List of United States Supreme Court copyright case law

Transcription

I'm going to thank my hosts. This has been a wonderful visit to Michigan. We had a wonderful afternoon with medical students today who were just terrific and the questions that they ask me and the interest that they showed. So I appreciate very much for coming out tonight on what is not terribly cold night for Michigan, but for the rest of the country still kind of chilly. I'm going to try to take you through in the next forty or fifty minutes an overview of this thing with the name Eugenics and how it played out in the United States and how they are connections between the way played out in the United States and in the way it reached its most infamous in Nazi Germany. I hope those connections will be obvious by the time I'm finished, but I want to remind you at the beginning that this is an extraordinarily complex story that no one can do justice to short time or even one book. It's something we're still learning a lot about and so you have to keep your mind open to different ways of thinking about our history. When I say "our" history I am talking about Michigan as much as anywhere else, but also world history. So with that, let me get into the actual exhibit. The first thing I need to do, this is really embarrassing moment. I didn't bring my slide. Now this is where if you have teenage children, they would be going "Gosh, Dad." The one thing that I want to talk about in terms of the exhibit itself is that I certainly don't take any credit for it, but I was really happy to be around when it was being conceiving and people were talking about it and was able to give it a little bit of background information for the researchers who put it together and actually loaned this book, which I have a good fortune to have bought when it was quite inexpensive. It has a fantastic cover and it became part of the exhibit and traveled all over the world. When the exhibit was first released and opened in Washington, D.C., it got a lot of attention and I was a very happy that there was a whole panel of it. It's here in a smaller version, but there was a whole panel in Washington that included this picture of Carrie Buck the and her mother, Emma in the nineteen twenties when they were on the verge of facing a trial that would eventually sterilize Carrie. So thousands of people have learned about this case, which I spent a lot of my life studying, from this traveling exhibit in this country as well as in Europe and so I think that's a great plus. There's still a lot to learn about eugenics and so before I get to the bookcase I want to give you some insights about parts of the movement that you make not have heard of. In the beginning it's really just said "What is this thing called eugenics?" There have been many books written about it. You've got several people in the audience like Professor Stern, Professor Marty Karnik, who's also here, who've written extraordinary books about eugenics and how it found an expression here in America, but the starting point for just about everybody is to talk about marriage between ideas in biology, which really began with the famous monk, Gregor Mendel shown here from you know maybe the eighteen sixties who now I have found students in middle school even are studying ideas of heredity that Mendel gave us in the middle of the nineteenth-century and which remained hidden really for most of the world until the early twentieth century. Here is his article "Experiments in Plant Hybridization" in which he describes his own experiments and how he'd bred in his backyard there at the monastery, pea plants and how he could try certain traits that would appear and disappear in different generations and and by doing the studies over several generations dozens and dozens he was able to say that there were certain rules certain laws of heredity that he came up with. The descriptions of what we know as dominance and recessive traits and how those things could pop up in a regular fashion from generation to generation. Now Mendel's rules, Mendel'slaws, become part of the story somewhat later on. At least by around nineteen hundred at which time people start looking more seriously at the work of Francis Galton. A British gentleman who had the good fortune of traveling a lot. Kind of like his cousin Charles Darwin, he was able to go to Africa and places and look at the natural history of plants and animals. We celebrated Galton's centennial of his death just last year so it hasn't been that long ago that he was writing and the book that he is most famous for, I think now, is a book that was published in 1883 called "Inquiries into Human Faculty and Its Development" and the reason we pay attention to this book is because somewhere in the very first chapter he talks about a new idea. The idea itself was not really new. It had been around for a long time. We always talk about Plato thinking this way as well, but Galton gave voice to new word and the new word was eugenics and that word he defined is "All the influences that tend in however remote a degree to give to the more suitable race or strains of blood a better chance of prevailing speedily over the less suitable than they otherwise would have had. Well that's a mouthful. The word itself, eugenics, is from the break. It simply means to be well-borned or good birth. It encompassed a large number of ideas and we need to remember that book and this definition came out for most English speakers before Mendel's laws and Mendel's article had even been translated; nevertheless, this is one part of the story of eugenics. Golton theorizing about it as a social mechanism for deciding which people would have children and which might not. Even at a time when the science that might of address those things were non-existent. The major demonstrations not only men overall, but also vicemen comes up with a whole book on what he called the germplasm but we might call DNA. That hadn't come out yet so these ideas are floating around about the same time but they're not necessarily running into each other until after the twentieth century. Now we think of eugenics today, in general, is almost a curse. I saw a survey just this week that was done a bunch of Americans in a bunch of Germans and the one thing that these two hundred people could agree on was when somebody said eugenics that was a bad thing. They didn't have a tremendous amount of understanding of the history of the concepts, but everybody connected it to the Nazis. So what I'm going to try to do this evening is to clarify what the connections are--what some of them are, but also to clarify that it doesn't tell the whole story. The story is extraordinarily rich and complicated and eugenic certainly is a dirty