Are You Kidding Me?

In the 1927 case Buck v. Bell, the Supreme Court of the United States declared, eight to one, that forced sterilization laws were perfectly constitutional. Oliver Wendell Holmes, so often the hero of the Lochner era, wrote the opinion. Louis Brandeis and Harlan Stone, two great liberal Justices, joined that opinion. Holmes' argument was basically that this was a small sacrifice to ask people to make for the betterment of society. A few choice quotes:

"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."

This case would have been unanimously decided the other way at any time in our nation's history after 1945. Under modern doctrines which hold that contraception and abortion and "gay sodomy" (Scalia loves to bring up that term; I think he thinks he'll get people to vote with him out of pure "ickiness" factor) are protected rights, that legal result would be immediate, but that's not the point. Before World War Two, eugenics was seen as a reasonable idea. Now it's seen as Hitler, and not without reason. But ultimately this law should stand or fall based on its own nature, not what someone else did under the same banner of eugenics.



I could argue this case on so many different grounds. I think Equal Protection ought to get it done. Likewise, I think sterilization would be cruel and unusual punishment if given as punishment for crime, and I think it's beyond the bounds of what you can do to people other than as punishment for crime. To uphold a forced sterilization law is to deny any rights over one's own body: it is to allow the state to literally cut into the body of anyone it doesn't like, because it would rather that person's progeny not come into being. This is, moreover, punishing people for the supposed wrongs their offspring might commit. Not even their wrongs, and not even wrongs that have been committed. Both violate fundamental principles of criminal justice. And lest we think that this isn't punishment, and therefore isn't a criminal justice matter, I'm sorry but cutting into someone and destroying one of their organs, and with it one of the major components of natural liberty that people can be thought to possess, because you dislike that person, is punishment. God this case is disgusting.

It also reminds me why I don't really love the word 'progressive.' Because progressives loved the idea of eugenics. Okay, not all of them, but the people who liked eugenics in this country tended to be progressives. And you can sort of see why, in a twisted way: if we want to "progress" toward a better society, why shouldn't one of the ways we do that be by making people get, progressively, better? If you just tell me I'm a progressive, I'm not sure how I can object to that. If you tell me I'm a liberal, then it's obvious: yeah, we might make society better (although we might not; messing with human nature isn't exactly easy), but at what cost to liberty? Answer: a too damn high cost! It strikes me that "progressive" can at most tell you that the better world we're seeking is not one that existed in the past, etymologically speaking. Progress toward a world where all the "unfit"s have been weeded out is a kind of progress. It's, among other things, an awful progress in and of itself, and it also can only be had by doing some really unspeakable things. It's deeply illiberal, in other words. But it is progress.