Posted by: Harold Knight | 11/05/2009

Maine: “…waiting to execute degenerate offspring for crime…”

One sure ticket into the New York State Colony for Epileptics and Feeble Minded:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

Oliver Wendell Holmes is a particular (almost)hero of mine. During the course of his tenure on the Supreme Court, he changed his mind. He changed his mind about the applicability of our freedoms as guaranteed under the First Amendment and was instrumental in extending those freedoms to the states under the Fourteenth Amendment. Our freedoms of  speech and press (and internet), are complete within certain well-defined restrictions.

Thank God for Justice Holmes. **

But my (almost)hero was not so much a civil-libertarian earlier in his career. His opinion in Buck v. Bell is shocking. The Supreme Court ruled that Carrie Buck, whom Holmes described a “feeble minded-white [sic] woman … the daughter of a feeble-minded mother … and the mother of an illegitimate feeble-minded child” (Buck v. Bell, 274 U.S. (1927) should be sterilized. The Superintendent of the [New York] State Colony for Epileptics and Feeble Minded, where Carrie Buck’s family had her committed after she gave birth to the supposedly “feeble-minded” child, petitioned the New York courts to have her sterilized. Holmes wrote the opinion of the Supreme Court upholding the action. It turned out later that Carrie was not at all “feeble-minded,” but that her family had her committed to the “colony” because the child was fathered by Carrie’s cousin.

Constitutional scholar M. Cathleen Kaveny asks, “What about the argument that compulsory  sterilization violated the rights of those sterilized—in  particular their rights under the Fourteenth Amendment to the Constitution to both due process and equal protection of law?” Holmes, she says, “wrote the majority opinion, justifying compulsory sterilization on the grounds that it is a small sacrifice with great social benefits.”*** 

In a similar case decided by the Australian High Court, Kaveny says the court, in the opinion written by Justice Gerard Brennan, “…not only affirms the human dignity of the mentally and physically handicapped; he also argues that respect for their human dignity means prohibiting non-therapeutic sterilizations—no benefit to third parties can justify this fundamental assault on their physical integrity.” *** 

The Australian Justice Brennan wrote: 

If the law were to adopt a policy of permitting sterilization in order to avoid the imposition of burdens, the causing of anxiety and the creating of demands, the human rights which foster and protect human dignity in the powerless would lie in the gift of those who are empowered and the law would fail in its function of protecting the weak.***


The Feeble-Minded

I am not a legal (or any other kind of) scholar. I have, however, experienced the effects of laws and legal opinions that “…[impose] burdens, [and cause] anxiety and the creating of demands…” that do not protect human dignity. If you have read anything I have written recently, you will know that my attention was arrested by (in addition to the legal questions of free speech and civil rights under the First and Fourteenth Amendments which are the writing topic for my classes) the word “Epileptics” in the name of the institution to which Carrie Buck was committed and where she was involuntarily sterilized. 

The point of all of this for me is: it seems as if we have not really come very far in the struggle for the protection of human dignity. As far as I know, I have never been discriminated against because I am epileptic or bipolar. (What would happen if I applied for Social Security disability because of the impairment of my functioning in the work place is interesting to speculate about, however.)  

PLEASE, IF YOU HAVE READ THIS FAR, EXPUNGE FROM YOUR MIND THE IDEA THAT I MEAN TO EQUATE ANYTHING I AM WRITING ABOUT FROM PERSONAL EXPERIENCE, epilepsy or bipolar disorder—or, for God’s sake, being gay—with feeble-mindedness. Nor am I implying that LGBT persons or epileptics are powerless. Get over it!  

I have been discriminated against for being gay. Need I point out that Tuesday’s vote in Maine is yet another example? 

This is not rocket science. Any nation that can refuse basic human rights to a group within its population (the right to marry, the right to hold property in common, the right to make life-saving decisions on behalf of one another, the right to bear children) is not far from—indeed, is exactly parallel with—a society that can say, “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.” 

This is exactly the same order of argument as “same-sex marriage threatens the institution of marriage.” 

I need say no more.

Except that it seems to me that any state that can, at one time in its history (less than 100 years ago), involuntarily commit persons to languish in institutions because they are epileptic can do so again. And any people that presumes to deny basic human rights to one group within itself can, whenever it so desires, deny any other human right to any other group.

The vote in Maine is but a symptom of a larger disease—the belief that the majority can play fast-and-loose with the freedoms and the lives of the minority. Sterilizing Carrie Buck is a travesty against human rights of exactly the same magnitude as denying same-sex couples to marry. We have, in fact, advanced virtually not at all since 1927.

* Buck v. Bell, 274 U.S. 207.
** Baker. Thomas E. “Clear and present dangers: the importance of ideas and the bowels in the cosmos. (The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies).” Constitutional Commentary 16.3 (Winter 1999): 485-490.
***Kaveny, M. Cathleen. “Imagination, virtue, and human rights: lessons from Australian and U.S. law.” Theological Studies 70.1 (March 2009): 109(31).  M. Cathleen Kaveny received her J.D. and Ph.D. from Yale University and is the John P. Murphy Foundation Professor of Law and Professor of Theology at the University of Notre Dame.



  1. I find it ironic that this monster of a man is your “hero”. If your mother had been living during his time you might not have been born.
    You would have been a “burden” on society and thus exterminated. This man was part of the eugenics movement in america that eventually led to Hitler adopting these ideas and committing the holocaust.


    • You either did not read what I said, or chose to ignore it. I said that his decision in Buck v. Bell was shocking. To imply that Holmes was somehow responsible for Hitler’s committing the holocaust is absurd. Well, no, it’s the logical fallacy of “afther this, therefore because of this.” Sort of like saying the Court’s decision that public schools can’t sponsor prayer is responsible for the rise in the rate of teen pregnancies in the ’80s and ’90s. Hitler developed his own theories of eugenics.
      Holmes himself knew the inherent dangers of sitting on the bench. In 1881 he wrote, “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”
      I would suggest you read the article I referenced by Cathleen Kaveny and get some perspective on the real issues of eugenics. I would also suggest that you achieve some perspective on the influence of the Supreme Court on social questions by reading:
      Klarman, Michael J. “Brown and Lawrence (and Goodridge). Historic rulings and how judicial decisionmaking influences social reform movements.” Michigan Law Review 104.3 (2005): 431+.
      Besides, I am not aware of tests either in the 1930s or now to determine in utero one’s sexuality or one’s genetic predispostion for Temporal Lobe Epilepsy.


  2. You have really great taste on catch article titles, even when you are not interested in this topic you push to read it



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