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Oliver Wendell Holmes and His Imbeciles
©
2011
Gregg Zegarelli
Attorneys tend to be
good at telling stories—or, at least they should be. So, being an
attorney, I am glad to tell you a story. If you can bear with me—if you can take it slowly and digest it, without taking offense—you may
find it interesting. I hope I tell it well for you. This is a
true story of a journey, but, it is not necessarily a pleasant story.
The burrowing truth does hurt.
I should make something
clear, even though I have already stated it. I am an attorney.
My degree says, Juris Doctorate, a Doctor of Law, if you
prefer. Yet, I am not necessarily judging my story's circumstances, I
am assessing the circumstances, so that I can think about them, with
you.
I am admitted as a member of
multiple courts throughout these United States, so I mean no disrespect or
offense to the courts, as such. And I, myself, have family members
and friends with special needs for whom I have deep and complete love, so I
do not possess any hardness of heart. If the truth itself is hard,
that is a distinct point of assessment. Such as a medical scientist, I
suppose, I do not take joy in assessing the unfortunate cause for disease,
but I do take some joy in finding a cure.
_____________________________
I will work backwards,
just a bit. After practicing law for more than 23 years, I now tell
clients that an excellent judge is a "Gift from God." A
"Gift from God," truly. In my now first-hand seasoned
opinion, it is quite rare to receive an excellent judge. Maybe it is
a scary thought—although formulaic—that excellence is relative and
exceptional. A judge must be smarter than some attorneys who are
laying tricks and traps, and we know that there are some very smart
attorneys. I suppose it is the same for doctors of medicine for the
disease that is infecting the body, or the injury that cripples the body.
In law school, I had
the cause to study
Oliver
Wendell Holmes, Jr. somewhat closely. Holmes is on a United
States postage stamp for a reason. Holmes is recognized—albeit
from many less competent persons who are not capable of judging him—as
being an excellent judge. Holmes was a philosopher, a legal
philosopher. You may not know it, but that great quotation by John F.
Kennedy is paraphrased Holmes. Holmes said:
It is now the
moment...to recall what our country has done for each of us, and to ask
ourselves what we can do for our country in return.
Holmes, Memorial Day
address in Keene, New Hampshire, on May 30, 1884.
Now, a few years ago,
after practicing law for about 20 years, I had experienced some excellent
judging; yet, I experienced enough of not-so-excellent judging (so I think)
to cause me to start to consider that a judge, as a mere human being, could
do just about anything and rationalize it. So, I started to research
some cases to see how justice plays out in the hands of judges. This
was not about Socrates, Jesus, Gandhi or Martin Luther King, Jr. --
different, but something more in line with Abraham Lincoln.
The first case I found
was
Plessy
v. Ferguson (1896). You might not recall the case, but you
may recall the situation.
Mr. Plessy was 7/8ths
Caucasian, and 1/8th African American. Plessy sat in the railroad car
allocated for Caucasians, and he was arrested for doing so. The
reason he was arrested was because he was a man of color, being 1/8 African
American. He refused to sit in the railroad car allocated specifically
for people of color.
The United States
Supreme Court heard the case and voted unanimously, except for one Justice,
that, yes, 1/8 African American Plessy must effectively "go to the
back of the bus." "All men are created equal," as the
Declaration of Independence assures, but the law permits "separate but
equal" based upon race.
Only one Supreme Court
Justice,
Justice
John Harlan, dissented from all other Justices, opining:
[T]he Fourteenth
Amendment, [added] greatly to the dignity and glory of American
citizenship... If a State can prescribe, as a rule of civil conduct, that
whites and blacks shall not travel as passengers in the same railroad
coach, why may it not so regulate the use of the streets of its cities and
towns as to compel white citizens to keep on one side of a street and black
citizens to keep on the other?... [Or, then,] why may not the State require
the separation ... of Protestants and Roman Catholics? ...
But in view of the
Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our
Constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before
the law.
The humblest is the
peer of the most powerful.
The law regards man
as man, and takes no account of his surroundings or of his color when his
civil rights as guaranteed by the supreme law of the land are involved.
... The destinies of the two races, in this country, are indissolubly
linked together, and the interests of both require that the common
government of all shall not permit the seeds of race hate to be planted
under the sanction of law. …
"The law
regards a man as a man." Wow. I want to cry every time
I read this passage. And, this was the one-justice dissent, fighting
for the obvious, if you will, with all the other Supreme Court
"Justices."
