Today in Supreme Court History: May 2, 1927

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

Comments

[Dan Schiavetta]

Won't post my summaries. I'll try them one by one and see which is the "offending" one.

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

[ReaderY]

Eugenics was the brainchild of the reasonable, scientific people. As the good Rev. keeps telling us, only superstitious, backwards people object to reason and science.

If you fully support Buck v. Bell, consider yourself reasoned and enlightened! If you think it might have been a wee bit of a mistake, welcome to the backwards, superstitious people clinging to the dark past which reason, enlightenment, and scientists like the good Eugenics folks will inevitably wash away.

As the good Rev. keeps telling us, carry on clingers!

[Dan Schiavetta]

The problem with the eugenics people was not that they believed in natural selection, but that their belief was not extensive enough. They should have believed in it more.

Natural selection also operates on behavior, in particular the behavior of societies. Some behaviors are not successful (and get extinguished) while others work (and are reinforced). Prehistoric tribes which developed a code of ethics stayed together and advanced, while those that didn’t, fell apart (or maybe never got together in the first place). And societies which allow all possible autonomy to their weak and disabled members (instead of sterilizing them) endure and progress. It is a successful survival trait, just as much as having black wings saved Darwin's moths when Manchester industrialized and the smoky air darkened the bark on the trees.

[ReaderY]

If that’s so, then when scientist propose bulldozing over traditional moral concepts because of recently developed theories, it’s entirely possible their theories (or their application of them) could turn out to be wrong.

I think once that’s conceded, it means it’s not completely irrational for people not to be so quick to immediately jumping to implement what they say, especially at others’ expense.

The scientists of the day understood the science of the day. Nobody understands future science. This means the science of any age is what its scientists say it is. There is no other.

Because we can’t predict how science will change in the future, we can’t assign future scientific ideas any relevance to decisions made in the past or to be made in the present. To say the scientists of the day “didn’t really understand science” is either a tautological or a meaningless statement. Because we too are unable to predict future science, we no more “really understand” science than they did. Or any less.

[Dan Schiavetta]

Traditional moral concepts are the result of evolution. As such they also evolve. Things that were thought to be wrong (e.g., gay sex) are increasingly seen as not, and vice versa as to things that used to be considered o.k. (e.g., beating your wife). This is because the old rules were increasingly unworkable, i.e., they were unsuccessful survival traits. Imprisoning gay people, or firing them from their jobs, is counterproductive — as Bill Clinton put it, “We need every capable person’s contribution”. Also counterproductive is having half the human race in a state of subjection where not only are they injured but their full talents are unused.

As far as tinkering with traditional concepts for “scientific” reasons, whether it’s called science or not it’s something we do all the time, such as the examples above. We made gay sex legal. And criminalized wife beating.

[Intelligent Mr Toad]

I spent my professional life doing scientific research. I'm quite sure I have heard, or met, or interacted in some way, with more than a thousand scientists. But I have never heard one "... propose bulldozing over traditional moral concepts, ..." neither "... because of recently developed theories, ..." nor for any other reason.

[Intelligent Mr Toad]

There’s nothing wrong with eugenics, provided it is sound eugenics. That means the eugenic program must be ethically sound: practiced willingly, by free participants without any coercion, and, it must be scientifically sound: the trait which the participants are seeking to enhance (or reduce) must actually be genetically heritable, not just a product of a family having a tradition of good child-rearing. So, no trying to selectively breed a strain of highly successful chefs by getting people who are fussy about food to breed together – that would be scientifically unsound, so it wouldn't work.

The eugenicists of the early 20th Century failed the “voluntary participation only” test, and largely failed the “really heritable (genetically) traits only” test as well.

Selectively aborting fetuses which have trisomy-23 (which causes Down Syndrome) is NOT actually eugenic, because trisomy-23 occurs spontaneously and is mostly not inherited from the parents. So while aborting them does reduce the prevalence of Down syndrome in the society which aborts them, it doesn’t much reduce it in future generations. If you were to kill or banish all the Down syndrome patients in USA to an island somewhere, 100 years from now there would be just as many Down syndrome patients walking around as there would be if you hadn’t bothered.

[Syd Henderson]

On the other hand, selectively aborting fetuses with Huntington's syndrome would be pretty effective.

[ReaderY]

No, the argument against goes deeper than that. Pedigreed dogs tend to have health issues. Breeding them for excellence in certain specific desired traits tends to make them less healthy overall.

It would be the same if we had pedigreed humans. Biology is complex. As the dog-breeding example illustrates, selecting for desired genetic traits has lots of unknown side effects.