word today, but that wasn't always the case. To give you a few examples: there was a time, this is nineteen thirteen when the Surgeon General of the Public Health Service was asked unofficially to examine two people who were getting going to get married and he did that and he said they would fit and he issued what the New York Times called the first eugenic certificate. In his position as the head of the Public Health Service there were contests for who could write the best sermon on eugenics and there were many people who did it without a contest So eugenic marriage, the mating of healthy productive people to each other, and the avoidance of of unions that would maybe lead to children who were sickly or not well. That was something that was talked about in the pulpits. There was even satire on the topic--lots of it. Lots of cartoons. This is a copy of a piece of sheet music that was written by Scott Fitzgerald when he was an undergraduate at Princeton and there's a book called he bread of all this of the show that he put together called Fifi Fefe and in the middle of it here's a story about love or eugenics. So this was very much a part of popular culture. You can read about it in newspapers and magazines. You could argue about it with your friends and you can see that some people to get so seriously that they got their children involved in all kinds of contests. Here are two kids in Los Angeles nineteen fifteen who are both perfect scores in the better baby contest and their mothers both agree that when they grow up they're going to get them back together because, of course, they would make a great couple. "Parents plan future union and eugenics name," it says. When the image of health was linked with eugenic ideal this highlighted the kind of promise to future generations and at a time when most Americans lived on the farm or have been born on the farm this idea made sense. Everybody knew how the birds and the bees did it and certainly all the cows and the goats did it the same way. There was a pretty clear understanding of how generation worked and how reproduction worked in animals and so why not extend the way that animals were managed via animal husbandry, plants as well, to human beings and so you see a headline here about a social register of fitter families and better babies now science can apply to human stock the same principles which have develop champion cow and horses, etcetera. When families who pursued this ideal presented themselves they were celebrated by their communities and nobody thought eugenics was a curse then. The fitter family contests that were sponsored by the American Eugenic Society happened all over the country, but this happens to be the picture of the contest that happened at the Michigan State fair in nineteen twenty five. At that fair some of the judges, I've marked just one of them, there are some other people here who are quite interesting, but Leon Whitney was the Executive Secretary of the American Eugenic Society at the time and he's the same fellow that a few years later in nineteen thirty four publishes this book which is in the exhibit now. The Case For Sterilization. There are many close connections between and ideas of animal husbandry, ideas of human improvement, of healthiness prosperity of progress in scientific advance that are tied into the way people thought about eugenics. Now if you find that unconvincing, let me see if I could go a little bit further. What would convince you that America had bought the idea that progress in the name of science in eugenics is a good idea? well, I think I've got the thing that might get you there. Madison avenue picked it up. Madison Avenue use the word eugenics to sell products. "Can eugenics bring us better foods?" This is a kind of funny because it's going backwards, at least looking at historically, and they're saying well you know the thing about eugenics and better babies. By the way, we can use it to make better corn too. By choosing the breeds of corn that are put together and so this becomes part of advertising. We're in Michigan and you all know an awful lot about motor cars historically. Let me show you just the last one. The Chalmer Motorcar Company advertises their machines using eugenics. This ad ran between nineteen fifteen and nineteen sixteen in lots of different publications. What it says in the small print is "This car is a greater and better car than its forefather. Into it has been bred and built a summary of motor eugenics." Well, I can't do any better than that. My point is simple. The allure of health and productivity efficiency, and the future of happy babies was a large part of the reason that people were attracted to this idea eugenics. My focal point today though is not the hopeful or even the sometimes frivolous face that eugenics may have taken, but actually the the much darker side. The darker side which expressed itself in laws such as the "Racial Integrity" Laws that were in place in America for generations. Actually for hundreds of years, but got a new edge through the nineteen teens and twenties when states begin to rewrite them and focus on the idea that the mating of people of different races would lead to mongrelized groups Who would have all kinds of physical problems and who have social problems as well. They would pass these "Racial Integrity" Laws so-called to prohibit those marriages and those laws were in place in the United states all the way up until nineteen sixty seven when the United states Supreme Court struck them down in a case called Loving versus Virginia. Another part of the eugenic story which touches probably even more people is how eugenics played into immigration restriction law. Here we have a picture that I think one of these is also on the exhibit, showing officers from the Public Health Service who are testing men, women, and children at Ellis Island as they got off of ships from overseas, to see whether they had the right stuff. They were given IQ test, some of the very first IQ tests were field tested there. They were tested for physical conditions. They were assessed to see if maybe they carried that strange and problematic germ of feeble mindedness, which would make them likely to not have a job. Likely as the law said to become a public charge and those people were rejected. The law that was put in place first in nineteen sixteen and then later strengthen in the nineteen twenty four, was the Immigration Restriction Act. It was a law that was strongly supported by people in the genetics movement as well as others. So that's a second piece of law that was in place for a long time that one all the way up into the nineteen sixties as well. The third batch of laws, the one which I'll spend most of my time talking about