Buck v. Bell

[Paul Finkelman]

Eugene's posting understates the factual problems in this case.  Carrie
Buck  was not retarded and who had not come from a family of three
generations of people with mental problems.  Carrie Buck was poor and
mistreated by the Virginia authorities. She had a child out of wedlock
(I believe) and thus the same middle class/upper class elite social
workers decided she was retarded.  There is no evidence to support these
conclusions and much to undermine them.  There were no "imbeciles" in
the family and while law professors hide behind "factual records," and
the "limits" of the appeals process, the premises of this case were
disgraceful.  This case is much like Korematsu in which the Court relied
on the military to explain the  sociology of Japanese Americans, or the
Taft court opinion in Thind v. US and Ozawa v. US which used science
that was not credible at the time.

The "best interest" of Carrie Buck would have been served if the courts
heard her story, gave her due process, and actually looked at the
factual record prepared in Virginia.

Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu



 "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu> wrote:

> >    Much as I hate to disagree with Rick on this, I
> > think Buck v. Bell cannot
> > be condemned quite this quickly.
> >
> >    To begin with, while I think that the right to
> > have children is quite
> > fundamental, it's far from obviously secured by the
> > Constitution.  Beyond
> > the lack of explicit textual support is also the
> > fact that having children
> > is an activity chock full of externalities --
> > externalities for the society
> > that might be called on to support them if they are
> > in fact born mentally
> > retarded, and externalities for the children
> > themselves.  This isn't just a
> > matter of improving the breeding stock; it's a
> > matter of preventing a great
> > deal of expense that innocent taxpayers would
> > otherwise have to bear, and
> > quite possibly of suffering.  Holmes didn't buy
> > broad unenumerated liberties
> > in Lochner; he didn't buy them in Meyer v. Nebraska
> > (though there I think
> > the 1st Am should have provided an independent
> > rationale for striking down
> > the law, but of course modern 1st Am doctrine was
> > still in its infancy
> > then); it seems quite sensible for him not to buy
> > them in Buck v. Bell.
> >
> >    But more importantly, Buck wasn't a simple
> > reproductive rights case -- it
> > involved someone who, according to the factual
> > findings, was incapable of
> > exercising mature choices.  Today, I believe most
> > states make it a crime for
> > anyone to have sex with a sufficiently retarded
> > person; these laws are of
> > course a constraint on the rights of the mentally
> > retarded to reproduce, and
> > if they were perfectly enforced, they would be
> > tantamount to a
> > sterilization.  And these laws are seen, quite
> > correctly in my view, as
> > protections of the mentally retarded people
> > themselves; people who lack the
> > intellect or maturity to make these choices (whether
> > they are children or
> > mentally retarded adults) need to be protected from,
> > among other things, the
> > risk of pregnancy -- pregnancy resulting from what
> > the law sensibly sees as
> > a form of rape.
> >
> >    Unfortunately, since it may not be easy to make
> > sure that mentally
> > retarded women are never sexually imposed on,
> > sterilization -- in the
> > absence of other highly reliable forms of female
> > contraception -- may be the
> > only way in which these women can be protected from
> > the immense consequences
> > of pregnancies that they cannot in any meaningful
> > sense be said to have
> > chosen.  In fact, in the 1980s the California
> > Supreme Court actually held a
> > statute that barred all involuntary sterilizations
> > of the mentally retarded
> > to be unconstitutional, as applied to a situation
> > where the legal guardian
> > of a mentally retarded woman tried to have her
> > sterilized to prevent her
> > from getting pregnant.
> >
> >    Now I realize that the matter is more complex
> > than simply this.  First,
> > by all accounts the law at issue in Buck v. Bell was
> > often administered
> > unsoundly, and many women who were subject to it
> > were in fact not mentally
> > retarded (perhaps including Carrie Buck herself).
> > But before one faults
> > Holmes for not interceding to stop this, I think
> > we'd at the very least need
> > much more evidence that, given the understanding of
