Justice Holmes, Buck v. Bell, and the History of Equal Protection

By Stephen A. Siegel. Full text here.

Most everything Justice Holmes said in upholding eugenic sterilization in Buck v. Bell has been extensively criticized. However, his impatient response to Carrie Buck’s equal protection claim, dismissing it as “the usual last resort of constitutional arguments,” is still believed to be an accurate depiction of the equal protection clause’s place in constitutional analysis before the Supreme Court systematically began attacking racial discrimination in the 1950s.

In this Article, Professor Siegel disputes this understanding of the history of equal protection. He analyzes the course of compulsory sterilization litigation before Buck v. Bell to show that equal protection had proven to be the strongest constitutional claim for defendants seeking to prevent their involuntary sterilization. Then he surveys the many instances in early twentieth-century law, both before and after Buck v. Bell, in which the Supreme Court struck down legislation on equal protection clause grounds. Professor Siegel concludes the Article with a discussion of the implications of his revisionist history of the equal protection clause for an understanding of constitutional norms in the Lochner era.