Imbeciles

by Adam Cohen

  “There can be no doubt”: Buck, 274 U.S. at 207.

  The Virginia law: An Act to Provide for the Sexual Sterilization of Inmates of State Institutions in Certain Cases, Virginia Acts of Assembly, chap. 394 (1924).

  “the usual last resort”: Buck, 274 U.S. at 208.

  Holmes’s dismissive reference: Siegel, “Justice Holmes,” 108; Erwin Chemerinsky, Constitutional Law: Principles and Policies, 2nd ed. (New York: Aspen Law & Business, 2002), 642.

  From 1920 to 1927: Siegel, “Justice Holmes,” 132.

  Less than two months earlier: Nixon v. Herndon, 273 U.S. 536 (1927), decided March 7; Siegel, “Justice Holmes,” 139–41 (appendix 1).

  Holmes invoked Strode’s and Dr. Priddy’s defense: Buck, 274 U.S. at 208.

  Saying the two groups: Siegel, “Justice Holmes,” 130.

  “means were the wisest”: Block v. Hirsh, 256 U.S. 135, 158 (1921).

  “a large discretion”: Brief for Appellee, Buck v. Bell, 143 Va. 310 (1925) 48.

  to enforce even foolish laws: Oliver Wendell Holmes Jr. to Harold Laski, March 4, 1920, in Holmes-Laski Letters, 1:194.

  “call upon the best citizens”: Buck, 274 U.S. at 207.

  “greater power includes the lesser”: McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892).

  “surely one of the most ‘totalitarian’ statements”: Berns, “Due Process of Law?,” 762.

  He was “famously skeptical”: Richard Posner, Reflections on Judging (Cambridge, MA: Harvard University Press, 2013), 168.

  Holmes did cite one case: Jacobson v. Massachusetts, 197 U.S. 11 (1905).

  “principle that sustains”: Buck, 274 U.S. at 207.

  Laughlin had cited Jacobson: Laughlin, Eugenical Sterilization, 339.

  The Virginia Supreme Court: Buck v. Bell, 143 Va. 310 (1925); Brief for Plaintiff in Error, Buck v. Bell, 1926, 36–37; Brief for Appellee, Buck v. Bell, 143 Va. 310 (1925), 27–29

  The Massachusetts law: Jacobson, 197 U.S. at 12.

  Rather than view the case: Leuchtenburg, Supreme Court Reborn, 17–18, Berns, “Due Process of Law?,” 766.

  Modern rights to privacy: Nourse, “Constitutional Tragedy,” 107.

  In Meyer v. Nebraska: Laurence Tribe, “Lawrence v. Texas: The ‘Fundamental Right’ That Dare Not Speak Its Name,” Harvard Law Review 117 (2004): 1934.

  In both cases: Ibid.

  The Meyer court: Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

  “some things which decent government”: Walter Berns, “Buck v. Bell: Due Process of Law?” The Western Political Quarterly 6, no. 4, 262, 763.

  His famous statement: Oliver Wendell Holmes Jr., The Common Law (Boston: Little, Brown, 1881), 1.

  More than any doctrines: Buck, 274 U.S. at 207.

  “sooner or later”: Holmes to Laski, April 29, 1927, 2:939.

  He had been a skeptic: White, Justice Oliver Wendell Holmes, 320.

  Buck v. Bell was “one decision”: Oliver Wendell Holmes Jr. to Lewis Einstein, May 19, 1927, in Holmes-Einstein Letters, ed. J. Peabody (New York: St. Martin’s, 1964), 267.

  It is a vote: Urofsky, Brandeis, 874 (Buck v. Bell is mentioned only in a footnote).

  Brandeis later admitted: Dickson, Supreme Court in Conference, 75.

  it inflicted “cruelty upon a helpless class”: Vetoes by the Governor, of Bills Passed by the Legislature, Session of 1905 (Wm. Stanley Ray, 1905), 27; Edwin Black, War Against the Weak (New York: Four Walls Eight Windows, 2003), 66.

  The sole dissent: Novick, Honorable Justice, 352.

  Butler was not: Phillip Thompson, “Silent Protest: A Catholic Justice Dissents in Buck v. Bell,” Catholic Lawyer 43 (2004): 125, 132.

  He was an observant Catholic: “Religion Q & A: How Catholics Became a Majority on the U.S. Supreme Court,” Washington Post, June 20, 2009; James Hitchcock, The Supreme Court and Religion in American Life, (Princeton, NJ: Princeton University Press, 2004), 2:88–89.

  In state legislatures: Randall Hansen and Desmond King, Sterilized by the State: Eugenics, Race, and the Population Scare in Twentieth-Century North America (Cambridge: Cambridge University Press, 2013), 21.