tonight, was focused on laws that would allow for the mandatory sexual sterilization of people primarily in state institutions. Institutions like asylums, hospitals, homes for people with a variety of disabilities, and certainly beginning also prisons and other places were criminals were kept. This slide shows the page from the official Supreme Court report that was issued in the case of Buck v. Bell Finally decided in May of nineteen twenty seven this was a formal challenge. A formal legal challenge brought to a law that was written in Virginia, passed in nineteen twenty-four and was described in his preamble as an act that was meant "to prevent the procreation of feebleminded, insane, epileptic, inebriate, criminalistics, and other degenerate persons with inferior hereditary potentialities. peremptory tension out These people were called in the law the socially inadequate. The man who drafted a good portion of that law, or at least a model sterilization law from which much of the language was taken for the Virginia Statute, was named Harry Laughlin and he was the Superintendent of the Eugenics Record Office at Cold Spring Harbor, New York. It became a major part of his career to study sterilization and to write about it. He wrote a major book about it that was published in nineteen twenty two but that book included a copy of the model law that he had been responsible for drafting in nineteen fourteen. In it he initially described a socially inadequate person. He said that was someone who would failed in comparison to normal persons to maintain himself as a useful member of the organized life of the state and then he talked about the socially inadequate classes. They were the feebleminded, the insane, the criminalistics, the epileptic, the inebriated, the diseased, the blind, the deaf, the deformed, the dependent, including orphans ne'er-do-wells, tramps the homeless, and paupers. He included just about everyone who might be considered different, who might be considered non-productive, and who might be considered expendable, at least, by his way of thinking Laughlin figures in a large way in this case of Buck v. Bell because he ends up giving testimony in the form of a written deposition. He didn't actually go to trial, but he said his comments in writing in a sworn deposition and in it, he describes the family, Carrie Bucks family, as people who generally belonged to the shiftless, ignorant, and worthless class of antisocial whites of the south. Harsh words from Harry Laughlin, but not the only harsh words he uses. This is that family. This is Carrie Buck on the left. A seventeen-year-old girl from Charlottesville, Virginia and her mother, Emma Buck at this time in her forties. Carrie-this picture is actually taken on a bench at the institution called the Virginia Colony for the Epileptic and Feebleminded. It was founded in nineteen ten and only this year it was about to close, I am told. They were pictured sitting there the day before the trial in November of nineteen twenty-four, which would lend credence to the law, but would also eventually seal Carrie Bucks fate in history. She had been committed to that institution in nineteen twenty-four. She met her mother there whom she hadn't seen for at least a dozen years, Emma, the mother, had been accused of being a moral degenerate. She was a suspected of being a prostitute. She was declared to be feebleminded and unable to take care of herself and Carrie was also labeled as feebleminded. The reason was that only three months before she got there, she had a baby and this is the baby. The problem was Carrie wasn't married and so she, like her mother, was called a moral degenerate-someone who was supposedly hereditarily inflicted with the likelihood of being promiscuous. The baby, Vivian. is shown here. She was examined by doctors and other experts and they testified at the trial that she was not quite normal. Another person said she's just not quite right. I'm not sure what it is, but there's something not normal about her. So this made the Buck family, Carrie, Emma, and Vivian, the three generations, really the perfect example of what the Virginia's nineteen twenty-four law, just written, meant to address-problem families, families that were suffering from mental and moral defects, poverty that spanned generations, criminality perhaps sexual excess, and probably most importantly a tendency to consume more than a small share of tax support services. These were the focal points for eugenics law. It was meant overtime to eliminate the conditions like crime and disease and poverty as well as eliminating from future generations the people who carried those conditions, or so it was thought in their germplasm but we would call their DNA. So Carries is chosen as the person who will test the new law. She is opposed by this man whose name is John Bell, Doctor Bell. Eventually, more about that later, but eventually he was the person in charge of the Virginia Colony where Carrie was an inmate, and ultimately he's the person who did the sterilization operation on her. Hence we have the case named Buck, Carrie Buck v.Bell, John Bell. Now when that trial that happened the day after Carrie and her mother were sitting on the bench, the park bench there. When the trial was over the court records showed the testimony of some ten people and they all agreed that Carrie Buck was socially inadequate. They all agreed that the phrase that have been used was accurate and that she was the mother of a similarly defective daughter and that conditions such as those that she had, and that her mother had. Conditions like feeblemindedness were hereditary. They would always reoccur so long as such people were allowed to have children. So that was the evidence presented in the case. I'm going to come back to this slide. There was an attempt to prove the theory that all of those conditions like poverty and disease and improper sexuality, would be wiped out by the state if mandated surgery was applied to young people like Carrie Buck. The family was represented by the evidence captured in this pedigree suggesting that hereditary moral degeneracy and illicit sex were, as well as mental defects were conditions that reverberated through three generations of her family. Now let's pull back a little bit for a moment and asked the bigger question: how in the world that this happened and how did this happen in the United States? It happens at least when it happens because the ideas of eugenics have been widely publicized boasts the positive ideas that for the family contest, the better babies you know better living through public-health. Those things have been trumpeted for many years by nineteen twenty-four and organizations like the Eugenics Record Office and the