Buck v. Bell: Due Process of Law?

• Author: Walter Berns
• Date: 01 December 1953
• DOI: 10.1177/106591295300600409
• Published date: 01 December 1953
• Subject Matter: Articles

BUCK v. BELL: DUE PROCESS OF LAW?
WALTER BERNS
Louisiana State University
I
QUARTER OF a century has passed since Justice Holmes provided
the eugenical sterilization movement with a constitutional blessing
S~S and an epigrammatic battle cry. His opinion for the Court in Buck
v. Bell was regarded by eugenicists as the herald of a new day, and was
joined in by all his brethren except Justice Butler. Whether the latter
believed three generations of imbeciles were not enough, or that the num-
ber of generations was immaterial, we do not know, for while he did not
withhold his judgment, he kept his reasons for dissenting to himself.
The eugenicists, on the other hand, were anything but silent. Holmes, the
subject of so much adulation, was hailed by them as the new Prometheus,
and excerpts from his opinion continue to this day to add spice to their
literature.
Among political scientists concerned with constitutional law, the
decision seems to have been implicitly accepted as a return to the &dquo;true&dquo;
meaning of the due process clause. In his annual review of the Court’s
activities, Professor Cushman commented:
The Virginia act of 1924, which was attacked, had carefully safeguarded procedural
rights of those subject to the law so that no want of due process was made out on that
score. The substance of the law itself is upheld as a reasonable social protection, entirely
compatible with due process of law. Mr. Justice Holmes’ trenchant statement of this
warrants quotation.’
He then proceeded to quote at length what is surely one of the most
&dquo;totalitarian&dquo; statements in the history of the Court. The relevant part
reads:
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 ... in order to prevent our being
swamped with incompetence.’
If one accepts as a major premise that the state can demand of its
citizens the supreme sacrifice, it is a simple matter for tyrants and logicians
alike to reach the conclusion reached here by Holmes, that the state can
then demand every lesser sacrifice. But American government, and all non-
tyrannical government, is based on the recognition that there are greater
evils than death.
1 274 U.S. 200 (1927).
= R. E. Cushman, "Constitutional Law in 1926-1927," American Political Science Review, Vol. XXII
(February, 1928), p. 92.
3
Buck v. Bell, op cit., p. 207.
762

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763
Professor Swisher quotes the same passage from the opinion,4 beginning
where Cushman began and concluding where Cushman concluded -
where, in fact, practically every quotation from the opinion concludes:
&dquo;Three generations of imbeciles are enough.&dquo; 5 Slogans for placards, how-
ever, seldom provide the last word on a subject, and they are misused
when they have the effect of cutting off debate, particularly, as in this case,
when there can be no restitution for those affected by the decision. It is
true that the purposes of a Supreme Court opinion are difficult to specify
and achieve, and sometimes to reconcile one with the other; but surely one
purpose is to avoid speaking with the finality of this haughty epigram.
Was the Court so convinced of the wisdom of the decision that it found
no need for a qualifying word? What did Justice Brandeis, with his con-
cern for the facts, think about compulsory sterilization? We know what
Holmes thought. His mind on these matters was apparently made up long
before the case of Buck v. Bell got to the Supreme Court. Writing in the
Illinois Law Review in 1915, he said:
I believe that the wholesale social regeneration which so many now seem to expect,
if it can be helped by conscious, co-ordinated human effort, cannot be affected appreciably
by tinkering with the institutions of property, but only by taking in hand life and trying
to build a race. That would be my starting point for an ideal for the law.’
It is unfortunate that from a decision incorporating this view Justice
Butler dissented without comment. The point should have been made,
particularly for those who dissented so vigorously from the Field interpreta-
tion of it, that due process of law does require more than certain pro-
cedures, and that there are some things which decent government simply
should not do. One of these is to perform compulsory surgical operations
in order to satisfy the racial theories of a few benighted persons. To reduce
the due process clause to a guarantee of prescribed procedures is to permit
more than the public control of grain elevators, as libertarians since the
Gitlow case would be the first to acknowledge. A restricted interpretation
of the clause would have prevented the Court from interfering with Mayor
Hague’s brand of tyranny in Jersey City and with those local school boards
which have compelled children to salute the flag. If in the nineteenth
century state legislatures were passing laws which won the favor of the
liberal critics of the Court, they have, in the twentieth century, all too
frequently passed laws which strike the same critics as gross violations of
justice. The liberals’ quarrel should be with injustice, not with the legal
concept of substantive due process. Without the latter it would sometimes
be impossible to prevent the former.
4
Carl B. Swisher, American Constitutional Development (Boston: Houghton Mifflin Co., 1943), p. 815.
5
This phrase has attained such fame that in his monumental work on jurisprudence, Julius Stone,
mentioning the case only in a footnote, identifies it with this phrase in parentheses after the
citation. The Province and Function of Law (Cambridge: Harvard University Press, 1950), p. 598.
6
Quoted in Max Lerner, The Mind and Faith of Justice Holmes (Boston: Little, Brown &
Co., 1943),
p. 393.

