Putting Buck v. Bell in Historical Context

October 29th, 2011

An interesting piece about the tragedy that is Buck v. Bell, and Justice Holmes.

In this article written for a law-review symposium in response to a presentation on the infamous 1927 U.S. Supreme Court opinion in Buck v. Bell, Edward J. Larson argues that, at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or that due process was provided for the persons subject to its reach, the law should have withstood constitutional challenge. The tragedy of Buck v. Bell, Larson argues, was that Carrie Buck never received the due process guaranteed under Virginia’s eugenic sterilization statute and that neither her lawyers nor the courts protected her from a flagrant violation of her basic constitutional and statutory rights. Under the fact that should have been brought out at trial, Carrie Buck would not have been sterilized. More fundamentally, had due process been provided in this and other instances, while eugenics would still have been a scientific and medical mistake, it would not be a legal one.

Did you know that Carrie Buck was raped? That is why she got pregnant? Did you know she was an honor student? No that didn’t make it into the opinion. The only social darwinist on the court was Holmes.

This is what happens when the courts defer blindly to the state’s version of the case, without providing any scrutiny.  I wonder what Oliver Wendell Breyer would think?