Supreme Court

Progressives and Eugenics: The Case of Justice Brandeis

Understanding the progressive movement's ugly record.

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In his superb new book Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era, Thomas C. Leonard of Princeton University tells the story of the "progressive scholars and activists who led the Progressive Era crusade to dismantle laissez-faire, remaking American life with a newly created instrument of reform, the administrative state." It's a fascinating and frequently depressing story. As Leonard documents, while the progressives did introduce a number of helpful, legitimate reforms, they also threw their weigh behind some of the most destructive government policies of the era, from race-based restrictions on immigration (justified in the name of protecting U.S. workers from degrading competition) to the South's racist Jim Crow regime (justified on the grounds that state officials should have broad leeway to control economic affairs). The progressives were "so convinced of the righteousness of their crusade to redeem America," Leonard observes, "that they rarely considered the unintended consequences of ambitious but untried reforms." I would also add that the progressives didn't just bestow vast new authority on the government, they also undermined many traditional checks on government power, such as judicial review. It was a foolproof recipe for the state-sanctioned abuses that followed.

Perhaps the most glaring example of this phenomenon is eugenics, a notorious branch of pseudo-science that was championed by most leading progressive politicians and activists and ultimately given the stamp of legal approval by progressive judicial hero Oliver Wendell Holmes Jr. Writing for the majority in the 1927 Supreme Court case of Buck v. Bell, Justice Holmes upheld the state of Virginia's efforts to forcibly sterilize a young woman who had been raped and impregnated by the nephew of her foster mother and sent to a home for the "socially inadequate" by her foster parents. "We have seen more than once that the public welfare may call upon the best citizens for their lives," Holmes wrote (likely alluding to his own military service in the Civil War). "It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices." The forced sterilization of Carrie Buck went forward.

Credit: Library of Congress

Writing recently in The New York Times, David Oshinsky reviews Leonard's Illiberal Reformers and confronts the ugly legacy of the progressive movement. In one notable passage from that review, Oshinsky puzzles over the fact that Justice Louis Brandeis, a progressive luminary best remembered today for his legal advocacy on behalf of privacy and "the right to be let alone," also signed on to Holmes' notorious pro-eugenics decision.  

"Why did Justice Brandeis, the so-called people's attorney, join the majority?" Oshinsky asks. Perhaps "Brandeis may have been trying to placate Holmes," his frequent ally in other cases, Oshinsky suggests. "Or perhaps Brandeis truly believed in using state power 'to create a better world' through sterilization. Both versions are plausible, but the evidence is flimsy."

Brandeis is an admirable jurist in certain ways, but it's not like Buck v. Bell is the only blemish on his otherwise shiny legal career. Most feminist legal scholars today, for example, look none too kindly on the sexist, collectivist brief that Brandeis filed as a lawyer on behalf of the state government in Muller v. Oregon. At issue in that 1908 case was a state regulation that forbid women from working more than 10 hours per day in a laundry. According to Brandeis, the law was perfectly justifiable because the state had a special interest in controlling the ways in which women used their bodies. Because those bodies might give birth to future generations, Brandeis argued, they counted as a form of collective property. "The overwork of future mothers," Brandeis wrote, "directly attacks the welfare of the nation." The Supreme Court agreed with Brandeis. "As healthy mothers are essential to vigorous offspring," the Muller decision held, "the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race."

And then there's the fact that in 1928, one year after voting in support of eugenics, Brandeis invoked Buck v. Bell in another case, in which he cited the Buck v. Bell ruling as a permissible example of the government "meeting modern conditions by regulation." Perhaps the evidence against Justice Brandeis isn't so flimsy after all.

Related: Louis Brandeis' Partial Justice

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  1. The progressives were “so convinced of the righteousness of their crusade to redeem America,” Leonard observes, “that they rarely considered the unintended consequences of ambitious but untried reforms.”

    Thank God that’s no longer the case.

  2. Brandeis is an admirable jurist in certain ways, but it’s not like Buck v. Bell is the only blemish on his otherwise shiny legal career.

    Five generations of Brandeis admirers are enough?

