally, and the number increased over the next two years, to 1,476 in 1946. By 1950 there were 1,526. After Buck v. Bell was decided, Virginia carried out eugenic sterilization on a mass scale, and that continued through the 1940s and 1950s. As late as 1958, Virginia state hospitals were still sterilizing more than one hundred inmates a year.

  It was only in the 1960s, when popular attitudes toward marginalized groups, including the developmentally disabled, changed, that sterilization began to lose favor. From 1965 to 1979, at least fifteen states repealed laws, and in 1973 Alabama’s sterilization statute was ruled unconstitutional. In Virginia, sterilization began to decline, but it took a long time to disappear entirely. In 1974 the legislature repealed the 1924 law, but other statutory provisions allowing for sterilization of people with hereditary mental defects remained on the books until 1979. The colony performed two sterilizations in 1978, and two more in 1979, the last year it had the legal authority to do so. Nationally, Oregon was among the last holdouts. It ordered its final forced sterilization in 1981 and abolished its Board of Eugenics—renamed the Board of Social Protection—in 1983.

  By the end of the twentieth century, legal eugenic sterilization had come to an end, but the number of Americans who had been involuntarily sterilized between 1907 and 1983 was staggering: between sixty and seventy thousand. That number included at least 7,450 people in Virginia, which made the state—and, in particular, the Colony for Epileptics and Feeble-Minded—one of the nation’s busiest centers for eugenic sterilization. Virginia was not, however, the most active state: that title went to California, which sterilized about twenty thousand people. California’s nation-leading numbers were due in large part to a statute that did not give inmates an adequate mechanism for challenging sterilization orders—as well as the willingness of the state’s hospitals to sterilize people for a wide array of minor “defects.”

  The names of most of the sixty to seventy thousand victims are lost to history. Unlike Carrie and Doris, many never even got the grim satisfaction of being told what their government had done to them. For the subjects, sterilization took a profound personal toll. “I see people with babies and I think how much I would have loved to have a young one,” a sixty-two-year-old woman sterilized in North Carolina told a reporter. “It should have been my choice whether I wanted to have a baby or not,” she said. “You just feel like you were held back, like you never had any say in your life.”

  • • •

  The pendulum has swung strongly against eugenic sterilization, but the question remains: will it swing back? The philosophy of Dr. Priddy and Laughlin lives on, and periodically it comes to the fore. In 2013 the Center for Investigative Reporting discovered that California had been coercing female prisoners to get salpingectomies as recently as 2010. A year later, the first vice chairman of the Arizona Republican Party, a former state senator, was forced to resign after he publicly called for the sterilization of women on public assistance. And in the spring of 2015, the Associated Press reported that Nashville prosecutors were making sterilization part of plea negotiations with female defendants.

  If eugenic sterilization becomes a national movement again, it could, like the last time, be driven by advances in genetics. The Human Genome Project, a massive international research effort, is aiming to map every human gene, and it is already providing vast new amounts of data and insights about hereditary traits. Scientists have raised concerns. One study in the American Journal of Human Genetics cautioned that “there is a significant risk that there will be an increased sentiment for instituting eugenic measures in the United States.” The official website of the federal government’s National Human Genome Research Institute notes that the eugenic implications of the Human Genome Project must be “carefully studied.”

  There have been major advances in recent years in “DNA editing.” Scientists have begun to talk of an era of “designer” babies, whose DNA will be edited to remove genes associated with diseases and other disfavored traits—and perhaps edited to add more desirable traits. This technology could raise an array of eugenics issues, from whether parents should be allowed to modify the embryos of their future children to whether the government should be allowed to require it.

  • • •

  The intellectual origins of eugenics trace back to the Darwinian revolution of nineteenth-century England. In On the Origin of Species and The Descent of Man, Darwin explained the role competition and natural selection played in the animal world and in human progress. Francis Galton, Darwin’s half cousin, fashioned these ideas into a theory that called on society to help human progress along by giving “the more suitable races or strains of blood” a better chance of prevailing.

