Louis and Carrie

Carrie Buck and her mother

I'm pleased to be named to the Kentucky Humanities Council Speakers Bureau for 2023-24. I'll be talking to schools, civic groups, libraries, and so on about Louis Brandeis (1856-1941), one of the most influential people in American history and a proud product of Louisville. Brandeis University and U of L's law school, where he donated his papers after his death, are named for him. Both he and his wife are interred below the law school.

Brandeis was brilliant, graduating at twenty from Harvard Law with the highest grade point average the school had seen. He made his name as "the people's lawyer" for his relentless campaigns against the railroad and other trusts then dominating American life.

He and his law partner wrote an influential law review article arguing that Americans have a right of privacy—a "right to be left alone"—that bloomed into the governing principles for both civil and criminal cases to this day. Rights we take for granted—the right that the government not eavesdrop on our electronic communications without a warrant, the right to buy birth control, the right to speak freely except in the most dangerous situations—all owe much of their legal foundation to Brandeis.

He was a guiding light of the Progressive movement, giving legal substance to minimum wage and hour laws, and he helped create the Federal Reserve System, among many other accomplishments. When he was nominated to the Supreme Court in 1916 he was bitterly opposed by conservatives and the Senate took the unprecedented step of holding public hearings on his fitness to serve, delaying his confirmation by months. It was obvious that much of the opposition, whether they admitted it or not, wasn't ready to see a Jew in such a lofty office.

He served on the court for twenty-three years, pulling it sharply to the left with majority opinions on freedom of speech, states' rights to tax income, the power of government to break up monopolies, the right to privacy, and the application of state over federal law. He became a confidante of Franklin Roosevelt and a strong proponent for the creation of an independent Jewish state.

A few years ago I tried for a different role on the Kentucky Humanities roster, one in which historical figures are portrayed in costume with one-act shows—think Daniel Boone, Grandpa Jones, Belle Brezing. I didn't get chosen to be Brandeis, despite my string tie and wire rim glasses. I wasn't disappointed.

In the one-act play I wrote, Brandeis returned from the dead to speak about his career and answer questions. I needed an antagonist, and (in addition to the railroad tycoon J.P. Morgan, who hated Brandeis) I chose Carrie Buck. In my play she haunted Brandeis.

Carrie Buck was a young woman who had been sent to, essentially, a reform school for girls. She already had a child and had been raped by a man in her adopted family, became pregnant, and was put away as mentally undesirable.

The issue in the case of Buck v Bell was the constitutionality of a law allowing the sterilization of those deemed unfit by society. Justice Oliver Wendell Holmes, writing the majority opinion to uphold the law, famously declared, "three generations of imbeciles are enough. 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.”

Carrie, by all subsequent accounts was of near-average intelligence, as were her mother and her child. But she had a terrible lawyer and lost in the lower courts. When the Supreme Court took up the case Brandeis joined Holmes' opinion, agreeing that the sterilization law was valid. After all, Progressives want to improve the human race "for the protection and health of the state."

Buck v Bell was a 1927 decision. After Hitler took power in Germany in 1933, the very first law passed by the Reichstag was a law for the sterilization of those "diseased by heredity." Later, Nazis used American legal precedent at their Nuremberg war crimes trials to say, this is what civilized peoples do. Who are you to tell us who is worthy, and who is not? This will improve the race. Look at how America treats its undesirables.

Neither the war nor its aftermath changed the law in America. In 1942 the Supreme Court in Skinner v. Oklahoma went so far as to exclude white-collar criminals from sterilization as punishment, the state rewriting the law to explicitly target the poor and people of color.

By 1961, according to Meagan Day writing in Timeline, "over 60,000 people had been sterilized under these laws--61% of them women. In some states, the laws were applied exclusively to young women. Many eugenicists believed that people of Nordic and Anglo-Saxon descent possessed the best genes. People of color were genetically sub-par, so if they committed a crime, became pregnant out of wedlock, or performed poorly on an IQ test, the chances of compulsory sterilization were high… Poverty itself was a sign of unfitness and genetic defectiveness. Upper- and middle-class white Americans were alarmed by the increasingly mobile underclass, and instead of turning to economic explanations and solutions to the problems posed by poverty, many believed the eugenic argument that reproduction among the poor was to blame for slums and crime."

Day noted that poor Southerners "underwent the procedure [so routinely] that it became known as a ‘Mississippi appendectomy."

Women were sterilized to control their sexuality; men to punish their criminal behavior. Or because their features were misshapen. Or their opinions were crazy.

Buck v. Bell has never been officially overturned. It wasn't until 1978, when a victim of forced sterilization sued the State of Indiana and won, that legal obstacles effectively put a stop to mass compulsory sterilization.

Brandeis' jurisprudence is still highly persuasive in legal matters and by all accounts he was brilliant and thoughtful. In addition to his opinion of our current political and economic situation, where big banks and social media companies control so much of our lives, I'd be curious to hear how he might explain "the right to be left alone" to Carrie Buck.

Louis Brandeis

Photos courtesy University of Albany and Time Magazine/Wikpipedia.