The Ever-Contemptible Buck v. Bell

Three years ago I posted here about a judgment of the Supreme Court of India enforcing the right of a young woman with mental disabilities to carry her unborn child (a product of rape) to term. In the course of that post I mentioned the 1927 decision of the United States Supreme Court in Buck v. Bell, which, by contrast, upheld the power of the Commonwealth of Virginia to sterilize a young woman alleged to be a "mental defective."

Buck v. Bell and the author of the opinion of the Court, Oliver Wendell Holmes, Jr. have come in for regular criticism since the 1950s, after the revulsion against eugenics occasioned by the Nazi regime.. None of what I've read, however, compares to the coldly precise contempt of Victoria Nourse in Buck v. Bell: A Constitutional Tragedy from a Lost World (abstract here). As Nourse puts it,

Even if grounded in eugenic assumptions widely held at the time, Buck v. Bell was an utterly lawless decision-and I mean that quite literally. Holmes treated Carrie Buck's constitutional claims with contempt. The opinion cites no constitutional text or principle emanating from the text. The only "law" in the opinion must be unearthed from a lost constitutional history embedded in a factual exegesis full of disdain for the Constitution and humanity itself.

Her analysis of the constitutional standard of the day (individual rights could be trumped by the police power reserved to the States) is quite helpful. In brief, the American constitutional concept of rights then (and through the early 1940s) is not what is understood as a right today. Today rights are (generally, anyway) trumps; then, with few exceptions, they were little more than a feather on the scales of justice:

Progressives, at the time, found no problem with this logic, but nor did the Justices who today are considered libertarians. And that is because they not only shared a notion of right as far weaker than we imagine today, one that cannot be justified in my opinion by the constitutional text or the history of the Bill of Rights or even based on the Founders' ideals, but one quite prevalent in the first three decades of the twentieth century.

I blogged about the concept of rights at some extraordinary length in 2009. (Just type "Wolterstorff" into the search box of Pryor Thoughts and see the many hits.) And I delved into the same topic at some length in my article on human rights here. Suffice it to repeat that the concerns I expressed about failing to understand the very concept of a right as a trump against the power of the the state were fully anticipated in Buck v. Bell. And, to the extent that today rights--including the right to life--are simply grist for a balancing mill, we can see and expect to continue to see the same contemptible results.