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The “born free and equal” clauses and the noxious Buck v. Bell

This is the fifth of seven introductory articles on the relevance for constitutional law and the Supreme Court of the “born free and equal” clauses, which appeared in the Declaration of Independence and in six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791, in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868, and is in 37 out of 50 state constitutions today. The “born free and equal” clause of the Massachusetts Constitution of 1780, for example, provided that : Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. In my initial articles, I showed that the “born free and equal” idea is deeply rooted in American history and tradition as that phrase is used in such correctly decided cases as Washington v. Glucksberg (rejecting a right to assisted suicide), McDonald v. City of Chicago (recognizing that the Second Amendment’s right to own a handgun for self-protection extends to the states), and Dobbs v. Jackson Women’s Health Organization (overturning Roe v. Wade ). In the second and third article, I argued that while the 14th Amendment does not give rise to a “right to privacy,” it does through the privileges or immunities clause constitutionalize the “born free and equal” clauses, subject to rational basis review, which justifies the outcome, although not the opinions in 1965’s Griswold v. Connecticut (holding that states may not criminalize the use of contraceptives by married couples) and in 2003’s Lawrence v. Texas (holding that states may not criminalize same-sex “sodomy”). And in my fourth article , I examined the application of the “born free and equal” clauses to yet another famous “right to privacy” case: 2015’s decision in Obergefell v. Hodges , which correctly found a national constitutional right to same-sex civil marriages. Today I turn to one of the most atrocious rulings in Supreme Court history: the 1927 case of Buck v. Bell , in which the court, 8-1, upheld a model eugenics statute. Specifically, a Virginia act allowed the compulsory sterilization, for the supposed “protection and health of the state,” of anyone who was deemed by a “social worker” to have genes resulting in feeblemindedness, unfitness, or an intellectual disability. Only a perfunctory hearing was allowed to those who were compulsorily sterilized. This statute did not come out of nowhere. Rather, such eugenics laws were first championed in 1883 by the social Darwinist Sir Francis Galton, a second cousin of Charles Darwin who chillingly believed that there were many different human “races” on the earth and that those races of human beings were competing for what psychologist and philosopher Herbert Spencer called “the survival of the fittest.” Galton, who was fascinated by the concept of animal breeding of dogs and racehorses, dreamed of applying this to human beings so as to promote the most intelligent, physically strong, and beautiful or handsome of them. (Darwin himself had hinted at such an idea in “The Origin of Species,” and mentioned it in his 1871 book “ The Descent of Man .”) Support for eugenics laws became an orthodox staple of the creed of the Progressive Era. In one letter, President Theodore Roosevelt stated that: Society has no business to permit degenerates to reproduce their kind … Any group of farmers who permitted their best stock not to breed, and let all the increase come from the worst stock, would be treated as fit inmates for an asylum … Some day we will realize that the prime duty, the inescapable duty of the good citizens of the right type is to leave his or her blood behind him in the world; and that we have no business to permit the perpetuation of citizens of the wrong type. The great problem of civilization is to secure a relative increase of the valuable as compared with the less valuable or noxious elements in the population … The problem cannot be met unless we give full consideration to the immense influence of heredity. Woodrow Wilson, the other major Progressive politician of the first part of the 20th century, signed a eugenics bill into law as governor of New Jersey. Other famous eugenicists included William Howard Taft ; Margaret Sanger (the founder of Planned Parenthood); and Winston Churchill. Indeed, as home secretary from 1910 to 1911, Churchill argued for eugenic government intervention regarding people categorized at the time as “feeble-minded” or “insane.” In addition, major early philanthropic foundations like the Carnegie Institution and the Rockefeller Foundation provided extensive financial grants to eugenics organizations, such as the Eugenics Record Office at Cold Spring Harbor Laboratory, under the direction of leaders and trustees who subscribed to the pseudoscience of the era. This extended to the universities as well. James Rowland Angell , who was president of Yale from 1921 t0 1937, and Charles William Eliot , who was president of Harvard from 1869 to 1909, were outspoken and virulent eugenics supporters. (Elliott served as a vice president to the first International Eugenics Congress held in London in 1912.) The court itself perhaps most prominently embraced this movement in Buck v. Bell . In upholding Virginia’s compulsory sterilization law, Justice Oliver Wendell Holmes, Jr. wrote for the majority that: 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. In the wake of the Supreme Court’s ruling, 70,000 Americans were compulsorily sterilized, and 32 states ended up adopting compulsory sterilization statutes like Virginia’s. Nazi jurists and race hygienists studied U.S. sterilization statutes, such as California’s eugenics programs, as well as the Buck v. Bell decision. These laws inspired Adolf Hitler’s Nazi government to pass a German eugenics law in July 1933 entitled a “Law for the Prevention of Offspring with Hereditary Diseases” a few months after the Nazis came to power. Ultimately, 400,000 people were sterilized by the German law. The same racist ideology that led to these compulsory sterilizations in Hitler’s Nazi Germany undoubtedly helped fuel the ideas behind the Holocaust. Such ideas could not be in greater contrast to the Lockean principle that “All men are born free and equal.” That idea was thriving in the 1780’s when the Constitution was adopted; it was thriving during Reconstruction and in President Abraham Lincoln’s Gettysburg Address; but by 1912 it had effectively died out. The “born free and equal” idea only reemerged in 1948 as an Article I right in the Universal Declaration of Human Rights after the horrors of the Nazis and the Holocaust began coming to light. *** Buck v. Bell was egregiously wrong not only as a matter of morals, but under the “birthright equality” principle that underlies the citizenship clause of the 14th Amendment. Citizens, as I explained in my prior articles, are born equal (i.e., they are born to be neither slaves nor lords). The citizenship clause grants equal rights unto the feeble-minded and the geniuses of this world alike. The right to have children, like the right to marry (the purpose of which is often to have children) is obviously deeply rooted in American history and tradition. The Preamble of our Constitution states that one of the six purposes of that document is: “To secure the Blessings of Liberty to ourselves and our Posterity ”. It goes without saying, I think, that a government which is compulsorily sterilizing its citizens based on a social worker’s finding of feeblemindedness is not securing the “Blessings of Liberty to ourselves and our Posterity .” The landmark 1823 decision of Corfield v. Coryell , which I have previously said is the 14th Amendment’s version of the “born free and equal” clauses, stated that: The inquiry is, what are the privileges and immunities of citizens in the several states? … They may … be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people]. As noted, Americans cannot “enjoy … life and liberty” or “pursue and obtain happiness and safety” if they face the risk of compulsorily sterilization. But can such laws then be justified under Coryell ’s rational basis test (in bold), i.e., that such laws are “just” and are enacted for the “general good of the whole [people]?” Certainly not. A government that could compulsorily sterilize the feeble-minded would also be able to compulsorily sterilize any population that has fallen out of favor, whether Jewish or Black people, Native Americans, or Latinos. Nor, even if such a policy for the “feebleminded” was justified, could it be properly implemented (as was true in Buck’s very own case ). The Supreme Court distinguished but did not overrule Buck v. Bell in 1942’s Skinner v. Oklahoma after it became terribly apparent what eugenics led to. Someday, the Supreme Court should formally overrule this terrible precedent. In the meantime, Harvard Law School should cancel its annual, prestigious “Oliver Wendell Holmes Lecture.” Three generations of Holmes Lectures are enough.

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