Buck v. Bell, Holmes, and facts

[shubha ghosh]

My sense with respect to Buck v. Bell is that Justice
Holmes revealed his hand fairly clearly with his
oft-quote statement about three generations of
imbeciles.  Whether there were in fact three
generations of imbeciles presented in the record or
whether the Justice was blind to the record is largely
irrelevant; the problem is the naked sloganeering  of
the opinion.  I don't think we are talking about
attempts at great rhetorical flourishes or literary
style here.  Whether such excess should keep him off
some ten best list is another question.
--- "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu> wrote:
>      I'm not quite sure how my analysis is "hid[ing]
> behind" factual records
> and the limits of the appeals process.  If Holmes is
> to be faulted, it seems
> to me that he is to be faulted on the basis of the
> information that was
> available to him.  If someone can show that (1)
> Holmes knew or really should
> have known the facts in this case, and that (2)
> under the legal rules of the
> time this was something that the Court was supposed
> to focus on, then that
> would be a powerful criticism of Holmes.  On the
> other hand, if he didn't
> know about this, and had no good reason to know
> about it, or if he really
> was bound to focus on the record, then it seems hard
> to criticize him on
> these particular grounds.
>
>      As a general matter, Justices cannot
> reinvestigate the facts of each
> case that comes before them, and the limits of the
> appeals process are in
> fact sensible.  There are exceptions to this general
> rule, but if this case
> is to be an exception, the critics of Holmes have to
> adduce more evidence
> than simply that, in retrospect, this particular
> case seems to have rested
> on unsound factual findings.
>
>      Eugene
>
> -----Original Message-----
> From: Paul Finkelman
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 3/9/01 1:33 PM
> Subject: Re: Buck v. Bell
>
> 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
>
=== message truncated ===


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