  It was an idea that had strong appeal in America, particularly during the 1920s, when the middle and upper classes felt threatened by mass immigration, urbanization, and other forces that were profoundly disrupting the social order. Like many movements, eugenics attracted different people for different reasons. Progressives saw in it a way for government to use science to reform society. Conservatives saw in it a confirmation of their view that there were inherent differences among people, and that not everyone could be lifted up simply by improving their economic situation or environment.

  Eugenics offered Dr. Albert Priddy, as he saw it, a way of achieving his life’s mission: improving the mental health of Virginians. Like many doctors nationwide, he believed eugenic sterilization provided an elegant, scientific way of ending feeblemindedness. He also used it as a tool to elevate his profession of superintendent. Rather than waste time and resources trying to cure patients who showed few signs of improvement, he would use sterilization to turn the colony into a “clearing house” that could drive a major improvement in the state’s germplasm—with the goal of eradicating inherited mental defects.

  For Harry Laughlin, who was driven by a combination of missionary zeal and deep-seated bigotry, eugenics was a secular religion, and he was one of its greatest evangelists. Laughlin believed the nation was threatened by defective germplasm, and he saw traces of it everywhere: in the feebleminded, in Jewish and Italian immigrants, and in many other varieties of “deficient” people, including epileptics—a group to which he himself belonged. Laughlin sought to use sterilization and other eugenic tools to extirpate the “lowest one-tenth” and redeem a fallen nation.

  For Aubrey Strode, the dutiful lawyer and moderate reformer, eugenics was not a passion, or even a deeply held belief, but primarily a subject to which to apply his formidable legal skills. At various junctures, he passed on the opportunity to promote a program of eugenic sterilization, slowed down its adoption, and narrowed its scope. Of course, Strode could have refused to have anything to do with eugenic sterilization, or he could have actively opposed it, if he believed it was morally wrong. Instead, in his slow and deliberate way, he secured the biggest legal victory for eugenics in American history.

  Eugenics held a special appeal for people at the top of society’s hierarchies, like Oliver Wendell Holmes Jr., who were convinced they belonged there. Born into Boston’s elite—its Brahmin class, to use his father’s term—Holmes believed his elevated status was part of the natural order. As he saw it, people who were not winning the great struggle of life—whether they were gas stokers striking in England, or black people in Alabama trying to vote—deserved to lose. It followed easily on this philosophy that society’s weakest members should be prevented from creating more of their own kind.

  These were the intellectual currents that Carrie Buck stumbled into when she had the misfort
une to be born into a poor family, to be taken in by a heartless foster family, to be raped, and to be falsely labeled feebleminded. She was committed to the Colony for Epileptics and Feeble-Minded, and attracted the attention of Dr. Priddy, at just the wrong time. Carrie was not allowed to be an actor in her own story—no one had any interest in telling her what was at stake in the historic legal conflict. In the only words she was recorded as saying in the proceedings over her sterilization, Carrie told Strode and the Amherst County Circuit Court that she would leave her fate “up to my people.” Carrie never understood—and no one ever explained to her—that there was no one on her side.

  In an era when so much of America was caught up in social Darwinism, and channeling ideas about survival of the fittest into a cruel biological ideology, few paused to contemplate what Charles Darwin himself had said on the subject. In The Descent of Man, he conceded there might well be practical advantages to abandoning “the weak and helpless.” But doing so, he insisted, also brought with it “an overwhelming present evil.” We must allow the weak to “surviv[e] and propagat[e] their kind,” Darwin insisted. Doing anything less, he said, would mean abandoning not only the weak and the helpless but “the noblest part of our nature.”

  A Civil War hero, a Harvard law professor, and, in the estimation of many, the most distinguished Supreme Court justice in history, Oliver Wendell Holmes Jr. wrote the opinion declaring that Carrie Buck should be sterilized—and that “three generations of imbeciles are enough.”

  Dean of Harvard Medical School, an acclaimed Boston literary figure, and the coiner of the phrase “Boston Brahmin,” Oliver Wendell Holmes Sr. impressed on his son, the future Supreme Court justice, the importance of good bloodlines.