Associated Eugenics Research Association, the American Eugenics Association, who presented things like this logo, which in the nineteen twenties was used to describe eugenics men. the self-direction of human evolution, which took all of the branches of knowledge everything there from statistics to genealogy to medicine to genetics and they drew like a tree draws from its roots to make this science of human engineering possible. This is something that takes hold in the first couple decades of the twentieth century and becomes widely known and becomes at least at the beginning subscribe to by some very important people. This is a shot of the letter head of the Eugenics Record Office's First Scientific board of Directors and includes people like Alexander Graham Bell, the inventor of the telephone. William Welch, one of the fathers of medical education in this country. His colleague at Hopkins Lewellys Barker. Irving Fisher, first PHD from Yale in political science. Famous author in economics and writes in the Wall Street Journal. Thomas Hunt Morgan, the scientist who teaches us all about the fruit fly, Drosophila, and eventually wins the Nobel Prize in nineteen thirty-three. E.E Southard who is psychiatrist at Harvard and they're joined by the staff people there, Charles Davenport, biologist himself trained at Harvard worked at University Chicago and his day-to-day Chief Operating Officer, Larry Laughlin, the Superintendent of the Eugenics Record Offices who comes from Missouri to New York to run this hub of eugenics research in propaganda in America. If you go there, you study. You study how heredity is passed down and you read the bulletins that they put up like "How To Make a Eugenical Family Study." You might read the "Trait Book" or "Family History" book and learn how to do pedigrees and pedigrees are part of your assignment after learn what the symbols are. You have to put them together you have to actually study real families and describe them in a scientific way were using these codes, which tended to focus mostly on negative traits like alcoholism, syphilis, tuberculosis, neuroses all the conditions that make people end up in state institutions. Not surprisingly since this was a focal point and then my favorite there at the bottom wonder or confirm runaway. There were serious arguments made by Charles Davenport on how people who were feebleminded were also feebly inhibited. They couldn't control themselves. They were just always moving about- couldn't keep a job. That sort of thing So this was taken quite seriously and people were taught how to do it. This is one of the early pedigrees involving people with epilepsy who lived in a specific institution in New Jersey and according to this pedigree one person gives rise to a whole family of people who end up in the local poorhouse. Another thing you would have studied were a bit classic texts about problem families. The two most important ones, there were quite a number of theses, but the most important ones. "The Jukes" written in the nineteenth century and then "The Kallikak Family" written in the early twentieth century. The Jukes family is iconic as the story of a group of people who all end up in prison or their descendants did. This was written by a man named Richard Dugdale, who describe an actual family that he track to the prisons of well, first of the Hudson Valley and the prisons of New York State. He first talked about the mother whose was supposedly the beginning of this problem family and they called her "Margaret, the Mother of Criminals." Then later he put all his research together and he wrote this book and gave her a pseudonym Ada, Ada Jukes and he highlighted her legacy with the chart that showed that nearly one-quarter of her children began a life as illegitimate children and ended up in some kind of institution. There was lots of other charting in the Jukes-lots of medical pathology. The point was that the social effective of this large family of vice was a tremendous cost to the communities where the Jukes lived. The bill for jails, for alms houses, for stolen property, for medical or legal expenses added upset to something like a million and a quarter dollars in seventy five years and that didn't even count the money that was wasted on liquor. The second study that everybody looked at when they went to Cold Spring Harbor, mostly for summer programs, they have a very active an education program there, was this the family of Deborah Kallikak, shown here from famous psychologist Herbert Goddard’s book published first in nineteen twelve. She was at the Vineland Training School and her family was traced backwards and Goddard revealed that he had found Martin Kallikak from whom all these children came ended up in the state institutions. Martin Kallikak is a kind of parable himself. He’s a Revolutionary War soldier. He’s got a good sides. He’s got bad side. He, after one particularly difficult battle, finds himself in the local tavern where he falls in among bad companions not the least of whom is a woman always described as the “feebleminded tavern girl”-some wanton who bears him a son who is known as “old horror” who had ten children shown there and from “old horror’s” ten children come hundreds according to this textbooks still in print in the nineteen sixties. Hundreds of the lowest type of human beings and then Martin found the straight and narrow and he got married. He left his old ways behind, married and worthy the Quakerist and she bore him seven upright worthy children shown there with their equally worthy hats and from these seven worthy children come hundreds of the highest types of human beings and this pathology that had grown up around the Jukes and the Kallikaks persists in American general consciousness, but also in American education. For dozens and dozens and dozens of years people of Cold Spring Harbor learned how to draw the pedigrees of the Kallikak families and Jukes. This is one that was done by some students and they also saw the other propaganda that was shown at county fairs like the one I showed you earlier or in some cases even displayed under the dome of the rotunda in the United States Capitol. These charts that talk about human traits and how they are hereditary and how they run in families in the same way that color runs in guinea pigs. “If all marriages were eugenic, we could breed this out in three generations,” it says. The triangle life shows us how environments is what you have, education is what you do, but heritage, your real heritage is what you are and that has to do with to your parents were. "Selected parents will have better children. What you really are was all settled when your parents were born" and this inside was the great aim. It says eugenics a