---

764
II
Prior to Buck v. Bell, the sterilization laws of seven states had been
struck down by the courts, mostly for procedural reasons, but the Virginia
statute7 under which Carrie Buck was to lose her ability to have children
steered a prudent course around these reefs and arrived in Washington
fairly glistening with safeguards for the individual: notice, hearing, counsel,
and appeal by right to the courts. Such solicitude may have impressed
Butler. Certainly it was not his habit to be overawed by Holmes, and if he
had really believed that there was something inherently wrong in a law
which compelled a person to be deprived of what can surely be numbered
among the basic rights, he could have extrapolated something from her
counsel’s brief to support some kind of dissent. Certainly Holmes’s argu-
ment that &dquo;The principle that sustains compulsory vaccination is broad
enough to cover cutting the Fallopian tubes....&dquo; should not have been
permitted to escape at least examination. It is a broad principle indeed that
sustains a needle’s prick in the arm and an abdominal incision, if only in
terms of the equipment used. It becomes something else again in terms
of the results attained: no smallpox in the one case and no children in
in the other.
Perhaps the Court’s position was not easy. The eugenicists had painted
so lurid and so convincing a picture of an unsterilized America, with the
Carrie Bucks and their offspring cluttering the scene like germs under the
microscope in the Listerine advertisement, that even their opponents, how-
ever few in number at the time, were disquieted. Furthermore, no one, not
even her counsel, challenged the eugenical account; no civil liberties or-
ganization sprang forward to defend Carrie, yet one would assume that
children are as basic to the nation’s needs as speech. Nor is it even neces-
sary to elevate children to a &dquo;preferred position,&dquo; or take an intransigent
stand on natural rights, to disagree with this decision; a true pragmatist
could have dissented just as well.
Holmes, however, was following his &dquo;ideal for the law&dquo; when he said,
&dquo;... if they [the grounds for sterilization] exist they justify the result.&dquo; 8
But as one critic has written, &dquo;Justice Holmes assumes the efficacy of
sterilization, a judgment on which would be worthy of a minor prophet.&dquo; 9
It would be more accurate to say that the Court assumed that the legislature
possessed this gift of prophecy, which was an unwarranted assumption in
this case. It was impossible to discover how intensive the hearings before
the legislative committee had been, but the record of the litigation shows
7 Acts of the General Assembly, 1924, chap. 394.
8 Buck v. Bell, op. cit., p. 207.
9
John B. Gest, "Eugenical Sterilization: Justice Holmes vs. Natural Law," Temple Law Quarterly,
Vol. XXIII (April, 1950), p. 307.

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765
that the state tribunal, the Virginia Supreme Court of Appeals, had probed
no deeper into the substance of the eugenical argument than Holmes had;
it merely accepted without question the evidence submitted by Bell, the
superintendent of the state institution, and the testimony of his witnesses
at the hearing of the special board. The court then...