    1. Brandeis had some good rulings. He also had some real stinkers. He was the Scalia of his time.

  3. Fun fact about Brandeis – in 1916, the court with a conservative majority overruled the Harrison Narcotics Act. Three years later, with Brandeis being the only shift, was the deciding vote in a 5-4 decision that allowed it. His joining the court changed the make-up and, more importantly, allowed the progressive judges to side with the government in allowing it. That was the start of a long history of using taxation as a means of backdoor regulation. Roosevelt would later apply it to guns and marijuana in the 1930’s. He would then of course rubber stamp FDR’s New Deal regs.

    The conservative justices all dissented (none of whom were flawless on endorsing liberty):

    THE CHIEF JUSTICE dissents because he is of opinion that the court below correctly held the act of Congress, insofar as it embraced the matters complained of, to be beyond the constitutional power of Congress to enact because, to such extent, the statute was a mere attempt by Congress to exert a power not delegated — that is, the reserved police power of the states.

    MR. JUSTICE McKENNA, and MR. JUSTICE VAN DEVANTER and MR. JUSTICE McREYNOLDS concur in this dissent.

    1. Do any of those names sound familiar? Not to me! Definitely some loser judges.

      1. McReynolds and van Devanter were 2 of the Four Horsemen (along with Butler and Sutherland).

  4. Those aren’t the real progressives. They are all in the Republican party now.

    1. Bernie is not the real socialism 1111111111

  5. This is an example of progressives whitewashing their own history. It’s not shocking at all that Brandeis would sign on for eugenics. Oshinsky is asking the wrong questions. Holmes, the story goes, wasn’t really progressive but voted against his personal opinions because of the will of the people, the true righteousness of the progressive cause, and other such BS. They can deny some of his uncouth opinions today. Eugenics was strongest among progressives and those on the left in America if not isolated to them. Their arguments were firmly grounded in Marxist class warfare and not the Constitution which they saw as an outdated relic.

    By asking why Brandeis signed on, it makes it sound as if it was unusual for a progressive at the time. I don’t even think the NYT writer is mendacious here. He’s just a buffoon applying his modern sensibilities onto the past without realizing that the principles he supports today would completely allow the government to do what Brandeis voted for on the Court.

      1. I’m aware and throw it in the face of the Bernie supporters frequently when they mention how ‘democratic socialism’ is totally different than socialism socialism.

        1. Hey, Jim Crow wasn’t racism racism, it was democratic racism (in more ways than one ifyou knowwhatImean). What would be an evil act if undertaken as an individual becomes sanctified when dedicated to the Lord Democracy Almighty.

  6. Wait…wasn’t the article supposed to be about Progressive eugenics or did I misunderstand something? I feel like I’m back to grading students who didn’t give themselves time to complete their essays and just tried to wing it and turned something in half-finished…

    1. Maybe you just aren’t very bright?

      1. /Sarc meter check it. =D

        1. +1000 not-a-dumbass points to Shit Pyrate. Brochettaward….well….

  7. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” Holmes wrote (likely alluding to his own military service in the Civil War). “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.” The forced sterilization of Carrie Buck went forward.”

    When people imagine pure evil they think of the Nazgul or Darth Vader. Evil is banal as hell, in reality it doesnt wear a black ro……oh wait. Never mind.

    1. I hated “The Good Earth” … I wish they had prevented Pearl S. Buck from ever writing again.

  8. Also, looking for advice from members of Reason. Someone I know was recently arrested on a probation violation. He is a complete asshole with a drinking problem. The asshole who called the cops claims he did it to get the person help, and this is a good chance to force him to do so. It probably is possible to get a judge to rule, but I’m of the opinion that this will likely be counterproductive and amount to nothing. He does need to clean himself up, but it seems ridiculous to turn to the legal system to do so. And guaranteed to provoke a negative reaction from the individual who is already a moody cunt. Getting someone arrested on bullshit is usually a bad way to show them the error of their ways.

    PS – the cops tacked on two bullshit felony charges of resisting with violence and battery against an EMT (nothing happened).

      1. He’s broke and I aint shelling out thousands for his sorry ass.

        1. Hmmm…then I guess it’s the Public Defender for him.

          1. “Plead guilty and throw yourself on the mercy of the court.”