As if I needed to
become degreed with a Doctorate of Law to know that a "man is a
man." Somewhere, all those important degrees confused those
important men on the Supreme Court. Maybe too much knowledge just
makes us stupid. It brings to mind the carpenter Jesus asserting the
yoke is easy, just love. And, my non-doctor father asserting just not
to eat as much and exercise.
But, back to the
quest that judges can rationalize anything. I kept researching. So,
the next line of my thinking transcended, maybe descended, to the
Nuremburg
Trials. You may recall that the Nuremburg Trials regarded
the sentencing of Nazi officials, including trained judges with doctorates
of law, for crimes against humanity: including persecution, sterilization
and extermination. German Judge Schlegelberger, a Doctor of Law,
rationalized for the sterilization of people of Jewish faith. Of
course, as it always is, there are many excuses for the rationalization, or
reasons for the rationalization, if you will. Certainly, some might
argue that the separation of some people is not the same as extermination
of some people, but the point may be more an element of the solution,
rather than the underpinning philosophy of causation: indeed, both societal
final solutions—separation and extermination—grow from the same seed
of racial prejudice, separation just comes first. That said, I
dismissed use of the Nuremburg Trials because they were not based upon the
United States Constitution.
From the point of
thought of Nazi sterilization, the next case I reviewed was the United
States sterilization case of
Buck
v. Bell, 274 U.S. 200 (1927). You might not recall this
case, as it was a bit less socially pervasive than Plessy.
In this case, the United States Supreme Court ruled that compulsory
sterilization of the mentally ill is constitutionally permitted. In
Buck, in an 8 to 1 decision, the United States Supreme Court held:
It would be strange
if [the government] could not call upon those who already sap the strength
of the State for these lesser sacrifices, often not felt to be such by
those concerned, in order to prevent our being swamped with
incompetence.
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. The principle that
sustains compulsory vaccination is broad enough to cover cutting the
Fallopian tubes.
Three generations of
imbeciles are enough.
Again, this was the exact
language of Supreme Court of the United States of America. Initially, when I read "three
generations of imbeciles are enough," I felt I hit my mark:
A judge
can rationalize anything,
and say anything, and do anything:
Separation
of races (but
equal), racial genocide
and sterilization of mentally ill.
All the
rulings from judges, all Doctors of Law.
But, wait! At
this point, the research took a twist for me.
Buck had something different.
The opinion in Buck was written by Oliver Wendell Holmes! Respected, postage stamp,
Holmes. My friend, Oliver Wendell Holmes! Should it, instead,
be mean-spirited and rude Holmes?
On one level, the
author of a judicial opinion is immaterial, but, on another level, it was
my boy, Holmes. Something was wrong.
So, maybe I now
rationalize, or I am not excellent enough to judge the excellence of the
greater Holmes, but I believe that Holmes' power to analyze conditions was
superior. For me, there is always something to learn with
Holmes. Therefore, I pressed my thinking to see if there was some
distinction with the ruling in Plessy, which offends my sense of
justice. Does this mean that my boy Holmes would have ruled with the
majority in Plessy, if he were on the Supreme Court at that
time?
But, aha! I found
the difference, and I am chagrinned that it took a while—maybe too
long. Here it is:
The ruling of the
Supreme Court in Plessy "separate but equal by racial
prejudice" violated a fundamental rule of Thomas Jefferson's Divine
Providence: to wit, that all men are created equal. The color of a
man's skin cannot foretell the man's social contribution; that is, skin color
does not divine or drive deeds, skin color is or should be
irrelevant and immaterial to the social effect of a man. But, let us see
if there is a difference in the Buck case.
Hold fast and remember the paraphrased Holmes, made famous by John F. Kennedy:
Ask not what your country can do for you, ask what you
can do for your country.
All in, every person
who does not pull his or her own weight in society, however measured,
burdens society. It is simply formulaic. Society will properly endure
some general social weight for the overall good of the society, but, such
as it is, there are constraints and limitations. Patriotism: To give
to your countrymen, and try not to take from your countrymen.
