Posted by David Bernstein: Holmes's Overratendess: http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250793316
There is no doubt that Justice Holmes was a powerful rhetorician: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics"; "It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account"; "Three generations of imbeciles are enough"; and so forth. But along with his penchant for the flip but memorable aphorism, Justice Holmes's opinions reflect what one historian calls his "disdain for facts" and his lack of interest in legal reasoning. Consider Buck v. Bell, the eugenics case. Despite his reputation as a fierce skeptic, Holmes credulously accepted the junk science of early twentieth-century eugenics without question. Moreover, he evinced no concern for the actual or potential abuse of the sterilization power. Holmes failed to meaningfully inquire as to whether the procedural protections granted Carrie Buck amounted to more than a sham, and whether the evidence that she was both feebleminded and descended from other mental incompetents was legitimate (it wasn't). Meanwhile, Holmes articulated an idea severely at odds with the American constitutional and natural rights traditions---that because the state may draft individuals to defend the country during war, it may demand any lesser sacrifice from its citizens, including forgoing their ability to bear children. Finally, he drew an analogy between compulsory vaccination, previously upheld by the Supreme Court, and compulsory sterilization. He wrote, "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." This analogy utterly fails. In the smallpox case, failure to comply with the vaccination law at issue led to a fine, not to mandatory vaccination. And while mandatory vaccination and mandatory sterilization involve invasions of bodily integrity, the results are quite different--no smallpox in the one case and no children in the other. In other words, mandatory vaccination, unlike mandatory sterilization, actually benefited the coerced party. Buck is just one example of what I consider Holmes's failure as a judge, putting aside what I consider the grotesque immorality of many of his beliefs. _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