    1. PS – the cops tacked on two bullshit felony charges of resisting with violence and battery against an EMT (nothing happened).

      Probation violation plus those charges? They love to tack it on. I assume this person is going to be spending a decent amount of time inside of a county jail, and then he will be subjected mandatory counseling after he gets out.

    2. Sounds to me like he’s fucked. I’d suggest after he gets sent to prison on the felony rap, pithily ask the asshole who called the cops in order “to get him help” how much help they think he’ll get in prison. It won’t change anything but it might at least make you feel a little better, and might also teach the busybody asshole to mind their own fucking business in the future.

      1. He’ll get helped to a few beatings?

    3. This person you know will only find help at one source: himself.

      I have been down this road before, more than once. The people I tried to help that turned their lives around only did so because they decided they were going to. The ones that didn’t were just train wrecks that never finished crashing until they finally did.

      I finally figured out that there was a fair amount of personality disorder / mental unbalance involved with the ones who couldn’t pull out of the tailspin…mostly borderline personality disorder. They were completely self absorbed and obsessed with the unfairness that life dealt them. They couldn’t see that everyone is just like them…born naked, scared and confused as hell having to bumblefuck their way through life without a trial run. Life hands everyone turd after turd and they just couldn’t accept that. They thought their inability to accept that and thus handling it badly meant that their turds were worse than everyone else’s, and thats not fair. So, they self medicated, blamed everyone else and self destructed.

      There is nothing you can do to stop that. Wash your hands.

      1. I like to explain it with a joke:

        How many therapists does it take to change a lightbulb?

        Just one but the light bulb has to want to change.

    4. The asshole who called the cops claims he did it to get the person help

      Article by Robby’s Hair:
      Woman Calls Non-Emergency Number to Get Help for Suicidal Boyfriend. Cops Arrive, Kill Him.
      ‘They shot him because that’s what we do’

    1. This is context for what the NYT reviewer said:

      “The vote was 8-1 ? the lone dissenter being Pierce Butler, one of the infamous Four Horsemen. Butler wrote no opinion and offered no explanation, but as the only Roman Catholic on the court, “he was no doubt aware,” Cohen writes, “of the deep reservations the Church had about interference with human procreation.””

      1. Although, as the quote from Piux IX indicates, there was a concern about mutilation of any part of the body, not just the genitals.

          1. Good thing you caught that. I was all, like, “Pius IX”? What a dolt. Everyone knows it was Pius XI.

  9. “As healthy mothers are essential to vigorous offspring,” the Muller decision held, “the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”

    The Centers for Disease Control agrees.

  10. There is nothing wrong with eugenics, provided it is practiced in a non-coercive and scientifically sound manner.

    Someone could make an organized effort to persuade people to FREELY AND WILLINGLY get tested for the CF mutation, and to take measures to avoid passing it on to subsequent generations. This would be eugenic, but also non-coercive and scientifically sound. Therefore, ethical.

    1. Yes, if you redefine eugenics — i.e. controlled breeding — to mean something else — i.e. selective breeding — then yes you can magically make it ethical.

      And voila, we already have such “eugenics”.

      1. Controlled breeding is ok, if it is SELF-controlled.

        1. Then it’s not eugenics, is it?

          Eugenics is a government policy and/or social stricture. You being choosy about where you stick your dick is not eugenics.

          1. From Dictionary.com:

            “the study of or belief in the possibility of improving the qualities of the human species or a human population, especially by such means as discouraging reproduction by persons having genetic defects or presumed to have inheritable undesirable traits (negative eugenics) or encouraging reproduction by persons presumed to have inheritable desirable traits (positive eugenics)”

            Nothing about “government” there, nor about “coercion” nor about “control”

            1. It seems strange to me that we can breed dogs and all sorts of animals for characteristics like intelligence, endurance, or the ability to live in different harsh environments, but any talk of those same processes working with people is denounced as pseudoscience. From what I have been able to learn, much of the science is pretty sound. It is just that putting it to any practical use with humans is unethical. Which is different than saying that it is scientifically unsound.

              1. From what I have been able to learn, much of the science is pretty sound. It is just that putting it to any practical use with humans is unethical. Which is different than saying that it is scientifically unsound.