It goes deeper still. Just as normal-appearing people can be carriers for genetic diseases, people with undesired traits can be carriers for characteristics which are overall benefical to the population. Peopel who do very poorly in the current environment, like good fat storers who become diabetics in times of constant plenty, may be carrying traits the population needs to survive more adverse environments, such as a time of extended famine. Will hunans never have to endure extended famines again? I wouldn’t bet the farm on it. Maybe best to keep the diabetics around and accept their suffering.

In other words, some people may have to accept the short end of the genetic lottery draw for the overall benefit of the population. This is a radically anti-libertarian concept. Libertarianism tends to see individuals as independent and calculate costs and benefits by discrete addition rather than by looking at interaction effects. Eliminating a supposedly negative trait from the population may deprive it of the positive traits, perhaps in some other environment where those traits get triggered or manifest, that allowing carriers to suffer enabled the population to have. Evolution just isn’t fair.

In any event there are always costs and risks, real and serious one but difficult to quantify ones, to systematically interfering.

[Dan Schiavetta]

What you're really saying is not that eugenics is wrong but that doing it successfully is really difficult and maybe impossible given the present state of knowledge.

[Intelligent Mr Toad]

That's a pretty good thing to say! I mean, likely true.

[Krychek_2]

Yeah, every time Buck v Bell comes up, someone makes this argument. And here's what's wrong with it.

Scientists, like parents, go with the best information they have but they sometimes make mistakes. That parents sometimes make mistakes does not mean that they are not to be trusted and their children should ignore them, because parents are still going to be right more often than not. They may not be 100% but that's the way to bet.

Nobody today would want to travel in Henry Ford's first automobile. We know a lot more about car making than he did. Doesn't mean he was an idiot.

So yes, the eugenicists were dead wrong, and yes, they dressed themselves in the mantle of science. Science isn't 100% right about everything, but it's still the way to bet. And, it has a mechanism in place to find and correct mistakes even if it sometimes takes a while.

[Dan Schiavetta]

+

[Noscitur a sociis]

It does seem like a coffeepocalypse kind of argument.

[Intelligent Mr Toad]

An early supporter of Darwin? Did he (the father) fund Darwin's voyages, or what?

[Dan Schiavetta]

Oliver Wendell Holmes Sr. (a more interesting man than his son, if you ask me) was on Darwin’s side in the fierce evolution debates of the 1860’s and 1870’s.

[Intelligent Mr Toad]

Both sides were wrong. "Darwin's side" was closer to correct (ie less wrong) than the other side was.

[SMP0328]

This evil decision was never explicitly overruled, but an excellent argument can be made that it was implicitly overruled by Skinner v. State of Oklahoma, ex rel. Williamson, 316 U.S. 535 (1942). If the State can't sterilize a criminal, how can it do so to someone it deems to be from "three generations of imbeciles"?

[Dan Schiavetta]

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 (chained wrist to ankle) plus of hard labor plus permanent disqualification from voting and from public office is “cruel and unusual punishment”

[The Margrave of Azilia]

Which was cruel and unusual - the shackling and forced labor, or not being able to be elected to office? /sarc

[Dan Schiavetta]

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."

[Dilan Esper]

The grass is always greener on the other side.

[Dan Schiavetta]

Of all the places Twain lived, he probably liked Hartford the best.

[Dan Schiavetta]

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 (for suspiciously low price, large quantity, and no bill of sale) was admissible in trial on possession of stolen videotapes to show knowledge that they were stolen

[Dan Schiavetta]

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

[Dan Schiavetta]

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

[Dan Schiavetta]

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.

[Dan Schiavetta]

Shurtleff v. City of Boston, Mass., 596 U.S. 243 (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)

[Dan Schiavetta]

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

[Dan Schiavetta]

The offending case seems to be 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. (Won't post the rest of the comment! -- which had no links, and no obscenity.)

[not guilty]

Buck v. Bell, 274 U.S. 200 (1927), was the Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), of the twentieth century. Each decision upheld the right of busybody state officials to determine whether a woman should or shouldn't reproduce.

[Intelligent Mr Toad]

Right you are.

[theobromophile]

How so? The issue in Dobbs is that by the time a woman is pregnant, she has already reproduced. The only question is whether or not she can kill that child and at what stage of life. (Is the state being a busybody by refusing to allow infanticide, despite its very long historical tradition?) Mississippi asked for 15 weeks as a cutoff; that wasn’t good enough for the pro-abortion side, so they brought the case. (Crazy to think that Roe would still be good law had the left simply… not challenged the Mississippi law and decided that 15 weeks was good enough.)

