Oliver Wendell Holmes, Buck v. Bell & the cultivated ignorance of Mr. David Oshinsky: a comment by American Writer

‘ By most accounts, Holmes, an upper-crust Bostonian, served the nobler instincts of America’s privileged classes. That is why his reckless majority opinion supporting forced sterilization in a 1927 case remains an enigma. Was it an isolated misstep or something more: an indictment of Justice Holmes and the Progressive movement he appeared to embrace?’


Published November 1995



Published December 2000


Perhaps Mr. fell victim to the ubiquitous Holmes Mythology,here codified by Prof. White?


Published January 2000


On the vexed question of Buck v. Bell, Professor White quite carefully sidesteps the moral question raised by the Buck v. Bell decision, in Law and the Inner Self, by opining that we of the 20th Century are amiss in imposing our moral/ethical view on the 19th Century jurist. Call this utterly weak if not a complete surrender to the Myth of Holmes’ status as Sage!

From 408 of Law and the Inner Self: ‘He wrote Lewis Einstein in 1927, after the Buck v. Bell decision, that “establishing the constitutionality of a law permitting the sterilization of imbeciles…gave me pleasure”.

Professor Alschuler’s Law Without Values is the antithesis of Prof. White’s illuminating biography’s want of candor or political/moral courage. Just call it a necessary polemical antidote to the Holmes Hagiography, that afflicts American intellectual life, and in this instance Mr. ‘s collection of cliches: ‘ nobler instincts’, ‘why his reckless majority opinion’, ‘ ‘remains an enigma’,’an isolated misstep’, followed by this expression of abject self-imposed ignorance posed as a question: ‘an indictment of Justice Holmes and the Progressive movement he appeared to embrace?’ Justice Holmes read Spencer’s Social Statics and was a Social Darwinist, if not in name, then in the spirit of Spencer’s survival of the fittest! Buck v. Bell is the monument to Holmes as American Monster!

American Writer



About stephenkmacksd

Rootless cosmopolitan,down at heels intellectual;would be writer. 'Polemic is a discourse of conflict, whose effect depends on a delicate balance between the requirements of truth and the enticements of anger, the duty to argue and the zest to inflame. Its rhetoric allows, even enforces, a certain figurative licence. Like epitaphs in Johnson’s adage, it is not under oath.' https://www.lrb.co.uk/v15/n20/perry-anderson/diary
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