  One time it might have been a factor: Hansen v. Haff, 291 U.S. 559, 564 (1934).

  as a committed Catholic: Thompson, “Silent Protest,” 136, 137.

  John Ryan: Sharon M. Leon, “‘A Human Being, and Not a Mere Social Factor’: Catholic Strategies for Dealing with Sterilization Statutes in the 1920s,” Church History 73 (2004): 383, 389.

  Francis Galton himself: Hansen and King, Sterilized by the State, 128–30.

  Butler had been born on the frontier: Thompson, “Silent Protest,” 137.

  Eight of the court’s justices: Samuels v. McCurdy, 267 U.S. 188, 203 (1925) (Butler, J., dissenting).

  “silent protest”: Thompson, “Silent Protest,” 125.

  When the Buck v. Bell ruling came down: “Upholds Operating on Feeble-Minded,” New York Times, May 3, 1927; “For Harvard Dining Hall,” New York Times, May 3, 1927.

  The front page was filled: “Tree in New Haven 227 Years Old Cut Down; Landmark Falls Victim to Street Widening,” New York Times, May 3, 1927; “London Season Opens with King at Opera; Four or Five Queens to Make It Brilliant,” New York Times, May 3, 1927.

  The Times story: “Upholds Operating on Feeble-Minded.”

  “Eugenicists cheered”: “The Judiciary: Sterilization,” Time, May 16, 1927.

  The Literary Digest: “To Halt the Imbecile’s Perilous Line,” Literary Digest, May 21, 1927, 11; Lombardo, Three Generations, 175.

  “The decision of the Supreme Court”: “To Halt the Imbecile’s Perilous Line,” 11.

  “Over the protests of many”: Gregory Michael Dorr, Segregation’s Science: Eugenics and Society in Virginia (Charlottesville: University of Virginia Press, 2008), 134–35.

  “that great jurist”: Lombardo, Three Generations, 174–75.

  Robert E. Cushman: Cushman, “Constitutional Law in 1926–27,” 70, 92.

  “the transmitting of characteristics”: “To Halt the Imbecile’s Perilous Line,” 11.

  “Unjustified Sterilization”: “Unjustified Sterilization,” America, May 14, 1927, 102, quoted in Leon, “A Human Being and Not a Mere Social Factor,” 403.

  “May God protect”: Lombardo, Three Generations, 176.

  “Cranks as usual do not fail”: Oliver Wendell Holmes Jr. to Harold Laski, July 23, 1927, in Holmes-Laski Letters, 2:964.

  CHAPTER TEN: CARRIE BUCK

  The colony now had: Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Baltimore: Johns Hopkins University Press, 2008), 177–81, 185. There had been one further delay after the Supreme Court ruling. An anti-eugenics group filed a petition for rehearing with the Supreme Court, and Strode advised waiting until the rehearing was denied, which it soon was.

  The surgeon who would be performing: “Continued Notes,” Oct. 1927, box 11, Central Virginia Training Center Papers, Library of Virginia; “Operation Record,” unnamed file, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers; J. David Smith and K. Ray Nelson, The Sterilization of Carrie Buck: Was She Feebleminded or Society’s Pawn? (Far Hills, NJ: New Horizon Press, 1989), 179–81.

  Carrie was anesthetized: “Continued Notes,” Oct. 1927; “Operation Record”; Smith and Nelson, Sterilization of Carrie Buck, 179–81.

  The medical staff: Carrie Buck Hospital Records, unnamed file, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  After two weeks: “Continued Notes,” Oct. 1927; Paul Lombardo, “Three Generations, No Imbeciles: New Light on Buck v. Bell,” New York University Law Review 60 (April 1985): 30, 60.

  The colony’s parole
system: Lori Andrews, Maxwell Mehlman, and Mark Rothstein, Genetics: Ethics, Law, and Policy (New York: Thomson/West, 2006), 56.

  On November 12, 1927: Lombardo, Three Generations, 185–86, 187; Smith and Nelson, Sterilization of Carrie Buck, 187–88, 189.

  “I understand,” he said: “Carrie Buck Trial Transcript, 51–100” (2009), 97, Buck v. Bell Documents, Paper 32, http://readingroom.law.gsu.edu/buckvbell/32.

  Strode repeated this assertion: Brief for Defendant in Error, Buck v. Bell, U.S. Supreme Court, Oct. term, 1926, 5, available at http://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=1035&context=buckvbell.

  “She is quite well behaved”: John Bell to Alice Dobbs, Jan. 12, 1928, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  Dobbs did not want Carrie back: Alice Dobbs to John Bell, Feb. 13, 1928, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  “Can’t you still keep her”: Ibid.

