Buck v. Bell

[Leslie Goldstein]

I agree with Eugene that Buck v. Bell is a genuinely hard case.  I say
this as a left-leaning textualist who believes that Griswold was wrongly
decided.  (i.e. I am uncomfortable with the use of substantive due
process to protect rights that are not textually secured (which is why I
hate the recent decisions of th Federalism Five--they are making it up
as they go along, in my view).
I also agree with Eugene that a big problem with Holmes's reasoning is
his treatment of potentially pregnant retarded persons as tools of the
state; Holmes cares not a whit for Carrie Buck's well-being.  It is one
thing to have a law that authorizes sterilization for any person whose
mental faculties are such that she would not be able to understand the
menaing of pregnancy.  It is another to uphold that Virginia law, which
sterilized, among others , institutionalized epileptics.  I would like
to think I would have thought of handling it as a cruel and unusual
punishment case--true, there was no criminal context unlike the origianl
purposes of the clause, but it is close enough to the physical maiming
that was the target of the clause that the statute deserves a good hard
look.  In other words , such statutes run contrary to the deep revulsion
for human maiming that lies at the core (in my view) of the cruel and
unusual punishment clause.
Leslie

"Volokh, Eugene" 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 childlessness is
> better than pregnancy for those who lack the capacity to make their
> own choice.
>
>    So my bottom line:  We shouldn't let our modern endorsement of
> reproductive rights, coupled with our praiseworthy sympathy for the
> mentally retarded, cause us to ignore the very real costs to the
> woman, to the children, and to society imposed by unlimited
> reproductive rights enjoyed by those who lack the maturity to exercise
> them.  And these costs have to be part of any analysis of Buck v.
> Bell, and must weigh in Holmes's favor when one evaluates his
> decision.
>
>    Eugene
>
> -----Original Message-----
> From: Rick Garnett
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 3/9/01 8:43 AM
> Subject: Re: "The Greatest Justices" List
>
> Dear all,
>
> Professor Finkleman is exactly right.  It would, in my view, be a
> serious mistake to write off as "excusable ignorance" OWH's work in
> Buck.  There was nothing benign, nothing "progressive", and certainly
> nothing excusable, about the creepy, arrogant, and anti-humanist
> eugenics of Holmes, Hand, and their class (including, for example,
> Margaret Sanger).  The views embraced in Buck were awful, and had
> horrible consequences.
>
> I am quite surprised, for what it's worth, by the suggestion that
> Holmes's views can be excused, while Rehnquist's ideology
> ("federalism"?
> "conservativism"?) is so "unacceptable" as to be disqualifying.
>
> Best,
>
> Rick Garnett
>
>
>
>
> . At 10:08 AM 3/9/01 -0600, you wrote:
> >Since Carrie Buck was white I assume Judith's "bigotry" here is
> against
> poor
> >people or uneducated people.  It strikes me that Buck v. Bell is a
> classic case
> >for understanding one phras of the "progressive movement" -- to use
> government
> >regulation to cure all social ills; it worked of course (or could
> have
> worked)
> >in the economic sphere -- wage regulations; safer meat, safer drugs,
> safer work
> >place, etc. where the market simply cannot regulate very well or at
> all
>
> >(especially before wrongful death actions were possible it was had to
>
> sue the
> >manufacturer for killing you with bad meat, and besides, what kind of
>
> remedy is
> >a suit when you are dead?) but in other areas, like thought control
> (the
> >sedition act, use of the Comstock Act to prohibit dissemination of
> material on
> >birth control) it seems the progressive movement was neither
> successful
> nor
> >progressive.  The same was true for the immigration laws of 1921 and
> 1924 and I
> >would argue, the decision in Buck v. Bell, both of the laws and the
> decision
> >were predicated, not only on "ignorance" as Judith argues, and not
> very
> good
> >science, but also an ideology that accepted that some people were
> just
> "better"
> >than others and therefore deserved more chances and more protections.
>
> >
> >--
> >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
> >
> >
> >Judith Baer wrote:
> >
> >> Paul Z. wrote:
> >>
> >> Does [ideology] disqualify Holmes for Buck v. Bell?
> >>
> >> I wouldn't put OWH on the list anyway, but I tend to think not.  B
> v.
> B was
> >> written in excusable ignorance.  However, if somebody did it today,
>
> yes.
> >> The only explanations could be INEXCUSABLE ignorance, or bigotry.
> >>
> >> Judy Baer
> >
> Richard W. Garnett
> Notre Dame Law School
> Notre Dame, IN  46556
> (219) 631-6981
> garnett.4 at nd.edu
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010317/69efb609/attachment.htm