Today in Supreme Court History: May 2, 1927

5/2/1927: Buck v. Bell decided.

Comments

[Dan Schiavetta]

Buck v. Bell, 274 U.S. 200 (decided May 2, 1927): the infamous "three generations of imbeciles are enough" case, opinion by Holmes (whose father was an early supporter of Darwin); upholding state sterilization law (procedural safeguards not at issue); never explicitly overruled

Weems v. United States, 217 U.S. 349 (decided May 2, 1910): Philippine Bill of Rights (at that time a territory of the United States) is congruent with our Bill of Rights; statute as to making false entry in cash book requiring twelve years plus of hard labor plus permanent disqualification from voting and from public office is "cruel and unusual punishment"

Montana v. Wyoming, 563 U.S. 368 (decided May 2, 2011): Wyoming can switch method of irrigation consistent with Yellowstone River Compact of 1951 (between Montana, Wyoming and North Dakota) so long as same acreage is irrigated (Wyoming switched from flood to sprinkler irrigation, a more efficient method which resulted in less water being returned to the river for downstream Montana use) (OT, but -- I went across the country to California for law school, and was awakened rudely at 2 a.m. by sprinklers outside the dorm -- what the heck? are they so desperate to have green grass in this semi-desert? if they'd rather live in Connecticut why don't they move there?? -- it reminded me of what Mark Twain wrote in "Roughing It":

"One of the queerest things I know of, is to hear tourists from 'the States' go into ecstasies over the loveliness of 'ever-blooming California'. But perhaps they would modify them if they knew how old Californians, with the memory full upon them of the dust-covered and questionable summer greens of Californian 'verdure', stand astonished, and filled with worshipping admiration, in the presence of the lavish richness, the brilliant green, the infinite freshness, the spend-thrift variety of form and species and foliage that make an Eastern landscape a vision of Paradise itself. The idea of a man falling into raptures over grave and sombre California, when that man has seen New England's meadow-expanses and her maples, oaks and cathedral-windowed elms decked in summer attire, or the opaline splendors of autumn descending upon her forests, comes very near being funny. No land with an unvarying climate can be very beautiful. The tropics are not, for all the sentiment that is wasted on them. They seem beautiful at first, but sameness impairs the charm by and by. Change is the handmaiden Nature requires to do her miracles with. The land that has four well-defined seasons, cannot lack beauty, or pall with monotony. Each season brings a world of enjoyment and interest in the watching of its unfolding, its gradual, harmonious development, its culminating graces—and just as one begins to tire of it, it passes away and a radical change comes, with new witcheries and new glories in its train. And I think that to one in sympathy with nature, each season, in its turn, seems the loveliest."

United States v. Alvarez-Sanchez, 511 U.S. 350 (decided May 2, 1994): 18 U.S.C. §3501, restricting federal court use of confessions made after six hours in custody, does not apply if the custody was on state charges (confession to counterfeiting made after being held for three days on state narcotics charge) (the "silver platter doctrine" crawls out of its coffin!)

Huddleston v. United States, 485 U.S. 681 (decided May 2, 2021): "similar acts" of prior receiving of apparently stolen TV's from same source was admissible in trial on possession of stolen videotapes to show knowledge that they were stolen

Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717 (decided May 2, 1988): no antitrust violation by supplier who upon request of another supplier stopped selling to plaintiff dealer if no price fixing involved

Kolender v. Lawson, 461 U.S. 352 (decided May 2, 1983): anti-loitering statute requiring suspect to provide "creditable and reliable" identification struck down on vagueness grounds

Linmark Associates, Inc. v. Willingboro Township, 431 U.S. 85 (decided May 2, 1977): To combat "white flight", town prohibited "for sale" and "sold" yard signs. Court holds that this is a First Amendment violation.

Shurtleff v. City of Boston, Mass., 596 U.S. --- (decided May 2, 2022): violation of Free Exercise to not allow organization to fly its "Christian flag" at the one of three flag poles at plaza in front of City Hall reserved for organization staging that day's events (the other two flag poles show the United States flag and the Massachusetts flag, and on non-event days the City of Boston flag flies on the third pole)

Newberry v. United States, 256 U.S. 232 (decided May 2, 1921): Congress was outside its powers of regulation of federal elections (art. I, §4) when it placed limits on how much a candidate can spend on his primary campaign

[John F. Carr]

Here is a Massachusetts law on identifying oneself:

A police office taking cognizance of any such violation may request the offender to state his name and address. Whoever, upon such request, refuses to state his name and address, or states a false name and address or a name and address which is not his name and address in ordinary use, shall be punished by a fine of not less than twenty nor more than fifty dollars.