more crude, but more direct perspective comes in this chart. This is the one that actually was under the dome of the Capitol in nineteen twenty-four when the Immigration Restriction Law was passed. Simply put, some people are a burden that are born by the rest. So this message of negative eugenics, of the need to cut down on birth among problem families, was something that was not just in the air. It was starting to be enacted into the statute books as well. It combined with religious ideas. People were very fond of using this phrase from the Bible about how "The sins of the Fathers will be visited upon children" and this from a eugenics textbook shows a man there was a very versus quoted and he is shown syphilitic father, blind son and none incidentally, the girl has a brace on her legs. The suggestion is that the sins of the father both in physical, infectious ways, but also in terms of genetic conditions are passed down from generation to generation This was a favorite troupe of an Evangelista, Billy Sunday who was always talking of one his most favored and most powerful sermons. It talked about that Jukes family and the power of one god forsaken vicious corrupt man and woman to breed and propagated and damn the whole world by their offspring. So again this is in the air. It's in the pulpits to the schools. It's certainly in the medical journals, in the scientific magazines, and it's in the newspapers all the time. Here are just a few of hundreds and hundreds of headlines talking about how we need to restrict marriage. We need to sterilized people. Breeding better folks is a way at the lower taxes so the economic message is really in the foreground. Now, let's go back to the Buck case. The lawyers in Virginia developed the case that the Buck family was just like the Jukes and the Kallikaks. So this pedigree shows us the evidence- a family who was going to swamp the state with degenerates children. They were going to fill up the jails, the asylums, the welfare rolls, and the point of the law, the laywers say, is to stop this process. It took three years for Carrie Buck's case to make it through the courts. It was appealed. The judge at the trial level looked at this evidence. saw these, this chart was actually made after the case, but it represents the evidence that was presented, showing Emmit or Emma Buck on the first generation marked with the telltale "F" for feeble minded and her husband Frank also marked similarly although he was nowhere to be found. Actually, he was dead by then, but there were other men unnamed shown in the pedigree who were the fathers of children like Carrie and Doris and Roy Smith and then Carrie, marking the second generation also with the "F" for feebleminded gives birth to Vivian Alice Elain Buck, who is also marked as feebleminded. So here are the three generations and this case arrives after the trial court judge says yes this law is valid. Its appealed to the State Supreme Court of Virginia and they too approve it as constitutional and then it's appealed as planned to United States Supreme Court where it arrives in October of nineteen twenty seven for argument to a court that includes several real legal giants. For example, here's Louis Brandeis. Brandeis, of course, being known most popularly for his invocation of the right to privacy. The right to be left alone. He is on the court with people like Chief Justice William Howard Taft who is a giant of a different kind. He's always known as the largest president ever. He's also remembered for any number of achievements. 0:34:36.409,0:34:37.999 He was the governor of the Philippines during Spanish-American War. Following that he's also the only President United States that also served as the Chief Justice of the Supreme Court and Taft is a formidable figure in many ways, but he really takes a back seat as a judge to the real star of the story and that's Oliver Wendell Holmes, Jr. Holmes has been on the court by this time for about twenty five years. He was the oldest justice. He was clearly the most famous. He had been celebrated on the cover of Time Magazine only the year earlier when he celebrated his eighty-fifth birthday. He was really all but a god to his admirers who's described by one who's as the Yankee who had come down from Olympus and a good deal of his celebrity was attributed to the fact that he was born of a famous father who was also a writer and a celebrity in his own right. Dr. Oliver Wendell Holmes, Sr. had not only been gained honors as a physician and important scientists and studied childbirth fever and wrote about it, but he was also novelist and poet, the editor for the North American View. He wrote poems that every schoolchild had learned like the "One-horse Shay" or "Old Ironsides" and legend had at that as Doctor Holmes came down every morning he would promise a different a new portion, an extra portion of marmalade to his son at the breakfast table if only little Oliver, whom they called Wendell, would say something clever. The boy later became famous as a judge for saying many clever things. You've heard all of them. First of all, he said that the first amendment does not protect reckless action like falsely yelling fire in a crowded theater. He said that even unpopular a speech could not be suppressed unless it caused a clear and present danger of violence and he also wrote a line that still vexes politicians when he described taxes as the price we pay for living in a civilized society. In Carrie Buck’s case he added another line to what was already quite an extensive judicial resume. Chief Justice Taft gave him the job, they're shown here in nineteen twenty-two, the job of writing the court's opinion. Taft was irritated. Taft was a real ministrator. He liked for people to respond when he gave them work to do. He would give work to the justices and they’d put it in the drawer in not get back to him and be slow and he really liked Holmes because he said, Holmes, he wrote home to his wife that evening I gave Holmes an assignment and he turned it around in a weekend. It turns out it was this case. Holmes wrote his short decision in just over three days. The Supreme Court had never dealt with the merits of government in mandated surgery before. much less a law that prescribed operations that were primarily design not for individual medical benefit but for state benefit, but the evidence in the Buck trial, according to Holmes was very clear. They have defected grandmother; defected mother; defective child. This certainly proves the logic of the eugenics law which was meant to put an end to this parade of defect. The law, he said, didn't defend the Constitution because citizens were often required to make sacrifices for the State and he began a paragraph of his opinion