                Science is the scientific method. A bunch of navel-gazing ubermenschen fantasies does not become science because “cats and dogs”.

                1. ^+1 sanity

  11. No, no. You got it all wrong. Progressives back then were really conservatives so you’re actually arguing against libertarians!

    Win!

    1. Yeah, by that reasoning Pius XI and Pierce Butler were progressives.

      1. According to the NYT review, giving what I presume is becoming the official line, “If one part of progressivism emphasized fairness and compassion, the other reeked of bigotry and coercion.”

        Sometimes kindly Dr. Jekyll turns into Mr. Conservative.

    2. You speak derp just a little too well.

  12. The progressives were “so convinced of the righteousness of their crusade to redeem America,” Leonard observes, “that they rarely considered the unintended consequences of ambitious but untried reforms.”

    The more things change, the more they stay the same. Fuckers haven’t learned a damned thing.

    1. they rarely considered the unintended consequences of ambitious but untried reforms

      This assumes that many of the horrible things that they supported were not actually the desired results.

      Tell me, for example, that the racism of their immigration and Jim Crow policies weren’t the desired results. Convince me that forcible sterilization wasn’t a desired result of their eugenics policies.

      The parade of horribles isn’t an accounting of incidental or second-order effects of their policies. They are the actual, desired outcomes of their policies; exactly what they wanted to have happen.

      1. Winner!

        The Left wins because the human population is too innocent to believe that The Left *intends* the predictable consequences of their actions.

        The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognize their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just round the corner there lay a paradise where human beings would be free and equal. We are not like that. We know that no one ever seizes power with the intention of relinquishing it. Power is not a means, it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now do you begin to understand me?

  13. while the progressives did introduce a number of helpful, legitimate reforms

    Like what?

    1. Well SIV since you are a Trump supporter.
      Mercantilism
      State enforced Unionism
      Jim Crow Laws
      Minimum wage laws
      Price Controls
      Gun control Laws
      Forced sterilization
      Drug, and Alcohol Prohibition
      Oh Yeah. Women finally got there natural, negative right to vote.
      That was the only positive accomplishment “Progressives” have ever achieved.

      1. Voting is not a natural or negative right. There is no government in nature, and there has to exist a government in order for it to provide you with a vote.

          1. The right to free association is a natural, negative right.

            1. The right to free association is abridged by the mere institution of government; voting is but a pale imitation of that right, and as experience has shown, makes a mockery of the rights of people.

            2. What does that have to do with voting? It’s a stretch to say that democracy – a means by which a majority forces its will on a minority – is akin to free association.

              1. democracy – a means by which a majority forces its will on a minority – is akin to free association.

                Democracy is a logical fallacy.

          2. Why would you bring up an assembly restricted to freemen (= not women and not slaves) in the context of a discussion spawned by the “positive accomplishment” of expanding the franchise?

            1. Why would you bring up an assembly restricted to freemen (= not women and not slaves)

              Why would Ben Franklin bring up that same subject ? =D

              1. There is a big difference between wanting a Government, and having to chose what type of Government you are going to create.

      2. How is voting “helpful or legitimate”?

        1. Non-voting, non-consenting subjects endure a more unjust tyranny than voting, non-consenting citizens.

          Republican democracy is an imperfect system, but there are worse options.

  14. Damon Root you are speaking my language. =D

  15. Why did Justice Brandeis, the so-called people’s attorney, join the majority?”

    Why wouldn’t the people’s attorney support eugenics directed against minorities? There’s nothing in “the people’s” that suggest respect for minorities, who are at best a small part of the people, if the sort of people who talk sincerely about “the people” even consider them to be part of the people at all.

  16. “Why did Justice Brandeis, the so-called people’s attorney, join the majority?” Oshinsky asks.

    Because the “people” in “people’s attorney” refers to wealthy Protestants of Germanic descendent (otherwise known as “white people” unlike those filthy non-white southern Europeans).

  17. eugenics, a notorious branch of pseudo-science

    SJW nonsense, virtue signaling. Eugenics is no more a pseudo-science than is breeding animals for certain characteristics.

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