Note: The Ghost of Holmes: Revisiting Buck v. Bell in the Wake of Dobbs

Note: The Ghost of Holmes: Revisiting Buck v. Bell in the Wake of Dobbs

In preparing for the senior capstone course I am teaching next semester, “Justice on the Big Screen: Separating Fact or Fiction from Hollywood’s Legal Dramas,” I revisited two pivotal forced sterilization cases, Buck v. Bell, 274 U.S. 200 (1927), and Skinner v. Oklahoma, 316 U.S. 535 (1942). These cases, when examined alongside Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), raise questions about the trajectory of substantive due process and its implications for fundamental rights.

The Dobbs decision, which overturned Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), narrowed the scope of substantive due process and constitutional rights not explicitly enumerated in the Constitution. This shift invites a reevaluation of cases like Buck v. Bell, which upheld a Virginia law permitting involuntary sterilization on eugenics grounds. Justice Oliver Wendell Holmes Jr.'s infamous declaration, “three generations of imbeciles are enough,” exemplifies a dark chapter in constitutional history.

While Skinner v. Oklahoma introduced equal protection arguments and emphasized procreation as a fundamental right, it did not directly overrule Buck. The interplay between these cases and the modern Dobbs framework reveals significant uncertainties about the future of unenumerated rights. It raises the questions whether Dobbs undermines the fragile foundations laid in Skinner and risks reopening debates long thought settled.

The Eugenics Era and Buck v. Bell

In 1927, the Supreme Court upheld Virginia’s sterilization law in Buck v. Bell, embracing the eugenics movement’s rationale. Justice Holmes’ majority opinion, though infamous for its callousness, aligned with contemporary views on public welfare and societal improvement. The decision’s lack of regard for individual autonomy or fundamental rights has made it a perennial target of criticism, yet it remains technically valid law, never explicitly overruled.

?Skinner v. Oklahoma

Fifteen years after Buck, the Court’s decision in Skinner v. Oklahoma marked an important shift. The Court struck down Oklahoma’s Habitual Criminal Sterilization Act, reasoning that procreation is a fundamental right protected by the Equal Protection Clause of the Fourteenth Amendment. Justice Douglas’ opinion emphasized that laws targeting reproductive rights demand heightened scrutiny due to their profound implications for personal liberty.

Skinner, however, did not directly challenge the eugenics-driven logic of Buck. Instead, it focused on the discriminatory nature of the Oklahoma law, which applied sterilization selectively to certain categories of crimes. As a result, while Skinner introduced skepticism toward laws infringing on reproductive rights, it left Buck’s foundational reasoning untouched.

Substantive Due Process and the Rise of Constitutional Privacy Rights

The legal underpinnings of Buck were further weakened by landmark cases recognizing privacy and bodily autonomy. Griswold v. Connecticut, 381 U.S. 479 (1965), established a constitutional right to privacy in matters of reproduction and family planning. Roe v. Wade and Planned Parenthood v. Casey extended this right to include abortion, framing reproductive autonomy as a liberty interest protected by substantive due process.

These cases, alongside Lawrence v. Texas, 539 U.S. 558 (2003), affirmed the principle that intimate personal decisions merit heightened scrutiny. Collectively, they represented a legal repudiation of Buck’s dehumanizing rationale. Yet Dobbs’ rejection of substantive due process as a basis for constitutional rights raises concerns about the durability of these precedents.

Dobbs and Its Implications for Buck

The Dobbs decision’s emphasis on historical traditions at the time of the Fourteenth Amendment’s ratification in 1868 represents a significant departure from the jurisprudence that underpinned cases like Roe and Lawrence. By rejecting the broader application of substantive due process, Dobbs narrows the framework for protecting unenumerated rights. This raises unsettling questions: If rights like abortion are not deeply rooted in history, what becomes of other rights derived from the same principles?

Under Dobbs’ historical lens, the reasoning in Buck v. Bell could appear more defensible, as forced sterilization was less controversial in the early 20th century. This approach risks legitimizing outdated precedents at odds with modern norms.

?Equal Protection as a Remaining Safeguard

Skinner’s reliance on the Equal Protection Clause offers a potential counterbalance to Dobbs’ retreat from substantive due process. However, Dobbs’ emphasis on state legislative authority complicates this protection. By deferring to states on matters not explicitly addressed in the Constitution, the Court could embolden legislatures to enact restrictive laws infringing on individual liberties.

While societal opposition to eugenics remains strong, Dobbs illustrates the fragility of legal protections grounded in unenumerated rights. The equal protection framework may face renewed challenges in an era where historical traditions outweigh modern principles of justice.

Conclusion

Despite the tectonic legal shifts introduced by Dobbs, societal rejection of eugenics and forced sterilization remains steadfast. However, Dobbs’ narrowing of substantive due process protections weakens the constitutional arguments against Buck v. Bell’s logic, creating a precarious legal landscape for unenumerated rights. The failure to recognize bodily autonomy as a broad constitutional principle leaves troubling gaps in contemporary jurisprudence.

Perhaps it is time to acknowledge that a century of eugenics-based precedent is enough and, despite Dobbs, align with the principles of dignity, equality, and autonomy that one hopes will continue to define modern constitutional law.

?