by stating that “We have seen more than once that the public welfare may call upon them best citizens for their lives.” That was not an idle comment by Holmes. It sounded a very powerful memory in his life. He had been a member of the Massachusetts unit that lost the most soldiers of any Union regiment during the Civil War. He was only twenty years old when he listed. He was sent to the front. He endured his first wound-a musket ball in the chest at the Battle of Balls Ridge. He was nursed back to health, returned to his unit again, took a second shot at Antietam- almost died there. He was lost. His father came down from Boston with a servant and a buckboard and they scoured the battlefield and couldn’t find him. They found him in home nearby. Bandaged him up, took him back home, nursed him to life and then pressured him again to return. He didn’t want to, but he returned only to be shot a third time at the Battle of Chancellorsville. So when Holmes was talking about war, this was not idle chatter. This was an experience he never forgot. He often described his own generation of one that had been touched by fired his case. In his case very literally and when he died at age ninety-four as his clerks at the Supreme Court when into his private closet to take out his belongings, they found his Civil War uniform from seventy years earlier still hanging there- cleaned and impressed, but with a mended bullet hole still showing in the chest. So said Holmes, if he had his comrades could face death for the country despite what people like Carrie Buck might think, sterilization was really a lesser sacrifice and the country could mandate to forestall what he saw it as a flood of defects. He put all these sentiments into his very brief written opinion and he said, 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 sapped the strength of the state for these lesser sacrifices in order to prevent power being swamped with incompetence. Holmes believed that life was short. He believed that early death was even more likely for these people he considered unfit. It would be preferable for them and for the rest of society by his lights if they had not been born at all and so he concludes his opinion by saying, “It is better for all the world,” not necessarily Carrie Buck, but the rest of 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.” Now most judicial opinions are full citations especially these days it quite long. You go to other cases you look for president you cite that as the rule that you're applying in this case. Holmes needed some legal authority to back up the rhetoric that he'd been using and so he looked back to an opinion, but only one from a case that had been decided in his home state of Massachusetts. The case is called Jacobson versus Massachusetts, first decade of the twentieth century, that occurred right after smallpox epidemics had been on the east coast and it was about a public health law passed that would force people we're going to school to be vaccinated. If they didn't get vaccinated they could be fined five dollars and that's what happened in this case that went to the supreme court. So Holmes looked at that case and said well the public health principle of requiring this intrusive medical prevention procedure, vaccination. That’s pretty close. It in forces the greater medical good of the community. We can use that to prohibit the reproduction of defective by coercive surgery and then he said it the principle that sustains compulsory vaccination is broad enough to cover cutting the floating. He ends his opinion in a phrase which becomes what today we would call the premium sound bite of the eugenics movement. The most powerful slogan that eugenicists ever had describes the Buck family pedigree three generations and says three generations of the imbeciles are enough. Seven of the justices including Brandeis and Taft and rest, join him. Only one justice, a man named Pierce Butler, decided to vote no, but left no opinion explaining himself. So it was an eight to one decision. That was May of nineteen twenty-seven. Virginia sterilization laws upheld. By fall of the year October, Dr. Bell sterilize Carrie Buck after a brief delay. Millions of people read about this and it was really applauded in major newspapers throughout the United States and in the wake of the case the opposition that existed, and there was some, seemed to melt away. Indiana had passed the first sterilization low in 1907. There were other, half-dozen maybe fourteen, by the time with Virginia law was passed in nineteen twenty-four and then the number ballooned to more than thirty states which had sterilization laws. The last one passed in nineteen thirty-seven. Sterilization became majority national policy in the United States. As you see here, the states that were involved. There were more than sixty thousand people. The numbers are somewhat elusive but we know at least sixty thousand maybe as many as sixty five thousand facially sterilized in institutions or another dozen countries around the world have laws like this, but to bring this home just for a bit and it's tempting to think that eugenics was from some other place in some other era, but I want to show you a couple of the slides just to show you how how powerful these ideas were right here in Michigan. There was a tremendous amount of eugenic sentiment that that came from different quarters. Here's famous doctor Harvey Kellogg ofthe of the serial family and a Battle Creek Institution. A sanitarium there which was celebrated fare and wide. Dr. Kellogg was the head of the Race Betterment Foundation, which had a number of meetings, international meetings, with people came to talk about these ideas. There was around that same timeframe a whole day dedicated by the state by different municipalities to studying eugenics and the governor, Governor Ferris then issued a proclamation on that day. Doctor Kellogg said there should be eugenics registry that would lead to a normal aristocracy of health. We would create a group human beings possessed of superior characters of mind and body and if that's not enough the Dean of the Medical School here, the famous Dr. Victory Vaughan was a strong stalwart eugenics movement. In nineteen fourteen abook was published that included essays, twelve essays, from people all over the country who were teachers and who had given public lectures in eugenics. The rule was you had to come from a certain size college, you had to have had at least two thousand people hear the lecture that you've given and for many people this was a matter of counting up the numbers and classes. There were some three hundred and twenty five schools that responded to a survey back then that they taught eugenics in colleges and