[CJColucci]

The issue in Dobbs is that by the time a woman is pregnant, she has already reproduced.

Maybe you should learn a bit more about how pregnancy works. There is a reason people say that God is the most prolific abortionist of all.

[Rev. Arthur L. Kirkland]

Do these anti-abortion absolutists believe women should be prosecuted if a strenuous tennis match, an avoidable illness, an intense drinking session, or the like precipitates an early miscarriage?

Of course, these tend to be people who believe evolution is a satanic plot, science is something to be suppressed for incongruence with dogma, and fairy tales are true.

[theobromophile]

Are you asking me for my own beliefs?

Like most everything else in criminal law, prosecute deliberate, affirmative actions, and prosecute the abortionists rather than the mothers. As a matter of prudence, when a law results in a large societal change, that law might be a bit more circumspect than "ideal," and often laws - by the nature of applying to millions of people in their own specific situations - are going to have loopholes.

Prosecute deliberate actions to end the child's life: RU-486, suction abortion, D&E, all that. We can take that evidence to a courtroom: the patient saw the doctor, the doctor perceived this medication, she picked it up at CVS, she took it, the child died. It's not hard to connect the behaviour that we want to end with the result. I wouldn't criminalise playing tennis because it's not trying to kill a kid; and so much of the time, it's going to be coincidental and not causal.

[Rev. Arthur L. Kirkland]

.

Like most everything else in criminal law . . . prosecute the abortionists rather than the mothers

? ? ?

Like when the hit man's customer avoids prosecution?

Because criminal negligence (especially involving children) is never prosecuted?

[theobromophile]

Badly worded: there should have been a semicolon or a period and a new sentence.

[theobromophile]

I'm fairly aware of how pregnancy works, thanks, having been pregnant.

100% of people who are conceived will die. It doesn't make it okay to kill someone just because other people in their situation are at a high risk of death. If that were the case, we wouldn't prosecute people who go around nursing homes snuffing out the lives of the elderly.

It's almost like your take isn't based on science or logic, just emotion.

[Rev. Arthur L. Kirkland]

The superstitious, bigoted side of the debate questioning the other side's interest in science and logic.

[theobromophile]

The bigotry is declaring an entire class of humans to be so unworthy of life that there is a constitutional right to rip them to shreds.

[Intelligent Mr Toad]

How about if we do abortions without ripping anyone to shreds? Would that be OK with you?

(NEWSFLASH: we already do more than 50% of abortions in USA without any ripping or even any direct physical or chemical intervention whatsoever into the interior of the fetus.)

[theobromophile]

And you think that makes it okay to kill an entire class of humans?

[CJColucci]

How many times has your body contained a fertilized egg that failed to implant or otherwise spontaneously aborted? Do you consider those examples of having "reproduced?"

[not guilty]

Most fertilized ova naturally fail to implant and are washed away in the menstrual flow. Should "pro-life" women give their feminine hygiene products Christian burials on the chance that one may contain a microscopic "human being"?

[CJColucci]

Pro-life women can do what they like about burials. And they can curse God as the most prolific abortionist of all.

[theobromophile]

I bet you think your last sentence is clever.

[theobromophile]

You rather deliberately missed my point. Try again, this time explaining why it's okay to kill people.

We don't allow murder of people in cancer wards or nursing homes, despite their very high risk of death and limited life expectancy. We don't kill the survivors - the idea of miscarriages is so beside the point, because the only time abortion matters is if she hasn't miscarried.

Every single person will eventually die, and yet, murder has been condemned by every functional society throughout history.

You're just making excuses for treating one class of humans as "other" and disposable.

[Intelligent Mr Toad]

No, that is not the issue in Dobbs. Dobbs grants authority to answer that question to the states and the Federal governments to resolve by means of legislation.

The question in Dobbs is whether any government – state or Federal – should be allowed to force one person (the patient) to shelter and sustain the life of another person (a fetus) by directly sharing the inside of her body (or granting direct access to the inside of her body) for longer than she chooses to allow.

(The right answer, in spite of Dobbs, which missed it, is “NO!!!!”.)

[theobromophile]

Why is that answer "no"? Why should we single out a specific class of humans for extermination? Every time that's been tried in history, it's ended badly.

[SMP0328]

Claiming Dobbs is the equivalent of Buck is hyperbole, just like the claim that Roe was the equivalent of Dred Scott. I’ve heard/read both claims.

[Dan Schiavetta]

I agree.

[Intelligent Mr Toad]

Hyperbole? Are you sure it's not parabole? Or ellipsus?

[Dan Schiavetta]

You're quite an "eccentric" fellow.