Why Buck v. Bell was not an Anomaly (Part I)

Most Judicial scholars do not like to mention Buck v. Bell (1927): the Supreme Court held that mandatory sterilization was legal. Why? Because they claim the decision was an anomaly. But that is not true! Oliver Wendell Holmes who wrote the majority decision in Buck v. Bell had a way of being on the wrong side of discriminatory decisions: black and immigration racism (Giles v. Harris, Berea College v Kentucky, United States v. Ju Toy, Lum v. Rice, and Bailey v. Alabama); freedom of contract and women’s rights (Commonwealth v. Perry, Lochner v. New York, Mueller v. Oregon, Adkins v. Children’s Hospital, Meyer v. Nebraska, and Pierce v. Society Sisters); and free speech and right to a lawful profession (McAuliffe v. New Bradford, United States v. Schenck, Frohwerk v. United States, and Debs v. United States). For Holmes, Buck v. Bell was not an anomaly but a pattern of constitutional neglect.

Even when Holmes sided with liberal or progressive causes, he only did so because he was practicing presumption or judicial activism (which meant siding with state or federal legislation almost 100% of the time). In fact, Holmes did not support many progressive causes other than his firm belief in the right of the powerful to impose their will on the weak. This is why the only forms of government legislation that Holmes disliked were laws like the Sherman Anti-Trust Act. This also fits the narrative of his Buck v. Bell decision and his firm belief in Darwin’s “survival of the fittest” and eugenics to eliminate the less fortunate or “defective” individuals from the human race. Holmes believed he came from a strong lineage of superior genes including high intellect. So it will come as no surprise that Holmes also believed that people of “lower quality” was a result of hereditary and therefore, there was no cure for the epidemic of intellectually challenged persons. Holmes is on record of being a strong proponent of population control even if it meant using infanticide to weed out babies who failed “examination” to achieve this goal. Holmes was a strong proponent for war (he fought valiantly during the Civil War) and felt the only downside from war was it wounded and killed strong citizens and did nothing to weed out the weak undesirables in society.

Holmes’s Supreme Court decisions were extremely inconsistent. In one opinion he will say the Court should not consider economic conditions, freedom of contract, or broad readings of the First Amendment. In future decisions, Holmes would do a complete 180 on First Amendment cases as well as on freedom of contract (Lochner v. New York to Baily v. Alabama). This is a result of judicial activism and “presumption of constitutionality”. Since Holmes only sided with the government legislation he failed miserably to develop any consistent view of the law. But one thing that was certain: Holmes was a monster with no conscience and absolutely no desire to uphold the rights of minorities, women, or those who cannot defend themselves. Holmes was on the wrong side of civil rights more times than not because he completely dismissed all “natural laws” that had been identified and entrenched in all modern democratic legal systems for centuries.

Liberals also like to protect another one of their heroes, Justice Louis Brandies, but he too made many discriminatory rulings by defending much of the FDR agenda. The Author of “Imbeciles”, Adam Cohen, tries to make excuses for Brandies in his Buck v. Bell decision because he was seen as a Justice who looked out for the everyday person. This is not true! For instance, in Mueller v. Oregon, the Brandies Briefs made women out to be inferior to men so the Court would uphold working hour regulations only on women. This decision was not to look out for the interest of women, but to discriminate against them to remove them completely out of the workforce. The Mueller decision made employers much more likely to hire men who had no work regulations than women. Brandies did the same in every economic regulation decision. For instance, in Wickard v. Filburn, a farmer was denied the right to grow wheat crops to feed his family. Child labor laws, women’s hourly wages, and union laws all sound like Brandies was looking out for the everyday person. But for every person these laws may have helped they hurt two or three other persons from finding work or having big corporation backed unions force mom and pop shops out of business. Brandies may have been well intentioned in his reasoning, but he flagrantly violated the Constitution for “social justice” legislation which ultimately failed because it would also hurt millions of people economically. Liberals need to remember presumption and judicial activism was not only practiced by Holmes, but the FDR Court as well as the Warren Court. Since modern legislation favors growing government expansion at the expense of the rights of “We the people”, liberals may mistake these actions as Justices siding with the progressive cause, but that may not be the case. It is impossible to tell especially since Judges, like Holmes, fail to tell us what the law is.