One does not need to give a "legal" name as recorded in government records or hand over any ID.

[Dan Schiavetta]

thanks!

[apedad]

Re: Buck v Bell

Facts of the case

Carrie Buck was a “feeble minded woman” who was committed to a state mental institution. Her condition had been present in her family for the last three generations. A Virginia law allowed for the sexual sterilization of inmates of institutions to promote the “health of the patient and the welfare of society.” Before the procedure could be performed, however, a hearing was required to determine whether or not the operation was a wise thing to do.

Question

Did the Virginia statute which authorized sterilization deny Buck the right to due process of the law and the equal protection of the laws as protected by the Fourteenth Amendment?

Conclusion (8 - 1)

The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck’s challenge was not upon the medical procedure involved but on the process of the substantive law. Since sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case, if so requested by the patient. Only after “months of observation” could the operation take place. That was enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia’s in order to prevent the nation from “being swamped with incompetence . . . Three generations of imbeciles are enough.” (oyez)

The Virginia statute that Buck v. Bell upheld was designed in part by the eugenicist Harry H. Laughlin, superintendent of Charles Benedict Davenport’s Eugenics Record Office in Cold Spring Harbor, New York.

Laughlin saw the need to create a “Model Law” that could withstand constitutional scrutiny, clearing the way for future sterilization operations. The Nazi jurists designing the German Law for the Prevention of Hereditarily Diseased Offspring based it largely on Laughlin’s “Model Law”, although development of that law preceded Laughlin’s. Nazi Germany held Laughlin in such high regard that they arranged for him to receive an honorary doctorate from Heidelberg University in 1936. (wiki)

Ugh….a century later I hope we’re better than this.

[Dan Schiavetta]

The eugenics movement gave evolution a bad name. If one accepted natural selection, then it seemed one must accept eugenics. (The textbook at issue in the Scopes “monkey trial” of 1925 , “Civic Biology”, also made this connection.) What did not exist at the time (and what a lot of people still don’t understand) was the experimental analysis of behavior (most directly expressed in the “behaviorism” school) which showed that behavior is also the product of natural selection. This extends to ethics, which involves the more remote consequences of one’s behaviors. The most basic example is the “Golden Rule” (do unto others . . . ). Prehistoric tribes that developed this rule stayed together, for reasons one can easily see, while tribes that didn’t, fell apart (or maybe never got together in the first place). And the development of ethics through natural selection continues, even into recent years: some things that were formerly thought to be o.k. are now thought wrong, and vice versa.

[Brett Bellmore]

"If one accepted natural selection, then it seemed one must accept eugenics."

But if one accepts human rights, then it seems one does not have to accept compulsory eugenics. But would instead favor eugenics by persuasion.

I think when germ line genetic engineering finally gets some acceptance, the reputation of eugenics might be redeemed. Only "might"; It's quite possible that government coercion, rather than voluntary adoption, might again poison the concept's reputation.

" And the development of ethics through natural selection continues, even into recent years: some things that were formerly thought to be o.k. are now thought wrong, and vice versa."

Probably worth remembering here that natural selection can take a while to set in, especially if the effects are delayed a bit. I suspect you're going to see quite a bit of natural selection over the next few generations, weeding out anti-natal ethics just because the people who adopt them don't have kids.

[Dan Schiavetta]

Ethics usually get codified into what you call governmental coercion. Murder, for example, is against the law and carries a stiff penalty.

[Brett Bellmore]

And that's what is really delaying the impact of natural selection here; Anti-natalist policies are being adopted by the government, suppressing reproduction even by people who don't favor them.

We're currently selecting for people who are so determined to reproduce that they will do it even if government actively discourages it. Natural selection continues to operate, but it will really have to push a strong signal to overcome government policy.