  “I thought when the Red Cross”: Ibid.

  Her half sister, Doris, was admitted as an inmate: Lombardo, Three Generations, 186; Records of Doris Figgins, unnamed file, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  “High-grade imbecile”: Records of Doris Figgins.

  At least one person: Lombardo, Three Generations, 186–87.

  the colony board voted: Ibid., 185–86 and 333n2.

  On January 23, 1928: Records of Doris Figgins; Smith and Nelson, Sterilization of Carrie Buck, 180, 216; Ben A. Franklin, “Teen-Ager’s Sterilization an Issue Decades Later,” New York Times, Mar. 7, 1980.

  Doris was told: Smith and Nelson, Sterilization of Carrie Buck, 216–18; Lombardo, Three Generations, 187.

  A. T. Newberry: A. T. Newberry to John Bell, Feb. 18, 1928, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  Dr. Bell responded: John Bell to A. T. Newberry, Feb. 20, 1928, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  Dr. Bell told Newberry: John Bell to A. T. Newberry, Feb. 22, 1928, quoted in Smith and Nelson, Sterilization of Carrie Buck, 191.

  On February 25: Smith and Nelson, Sterilization of Carrie Buck, 191–92.

  Mrs. Newberry wrote to Dr. Bell: Ibid., 192.

  Dr. Bell wrote back: John Bell to Mrs. A. T. Newberry, Feb. 28, 1928, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  In May Mrs. Newberry wrote: Smith and Nelson, Sterilization of Carrie Buck, 193.

  She tried to get Dr. Bell: Ibid., 194.

  “I do not think it advisable”: Ibid., 195.

  While Carrie was away: Ibid., 194.

  She wrote Dr. Bell: Ibid., 195–96.

  Mrs. Newberry did write to Dr. Bell: Mrs. A. T. Newberry to John Bell, Dec. 9, 1928, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers; Smith and Nelson, Sterilization of Carrie Buck, 196–97.

  She tried to “impress upon Carrie”: Newberry to Bell, Dec. 9, 1928; Smith and Nelson, Sterilization of Carrie Buck, 196–97.

  Carrie’s “sexual delinquency”: Bell to Newberry, Dec. 11, 1928; Smith and Nelson, Sterilization of Carrie Buck, 198.

  Dr. Bell finally granted Carrie’s request: Lombardo, Three Generations, 189.

  Mr. Newberry added in a postscript: A. T. Newberry to John Bell, June 22, 1929, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers; Smith and Nelson, Sterilization of Carrie Buck, 200.

  She was placed with families: Lombardo, Three Generations, 189; John Bell to Carrie Buck, Dec. 22, 1930, Records of Doris Figgins, unnamed file, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  She told Dr. Bell: Bell to Buck, Dec. 22, 1930; Lombardo, Three Generations, 189.

  Dr. Bell agreed: Bell to Buck, Dec. 22, 1930.

  On December 27: John Bell to Mrs. A. T. Newberry, Dec. 29, 1930, box 11, Central Virginia Training Center Papers.

  the colony insisted she was: “History and Clinical Notes,” June 4, 1924, box 11, Carrie Buck file, Library of Virginia; Smith and Nelson, Sterilization of Carrie Buck, 44.

  May 14, 1932: Smith and Nelson, Sterilization of Carrie Buck, 203.

  Carrie’s new husband: Ibid., 203–4.

  In a May 17 letter to Dr. Bell: Mrs. W. D. Eagle to John Bell, May 17, 1932, box 11, Central Virginia Training Center Papers; Smith and Nelson, Sterilization of Carrie Buck, 203.

  Carrie settled into a quiet domestic life: Smith and Nelson, Sterilization of Carrie Buck, 205.

  About seven weeks after Carrie’s wedding: Lombardo, Three Generations 190; Margaret Faris to John Bell, June 21, 1933, box 11, Central Virginia Training Center Papers.

  “so very sweet”: Smith and Nelson, Sterilization of Carrie Buck, 212; Lombardo, Three Generations, 190.

  Paul Popenoe: Paul Popenoe to John Bell, Mar. 16, 1933, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers; Lombardo, Three Generations, 190.

  Carrie sent a photographic negative: Smith and Nelson, Sterilization of Carrie Buck, 210–12; Lombardo, Three Generations, 190.

  Neither she nor Dr. Bell: Lombardo, Three Generations, 190.

  Margaret Faris: Margaret Faris to John Bell, June 27, 1933, unnamed folder, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s-1980s file, Central Virginia Training Center Papers.

  Dobbs emphatically refused: Ibid.