> > the time, Holmes indeed
> > should have been aware that the laws were being
> > routinely applied that way.
> >
> >    Second, I agree that given this history, and
> > given the many other
> > instances of such governmental abuses, it might be
> > better to have a per se
> > ban on such laws, and strong protection of the right
> > to have children even
> > for the mentally retarded -- not because such a
> > right is somehow morally
> > mandated as a matter of first principles, but
> > because the government can't
> > be trusted to decide who gets to reproduce and who
> > doesn't.  In fact, I
> > think this is the strongest argument for the right
> > to reproduce.  But it's
> > far from an open-and-shut argument, and I don't
> > think that Holmes
> > (especially in the 1920s, without our perspective on
> > such abuses) can be so
> > harshly faulted for not taking it.
> >
> >    Third, I recognize that Holmes's rhetoric didn't
> > focus on the interests
> > of Carrie Buck herself, but more on the interests of
> > society; and that here
> > his customary terseness and toughmindedness might
> > have been rhetorically out
> > of place.  Even so, the points I made in the second
> > paragraph ("To begin
> > with . . .") above still apply.  But beyond that, it
> > seems to me that
> > implicitly the fact that Carrie Buck had been
> > factually found to lack the
> > capacity for mature choice may well have influenced
> > the tenor of Holmes's
> > analysis.  State interests that look one way when
> > they are up against a
> > mature citizen's right to choose -- to choose to
> > have children, to have sex,
> > or even to commit suicide -- might look quite
> > different when they are
> > compared against a right to choose posited for
> > someone who lacks the
> > capacity for choice.  Furthermore, if the argument
> > is that, regardless of
> > Holmes's reasoning (which as I said is quite
> > consistent with his often
> > admired stance against substantive due process), the
> > results he reached were
> > heinous, it seems to me that the need to protect
> > retarded women's interests
> > in not becoming involuntary mothers suggests that
> > the law wasn't so heinous
> > after all.
> >
> >    Fourth, I realize that unlike the ban on sex,
> > sterilization involves an
> > invasive surgical procedure; perhaps this alone
> > should lead it to be
> > prohibited under the rubric not of a right to
> > reproduce but of a right to
> > bodily integrity.  But this too is far from an
> > open-and-shut argument.
> > Recall that in Jacobson v. Massachusetts, a case
> > which I believe was often
> > cited as an argument against broad substantive due
> > process case, the Court
> > upheld the government's right to compel vaccination;
> > and of course again
> > people who lack the capacity to choose for
> > themselves are often required to
> > undergo surgical procedures that others think are in
> > their (and occasionally
> > in society's) interests.
> >
> >    Finally, I of course recognize that retarded
> > adults are still adults,
> > often with normal adult desires for sex and for
> > children.  It may well be
> > that criminalizing all sexual conduct with retarded
> > people -- treating it as
> > a form of statutory rape -- is wrong, and that there
> > should be some way by
> > which the guardians of those people can consent on
> > those people's behalf.
> > That way, one might argue, the mentally retarded
> > could still engage in this
> > important activity that most of us value, while
> > miniminizing the risk that
> > their inability to understand the consequences of
> > this activity will cause
> > them harm.  (I don't know whether any such laws
> > currently exist, or whether
> > they'd ultimately be sound, but I think a case may
> > be made for them.)
> >
> >    It may likewise be the case that the decisions
> > about sterilization and
> > pregnancy shouldn't be made on a general basis by
> > the legislature or by
> > bureaucrats, but should only be made by the retarded
> > person's guardian,
> > preferably a family member but failing that someone
> > who isn't just part of
> > the state machinery.  But again this is far from an
> > open and shut question,
> > since ultimately it's far from clear that such
> > guardians have a much better
> > answer to the nearly metaphysical question of
> > "what's really in the mentally
> > retarded person's best interest?" than the
> > legislative conclusion that
> >
> === message truncated ===
>
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