[Sarcastr0]

Not sure the timescale checks out for our current policies to really care about natural selection effects.

[Dilan Esper]

That's often not true of "medical ethics" issues, though. There's a whole bunch of things that are legal to purchase that various ethicists say should not be available.

Diana Fleischman, who is a hardcore Darwinian, did a pretty good post making Brett's point about the potential rehabilitation of eugenics. I don't endorse it, but it is provocative.

https://dissentient.substack.com/p/eugenicist

[ReaderY]

What’s the scientific basis for accepting the existence of human rights? The eugenics movement provides a cautionary tale that science and scientists should not necessarily dictate ethical questions.

Moreover, while scientists can explain ethics, in the sense of coming up with a plausible story fitting with their worldview that fits ethical judgments, religion can do the same. What scientists can’t do is predict future ethical decisions, just as they can’t predict future human history very well generally. The explanations they come up with are never testable. They’re not falsifiable. They’re accepted because they seem plausible and fit in with the assumptions of the worldview. That means they’re not really scientific explanations. They are pseudoscientific explanations. They speak in the language of science, the rhetoric of science. But they don’t communicate any actual scientific knowledge. There’s no reason to orefer them to religious or any other kind of explanation.

[ReaderY]

Bertrand Russell famously said that while he thought his distaste for torture to be different in kind from his distaste for broccoli, he could offer no solid proof why this might be so. He knew the limits of his system of thought in a way many people today do not.

[Dan Schiavetta]

Religion has changed its rules of behavior over the years because it was either prompted, coerced or bludgeoned into doing so by secular forces. Ethics was around before the beginning of religion and will survive the end of it. You can even see it in animals, who sometimes exhibit what we would call selfless behavior.

[John F. Carr]

One of the challenges of evolutionary theory is explaining the origin of non-selfish behaviors. It's harder than explaining why giraffes have long necks.

[Dan Schiavetta]

Operant (unprovoked) behavior is unexplained and that’s fine. Maybe internal behaviors have their own mutations which occasionally manifest in external behavior. To seek “explanations” is just a cover for finding that “homunculus” inside us (or maybe a “God” who, human-like, lays down laws). It is no explanation at all. For me it is enough just to observe and deduce. Selfless behaviors somehow evolved and are reinforced by the resulting survival and flourishing of the species.

[Artifex]

I am not seeing this. Cooperation is a stunningly effective survival mechanism.

[Brett Bellmore]

Even cross-species cooperation. You'd never have gotten those little birds cleaning the teeth of alligators, if the alligators had been relentless about chowing down on them. A default towards cooperation has long term evolutionary payoffs, even when it's sub-optimal in the very short run.

[ReaderY]

Rape can be a very effective way of spreading ones genes. Slavery is a perfectly normal natural phenomenon, as is parasitism generally. Lies, deceipt, theft, etc. are also very effective survival mechanisms many species specialize in. Same with dominant males who maintain harems and prevent weaker males from reproducing. I could go on. Every time there’s a good “scientific” sounding explanation for the ethical position you hold, there’s generally a perfectly good “scientific” sounding explanation for the ethical position you don’t hold. Without falsifiability, you can come up with a nice, plausible-sounding, “scientific” sounding explanation for essentially anything, free of consequences.

[Dan Schiavetta]

Did you read what I said above about natural selection as applied to standards of behavior?

[ReaderY]

Look more closely at whose comment I’m replying to.

[Artifex]

You seem a bit confused. There is no argument that ethics and science are different things. They are fundamentally independent variables, capeesh ?

On the other hand the "origin of non-selfish behavior" is not mysterious at all. It is an idea that has ramifications in the real world that can actually be checked for consistency. That's "falsifiable" to you law types. As a perfect example both social insects and the entire class Mammalia say "hello".

[defaultdotxbe]

Just because one behavior is beneficial doesn't mean a different, or even opposite behavior can't also be beneficial. There are many niches where life can exist, if one niche is filled organisms can and do evolve to fill a different one (or else go extinct)
Its not hard to imagine a species where dominant males maintains a harem as you describe, but a genetic mutation in a number of weaker males leads them to cooperate with each other and form a separate troop, an entirely separate breeding population which eventually becomes a distinct species.