  Nearly nine years after: “Carrie Buck Trial Transcript, 51–100,” 58–59; Faris to Bell, June 21, 1933.

  Stephen Jay Gould examined Vivian’s school records: Stephen Jay Gould, “Carrie Buck’s Daughter,” Constitutional Commentary 2 (1985): 331, 338.

  “We live out in the country”: Mrs. W. D. Eagle to John Bell, Aug. 19, 1933, box 11, Central Virginia Training Center Papers.

  She asked Dr. Bell: Ibid.

  Dr. Bell responded: John Bell to Mrs. W. D. Eagle, Aug. 21, 1933, unnamed file, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers.

  When he did: W. I. Prichard, “History—Lynchburg Training School and Hospital, Pt. II,” Mental Health in Virginia 11 (Autumn 1960):29.

  Carrie and her husband: Smith and Nelson, Sterilization of Carrie Buck, 207.

  Dr. Arnold responded: Ibid., 209–10.

  Her new home: Ibid., 213.

  Carrie “knew what she was doing”: Ibid., 214.

  Emma died of bronchial pneumonia: Lombardo, Three Generations, 216.

  “no official reports”: D. L. Harrell Jr. to J. E. Coogan, Oct. 26, 1942, box 11, Central Virginia Training Center Papers.

  Charles Albert Detamore: Smith and Nelson, Sterilization of Carrie Buck, 215.

  The couple lived: “Carrie Buck Detamore, 8-30-1979 1 pm,” unnamed file, Carrie Buck and Doris Buck Figgins Sterilization, ca. 1920s–1980s file, Central Virginia Training Center Papers; Smith and Nelson, Sterilization of Carrie Buck, 215–16.

  Carrie was living in obscurity: Smith and Nelson, Sterilization of Carrie Buck, 215.

  Dr. K. Ray Nelson: Franklin, “Teen-Ager’s Sterilization”; Smith and Nelson, Sterilization of Carrie Buck, 216.

  He went to visit Doris: Franklin, “Teen-Ager’s Sterilization”; Smith and Nelson, Sterilization of Carrie Buck, 216; William Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in th
e Age of Roosevelt (New York: Oxford University Press, 1995), 23–24; Smith and Nelson, Sterilization of Carrie Buck, 216.

  Dr. Nelson brought: Franklin, “Teen-Ager’s Sterilization”; Smith and Nelson, Sterilization of Carrie Buck, 216; Lombardo, Three Generations, 250.

  When he looked up: Smith and Nelson, Sterilization of Carrie Buck, 216; Lombardo, Three Generations, 250; Franklin, “Teen-Ager’s Sterilization.”

  Doris told Dr. Nelson: Smith and Nelson, Sterilization of Carrie Buck, 216–18.

  “wanted babies bad”: Lombardo, Three Generations, 251.

  When she learned: Franklin, “Teen-Ager’s Sterilization.”

  Next they visited the building: Smith and Nelson, Sterilization of Carrie Buck, 218; Leuchtenburg, Supreme Court Reborn, 24.

  Carrie’s legs were weak: Smith and Nelson, Sterilization of Carrie Buck, 218.

  In an interview: Ibid.

  While living in their modest home: Ibid., 219.

  They were taken: Ibid.; Lombardo, Three Generations, 254.

  Some of the staff: Smith and Nelson, Sterilization of Carrie Buck, 221.

  an “alert and pleasant lady”: Ibid.

  Carrie died in January 1983: Ibid., 219; Lombardo, Three Generations, 254–56.

  Carrie’s body: Smith and Nelson, Sterilization of Carrie Buck, 221–22; Lombardo, “New Light on Buck v. Bell,” 61.

  She also managed: Leuchtenburg, Supreme Court Reborn, 25.

  “Carrie watched for that paper”: Smith and Nelson, Sterilization of Carrie Buck, 214.

  An academic who visited Carrie: Gould, “Carrie Buck’s Daughter,” 336.

  “I didn’t want a big family”: Smith and Nelson, Sterilization of Carrie Buck, 218.

  “They done me wrong”: Carlos Santos, “Historic Test Case: Wrong to Carrie Buck Remembered,” Richmond Times-Dispatch, Feb. 17, 2002.

  CONCLUSION

  “a constitutional blessing”: Buck v. Bell, 274 U.S. 200, 207 (1927); William Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 15.

  “experimental period”: Harry Laughlin, The Legal Status of Eugenical Sterilization: History and Analysis of Litigation Under the Virginia Sterilization Statute, Which Led to a Decision of the Supreme Court of the United States Upholding the Statute (Chicago: Chicago Municipal Court, 1930), 53.