Sterilization ruling shows Supreme Court can err

November 08, 1998|By GREGORY KANE

THE CALLER was a testy cuss, huffing, fuming and ranting about the National Rifle Association and gun control.

"If you and those nincompoops at the NRA ever get to know more about the law than the Supreme Court," the caller snarled, "then I'll listen to you."

The implication was that the Supreme Court knows more about the Second Amendment than anybody else. The Supreme Court has never, the caller insisted, interpreted the Second Amendment to mean everyone is entitled to own firearms. The Supreme Court has spoken on this issue, the implication goes, so therefore the Supreme Court is right.

It's time we divest ourselves of some illusions about the Supreme Court. It has been wrong. It has been wrong often.

It was the Supreme Court that gave us those dreadful decisions in the Dred Scott vs. Sanford and Plessy vs. Ferguson cases. And those were the least of the high court's sins.

Supreme Court justices were even less kind to Levi Nelson and Alexander Tillman, two black men lynched in Grant Parish, La., in 1873. Historians say Nelson and Tillman tried to vote in a local election. A lynch mob murdered them. Eighty members of the mob were charged -- under an 1870 law passed in the wake of the 14th Amendment's ratification -- with conspiring to deprive Nelson and Tillman of their civil rights.

The court ruled that the 14th Amendment and the "violation of civil rights" laws applied only if the state of Louisiana had violated the civil rights of Nelson and Tillman. Private citizens doing so were the problem of state, not federal, prosecutors. That the state of Louisiana never even considered prosecuting the lynchers and had, indeed, given tacit approval to their misdeed never occurred to the good justices.

The Supreme Court's decision in this 1875 case -- U.S. vs. Cruikshank -- gave a green light to the anti-black mob violence that Southern states used for years afterward. It had the effect of leaving black Southerners to the tender mercies of the Ku Klux Klan.

One Supreme Court decision was so egregiously awful that it had international impact. This was the decision that Nazi lawyers cited at the Nuremberg trials as justification for Nazi Germany's Rassenhygiene (racial cleansing) program. The decision was the one handed down in the notorious Buck vs. Bell case.

In 1924, Virginia passed a law allowing the forced sterilization of the "feebleminded" and the "socially inadequate." Carrie Buck, the daughter of a woman who had been committed to a colony for epileptics and the "feebleminded," was raped when she was 17. Buck, after her mother's commitment, was raised by J. T. and Alice Dobbs. It was the Dobbses' son, Buck charged, who raped her.

The Dobbses took Buck before Charles Shackleford, the same justice of the peace who had committed Carrie's mother, and asked him to commit Carrie to the same colony. After receiving DTC confirmation from two doctors that Buck was "feebleminded," Shackleford granted the Dobbses' request.

The legal wrangling that followed worked its way up to the Supreme Court, where sat men of such fine reputation as William Howard Taft, Harlan Stone, Louis Brandeis and Oliver Wendell ++ Holmes. It was the oft-quoted Holmes who decided to make a complete ass of himself in the matter of Buck vs. Bell. The high court voted 8-1 -- only Pierce Butler had the decency to dissent -- that Buck could be sterilized against her will.

Holmes, in his opinion for the majority, proclaimed that society had a duty to "prevent those who are manifestly unfit from continuing their kind." The decision, he later wrote, "gave me great pleasure, establishing the constitutionality of a law permitting the sterilization of imbeciles."

That decision was handed down in 1927. Nazi Germany took note. A model of the Virginia law became the Third Reich's Hereditary Health Law six years later. Harry L. Laughlin, who wrote the model act that became Virginia's law, was awarded an honorary degree from Germany's Heidelberg University in 1936.

Whenever Americans rail about Nazi evils, we had best ponder the fate of young Carrie Buck and how our laws, not some evil goose-stepper's, led to the Third Reich's forced sterilization of some 2 million people.

And, lest we forget, it was our own Supreme Court that declared constitutional a law that the Nazis found quite reasonable. So much for the infallibility of the Supreme Court and of its justices having the last word on matters legal.

Pub Date: 11/08/98

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