[ReaderY]

What’s happening here is that you start with what you already believe in – cooperation – and then come up with a scientific-sounding explanation for it, as cooperation indeed exists in nature. But if you started with wantIng/believing in the opposite – competition, domination, exploitation – you could equally well come up with a scientific-sounding explanation for that, as these things also exist in nature.

You are not starting with observation of nature and deriving your ethical position from that. Rather, you are doing the reverse. You are starting with your fixed ethical position and then deriving a scientific-sounding context based on observation of nature to explain and thereby reinforce your belief in your position. “Science” here is just a belief system you have a lot of faith in. And your ability to express your existing beliefs in its terms simply reinforces those beliefs, just as would be the case with any other belief system.

That’s why it’s pseudoscience and not actual science.

[Dan Schiavetta]

No “explanation” is being offered for cooperative behavior. It simply
happens or not, and if it does happen and is beneficial, the behavior is more likely to happen in the future. It becomes part of the ethical system through the learning process.

[Artifex]

Exactly this. Cooperative is not an ethical judgement. It is an observation of a real phenomena. Perhaps the more interesting thing from an actual evolutionary standpoint is that neither cooperative nor competitive predominate and this has bearing on the best strategy.

[Artifex]

Sigh, real science and scientists, don't dictate ethical questions ever. The best that can ever be done is present a great model of how reality actually functions. If you start to become results oriented, the science suffers. One can be an activist or a scientist, but not both. The whole point is to be as objective as possible to produce accurate models.

What is done with those models is an entirely different animal. You can study and determine the best model of how inheritance and natural selection works. That's science. When you decide you need to reorder society to achieve a result you desire, that certainly isn't science. The eugenics movement was entirely a social thing that wrapped itself in the clothing of science to attempt to appear respectable. Good science being fundamentally honest is a branding that social activists love to try to attach to their causes, but inevitably, it becomes simply not science.

[Dr. Ed 2]

Actually Carrie Buck wasn't retarded -- instead she'd been repeatedly raped by a family member who'd dumped her there to cover up his crime -- and memory is that the sterilization would permit him to continue to rape her.

She was no genius, but when she got older it was discovered that she had a nearly average intelligence and today we know what child molestation does to child development.

And like most of the eugenics movement, a man named Hitler reversed much of it.

[Dan Schiavetta]

I once had a client who got institutionalized as a teenager (in the 1920's) for reasons that were not explained in her chart, and was in psychiatric hospitals for 40 years. By the time I was given her case she was living in a group home. Her diagnosis was "moron" (later called "trainable mentally retarded"). She had "institutionalized" behaviors, and "acted" and "thought" like a trainable mentally retarded person. But on an IQ test given when she was a young woman her score was 101.

[John F. Carr]

The decision says she had a child who was also feeble-minded. According to Wikipedia the child was born in 1924, the year her case went to trial. By the time the Supreme Court heard the case the child would have been two or three. I wonder how the diagnosis was made and how it got into the record.

[Mr. Bumble]

Maybe Down syndrome child?

[The Margrave of Azilia]

I believe the case was collusive - the eugenist running the whole thing recruited a "defense" lawyer to make a facial challenge to the law without bothering his pretty head about any facts which might also help his client.

[Michael Ejercito]

So the Constitution did not protect reproductive rights?

[John F. Carr]

Her reproductive rights could not be denied arbitrarily, and they were not. She had a trial. Her attorney admitted that the trial was good enough. Until the 1960s a trial was enough to condemn a person to death. Is sterilization a fate worse than death? Is sterilization of imbeciles the proverbial camel's nose that should be stopped to prevent future abuses? Apparently not then.

[bernard11]

Until the 1960s a trial was enough to condemn a person to death. Is sterilization a fate worse than death?

I don't understand this question. Unlike murderers, Buck was not found guilty of any crime.

[John F. Carr]

Here is the sentence before the famous one:

The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358.

So Jacobson doesn't only justify mandatory COVID-19 vaccines.

[Dan Schiavetta]

Not in the mind of Holmes. Overwhelmingly today’s Americans consider the two situations different.

[Mr. Bumble]

Do they really or do they keep Fallopian tubes intact and deal with the product via abortion?

[defaultdotxbe]

Has anyone of note seriously suggested compulsory abortion?