So, is Oliver Wendell
Holmes, a philosopher, author of tender poetry, respected as one of the
greatest jurists of American Jurisprudence, and a respected face on a
United States postage stamp, just being mean, or was he necessarily stating
some truth?
Let us look closer
at what Holmes said, and really think about the context:
It would be strange
if [the government] could not call upon those who already sap the
strength of the State for these lesser sacrifices, often not
felt to be such by those concerned, in order to prevent our being
swamped with incompetence. It is better for all the world...
Three generations of imbeciles are enough.
Now, the back
story. It was 1927. It was post-World War I, pre-Great
Depression, pre-New Deal, pre-World War II. Holmes was a 1861
graduate of Harvard University. During his senior year of college, at
the outset of the American Civil War, Holmes enlisted in the militia.
He was appointed to the Supreme Court by none other than "every man
must pull his own weight" Theodore Roosevelt.
Oliver Wendell Holmes
loved his country. He was trained to battle for America, to be
wounded, to endure pain for the cause. He would sacrifice his life
for the good of the greater body and greater cause. Indeed, he
volunteered to die for his country. We are all going to die
anyway. Two oaths by Holmes: one to the militia, and one to the
courts; both to serve and to protect America and Americans. Holmes
was a soldier, a warrior, blessed for duty to serve in both pen and
sword. Not everyone gets both blessings, and some do not get either.
The concept of duty was
so deeply engrained into Holmes, that he thought "it would be strange"
that the state that "calls upon" soldiers to die for the
greater good could not also call upon the mentally ill to painlessly stop
procreating for the common good. Effectively, if incompetent persons
could understand their duty for the greater good, they would understand to
perform the sacrifice of stopping their procreation for the common
good. Sterilization is the "lesser sacrifice"
because it is not death, and, I suppose, unlike the horrors endured by
soldiers in war, the procedure is painless and probably without the
mentally ill person knowing what happened, as "not felt to be
such by those concerned." I am not endorsing the comment, mind
you, I am studying, as a political scientist, I suppose, the American historical philosophy of it, by a
renowned great
thinker, as of 1927.
And, let us not rhetorically confuse Holmes.
The ruling in Plessy is not about the superficial judgment
of a person by incidental race, religion or skin color. The effect of
the ruling has no causation from an irrelevant attribute.
Though
subtle, the ruling is the exact philosophical opposite: the judgment is
based upon the presumed social conduct and contribution of the mentally ill
person. Absolutely, based upon the circumstances of the time, there
may be a presupposition in Holmes of what a mentally ill person can contribute
to society or will draw from society, but that is a different analytical
point. What is important is to perceive the subtlety of his
thought-process for the existing context.
The American philosophy
of the day was to "pull your own weight." There was no
social security, no job security. If an employee did not pull for the
employer, the employee did not feed his or her family. There were few
governmental safety nets, each person had to produce. We simply had
to pull our own weight. There are, of course, extremes to, and flaws
within, all systems, but doctors must be careful to cure the disease
without killing the patient.
The "lesser
sacrifice" by Holmes was merely the acknowledgment of a warrior that
each individual in society must do his or her respective duty for the
common weal. Holmes was wired for duty. For Holmes, the duty of
every citizen, although different in implementation, is no less the duty of
every soldier.
Social responsibility begins with duty and
self-actualization. For that philosophy,
it is simply not fair that
someone should not pull their own weight.
It is quite un-American, in
1927.
Pleasure without pain
is Utopia. To the 1927 mind of a great legal philosopher, tender poet
and respected face of America on a postage stamp. Holmes was not just
being mean. He was exposing the subtlety of American Duty, as he
understood it.
If we care to take the
lesson, there is always something to learn from the greater Holmes.
It is now the
moment
to recall what our Forefathers and Countrymen have done for each of us, and
to ask ourselves what we can do for our country in return.
How you interpret the
above journey and how you reconcile it is for you alone. Each of us
must find duty to our countrymen and implement by self-actualization in our
own way. In a
capitalist system, freedom is tied directly to the economy. Maybe it
is as simple as considering to buy American. You should know that I
traded-in my BMW, and I love my Ford. It didn't hurt a bit.
It would be strange
if the government could not call upon those who already sap the strength of
the State for these lesser sacrifices, often not felt to be such by those
concerned, in order to prevent our being swamped with incompetence.
—Gregg Zegarelli
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