"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, May 02, 2007

An Infamous Anniversary

This is the 80th anniversary of Buck v. Bell, a dark moment in our history, and a lesson in why we should not let judges substitute personal philosophy for the text and original understanding of constitutional texts.

In 1927, the state of Virginia had a statute on its books allowing for the sterilization of "mental defectives." Under this law, the superintendent of the State Colony for Epileptics and Feeble Minded ordered that hundreds of men and women who fell into these categories be sterilized. The law was a clear response to the popular eugenics movement of the time.

In Buck v. Bell , Carrie Buck, the plaintiff, had been confined to the Colony for feeble mindedness in Amherst County. Evidence showed that she, her mother, and her baby (born out of wedlock) were all "feeble minded." Buck was scheduled for a sterilization operation, but she challenged the Virginia law on the grounds that it violated her Fourteenth Amendment rights to due process and equal protection under the law.
Whaddya think? Did Carrie Buck have a "due process" right not to be sterilized by the Commonwealth of Virginia? Did the liberty interests of the 14th Amendment forbid her forcible sterilization? Let's see what that great Tower of American Jurisprudence, Oliver Wendell Holmes, Jr. had to say.

Justice Holmes:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. 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.

Call it the "survival of the fittest" school of Constitutional jurisprudence. With this rudderless mode of interpretation, the results change when the Judges change: a scant 15 years later, in the case of Skinner v. Oklahoma, the Court struck down Oklahoma's forcible sterilization of habitual criminals. Skinner himself, unlike Carrie Buck, was an armed robber and a chicken thief. The Court ruled that procreation was a one of the "fundamental rights of man," and that forcible sterilization violated Skinner's Fourteenth Amendment right to equal protection.

Fast forwarding to modern issues, we see the spirit of Holmes at work in Griswold v. Connecticut, where the Supreme Court assessed the constitutionality of Connecticut statutes prohibiting the use or sale of contraceptives to married couples. The Court held (7-2) the statutes to be unconstitutional, with Justice Douglas' opinion of the Court characterizing the statutes as "repulsive to the notions of privacy surrounding the marriage relationship."

The Justices did not agree fully on how to find a way to declare the law unconstitutional. There is no express provision of the constitution which says the state may not outlaw contraceptives. Justice Douglas (joined by Chief Justice Warren and Justices Clark, Goldberg and Brennan) reasoned that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." He found "zones of privacy" to be created by specified provisions of the First, Third, Fourth, Fifth and Ninth Amendments that bound Connecticut through the Due Process Clause of the Fourteenth Amendment.

Justice Goldberg (joined by Chief Justice Warren and Justice Brennan) reasoned that the Ninth Amendment "lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments", and that to "hold that a right so basic and fundamental and so deep-rooted in our society as the right to privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever." He concluded that "the right of privacy is a fundamental personal right, emanating 'from the totality of the constitutional scheme under which we live'."

Justice Harlan, agreeing "with the judgment of reversal" but "unable to join the Court's opinion", argued that "the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the concept of ordered liberty'."

Justice White, "concurring in the judgment," felt "this Connecticut law as applied to married couples deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment." "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling. I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law."

Justices Black and Stewart, dissenting, declared that the "Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities."

"I get nowhere in this case by talk about a constitutional 'right of privacy' as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."

From Holmes' personal philopsophy of eugenics to Douglas' mystical penumbras and emanations which create a right to access to contraceptives (later extended to a right to abortion), one characteristic unites these entirely divergent line of cases: Justices substituting their private notions of what ought to be done for what the Constitution itself permits or does not permit by its express terms. The further from the text and original understanding of the Constitution the Justices go, the less will their decisions be predictable because the less will they be anchored to the written text and the meaning of the text as it was understood by the authors.

From Dred Scott to Buck v. Bell, to Wickard v. Filburn, to Griswold, to Roe v. Wade: When Justices impose personal ideology instead of doing the far less sexy work of construing statutes for compatibility with the text and original understanding of the Constitution, we lose a portion of our freedom to direct our own destiny. And the small folks like Farmer Filburn and Carrie Buck lose much of their liberty.

“They done me wrong.They done us all wrong.”
Carrie Buck shortly before her death in 1983.

Thus endeth the Lesson.

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