universities and one of those was Dr. Vaughan. His essay was called "Eugenics From the Point of View of the Physician" and he, just to read you a couple lines, he said, "Without being alarmist or pessimistic I wish to say that the American people is threatened the spread of mental and moral degeneracy through the multiplication of the unfit. It should be evident from what I have said that alcoholism, epilepsy, venereal diseases, feebleminded, insanity and criminality should be absolute bars to parenthood. To the young man of my audience I wish to say shun the attractive, frivolous girl. She is found in every community, but the object of the eugenist is not multiply her kind, but to exterminate her. He said to deny the possibility of race betterment is the worst form of infidelity. It means to be without faith in self and fellow man and in the creator. Race betterment, which, of course, includes independence upon self-betterment should influence our daily lives, form of basis for ethical judgments, determine our political activities, and be a strong motive in our religion. well those kinds of sentiments lead to sterilization law in Michigan, which piggyback on concerns from around the country that there was this growing mass of people that was costing the citizens in institutional care as well as in prisons and other such places. Dr. Paul over who was a member of the State Hospital Commission was Enthusatics in his praise of the new sterilization law which prevents metal defectors from bring children into the world. That was the story heralded by this headline and Dr. H.E. Randall, President the Michigan Medical Association, joined with famous eugenicist Paul Popenoe from Pasadena, California, talking about the the effect of these laws in their first few years. Sterilization now offered by Michigan, said Dr. Randall is not a panacea though it has been a great benefit. So, not to pick on Michigan, but just to say we are all in this together. Thirty some states, twelve or more foreign countries, the one we remember even though we forget all the rest, is, of course, Germany. Germany has faced after the first World War with this horrible economic conditions and begins with a program of what we might call positive eugenics. Too many people dying. Not enough babies being born- let's give an award to mothers who have healthy babies and so there's the iron cross, meant to increase, the incentivize we would say today, rewards for good aryan mothers. Before too long the negative side becomes all too obvious. Here are some posters that are part of the propaganda in Germany. One of the very first laws passed by the Nazi regime in nineteen thirty-three in the wake of this kind of propaganda, is a sterilization law and this is meant to show how expensive it is to take care of people in institutions. The poster on the right shows this strapping young man, blond-haired blue-eyed, carrying these other less attractive people around who were supposed to be inhabitants of that palatial looking asylum in the background and we're told by the poster you are sharing this load. Hereditary legal person cost sixty thousand reich marks a year. Other posters like that were circulated saying that the cost of taking care of people in institutions was more than the cost of everything else in government put together. It turns out that the law passed in nineteen thirty-three, the law for the prevention of hereditary diseased offspring, goes into effect in nineteen thirty-four and the Nazis out do the rest of the world sterilizing between four and five hundred thousand people over the course of several years before the end of World War II and the law that is passed in Germany consciously reflects passages, in some cases whole sections, of Harry Laughlin model law, as well as laws that were actually passed in states like Indiana, California, and the Virginia law that were challenged in the case of Carrie Buck. Eventually, the Buck decision and that phrase of three generations of imbeciles are enough is repeated when after the second World War in the nineteen forties and nineteen forty-seven the Nazi doctors are put on trial for the horrific experiments that they engage in and the extermination camps, science torture in the guise of science, as it is called by the prosecutors at Nuremberg. The attorneys for the Nazi doctors respond to some of these charges which included the charge that experimental surgeries were done in the camps-chemical surgeries some using x-rays that people didn't know they were exposed to others with novel kinds of surgery many cases true torture that those things were crimes against humanity and war crimes in which the doctors could be prosecuted for them. Their response was to say you did it too and then read the into the record the opinion of all of them. Wendell Holmes from the case of Buck v. Bell. Now that history alone would probably justify grouping the Buck decision as one of the most notorious Supreme Court cases, along with cases like the infamous Dred Scott case we said blacks could never be citizens or the Korematsu decision which interned Japanese-Americans during World War II, but I’ve tried in writings for a number of years, to tell the rest of the story and it does seem to me that it makes the Buck case even more startling. When you realize that this case began because this man D. Alber Priddy, who was the founder of the Virginia Colony for epileptics and the feebleminded back in nineteen ten. Dr. Priddy wanted the sterilization law passed in the first instance for one simple reason. That's because you'd already started sterilizing people. From nineteen sixteen to nineteen eighteen he sterilize dozens of women that he thought were sexually immoral. They've been picking up picked up on the streets of Richmond, Virginia and other cities He simply took in the operating room and sterilize them. He was eventually sued by a man whose wife and daughter had been sterilize there. The case dragged him into the court of Richard. He was very embarrassed and quite angry. He went to his lawyer after he escape that case. The judge said you know I’m not going to find you, I'm not going to give the plaintiffs money for this case 'cause there's an argument to be made that maybe they need it for therapeutic reasons, but don't do this anymore until there's a law and so we went to his lawyer and asked him to draft pieces a legislation that would allow for him to be sterilizations and prevent him from ever being sued for it. So the immunity provisions in this law that was upheld by the Supreme Court was one of Albert Priddy's strongest motives for having it passed. Dr. Priddy died just after the case was decided at the trial court level. It passed on to Dr. Bell who became the named plaintiff on appeal. Here is Carri Buck who went on to live for another sixty three years and all her life she was poor. When she died she and her family that survived still carried the shame of the Holmes opinion. This is a picture of her from nineteen eighty-three. I interviewed her then about three weeks before she died and she confirmed to me then that she was pregnant in nineteen twenty three not because she was morally deficient because she had been assaulted by her boyfriend. She did not intend to be pregnant. He disappears from the picture. Daughter Vivian grows up is raised by the same woman who raises Carrie Buck, sent to the local school, really taking care of and becomes under the name of the Dobbs family her foster parents, an honor roll student for part of her second year and then promptly gets the measles that summer and dies of some intestinal disorder leaving behind only this record which shows that she was not appropriately describe as feebleminded, but was, in fact, on the honor roll and to the lawyers in the group,if there are any, the big shame in this case, I think, falls to the lawyers. That's because this man, Irving Whitehead, was appointed, very successful lawyer, was appointed to represent Carrie Buck, but he did not. He was best friends with the lawyer on the other side not in itself all that strange in a little town, but he was one of the founding directors of Colony for the Epileptics and the Feebleminded. He had lobbied for and voted in favor of sterilization even before the law allowed for it. He had appeared before the board of directors of the colony as this case was going to the courts and was being decided against him and he said after he lost, twice, the case was in great shape and it was likely to go to the Supreme Court which is what they had planned all along. They could not wish for a better result. So Whitehead really betrayed his client. He defrauded the court and the real story of the Bucks is much more complex than the one we're left with from the Holmes opinion, but these details remain hidden. We also learned years later that Harry Laughlin who writes the model sterilization law, gets an honorary Doctorate in Medicine from University of Heidelberg on the occasion of its five hundredth and fiftieth anniversary He is given in absentia this degree for his work what was called the science of racial cleansing. So, that's the Buck case. We look at the case very differently now. We look at sterilization very differently. There has been a movement to for states to face this history and the first one that did that was Virginia where the Buck case took place in the same neighborhood where Vivian Buck went to school. This marker put up in two thousand and two on the seventy-fifth anniversary the Buck opinion. I joined with my colleague, Alexander Stern, to go to Indiana in two thousand seven where we put on a symposium about eugenics and were happy that our colleagues there were able to engineer getting this marker put up along with apologies from representatives of all three branches of government and most recently North Carolina also address their history put this marker up in two thousand and ten and are even today debating whether or not they're going to make preparations in the form of money payments to the few people who are still surviving who were sterilized in nineteen sixties and the seventies. So to end this just, I want to say that these seem like old ideas that have probably gone away by now. That was then, this is now it's different world, but I think it's a mistake to think that way. It's a mistake because we still have legislators popping up and I could give you a drawer full of these if you were interested, showing how from time to time someone will step forward- public official, educator, legislator and say the kinds of things that were exactly the same sentiments that were mouthed at the Buck trial found. This man, not pick on him, but he is the most recent man, Martin Harty, was a legislator up in New Hampshire last year and he said there's too many defective people. You know the mentally ill, the retarded people, physical disabilities, drug addictions, people society would be better without. He eventually had to retire. He had said in another one of his talks that nature has a way of getting rid of really stupid people, but now we're saving everyone who was born. I wish we had a Siberian so we can ship them all off and they'd freeze to death- clean up the population. Well clearly politicians can say that sort of thing these days even though they may think it, but the fact that some are more willing to say it suggests to me that those ideas are far from gone. This is a list of, a small list, of some of the very famous people who in one way or the other and I emphasize one way or the other 'cause not all of them are in favor of sterilization and you know would not have argued in favor of euthanasia or favorite anything happened in the death camps, but at one point or another they all supported some idea that had to do with eugenics. Maybe it was just the better baby contests or the positive sides of public health. Maybe it was the negative sides of enforced birth control by sterilization, but you can see it's an extraordinary list. It includes something like five presidents of the United States. It's worthwhile when we remember eugenics to realize that it wasn't just a small group of cranks that the seductive ideas about eugenics where ideas that all of us at some level have endorsed. We all love to see a world where there was no disease or where there was no crime; where there was no poverty; where everybody got along and if you could convince yourself that there was a scientific technological way to pull that off that would be a popular idea even today. Talks like this are meant to remind us that we tend to make a lot of mistakes when were making decisions for other people particularly the usual suspects those people who are blamed for the ills of society when things get bad in the economy gets tough. Now I’m going to stop there and show you, this is a shameless self-promotion, this is the book where the story is. Not that you need the book, but the website is something I'm particular proud of because the website I put up, in the education community I should be able to say this, I put it up for people who teach and for students and it includes all of the documents that were part of the Buck case. All the legal documents as well as many, many references that are that are part of the story that are available for free 'cause they're not copyrighted anymore. If you go to that website you can see those documents especially the teachers in the audience. I’m going to stop there and open it up to questions. Thank you very much.