Buck v. Bell

At first blush, setting the text of a Supreme Court decision to music may seem like a strange idea.  It might seem stranger still when the decision enshrined into law the prejudices of the 1920s—that the so called “feeble-minded” should be subject to compulsory sterilization. 

But that decision, Buck v. Bell, was the subject of an extraordinary concert and talk-back session last month, sponsored by the Department of Music, the Law School, and the Markkula Center for Applied Ethics.  As Ethics Center Associate Director Margaret McLean put it, the event set the stage for an exploration of “what we do when wrong masquerades as right, when the public’s welfare shreds individual rights, especially that most intimate right to procreate.” 

Law School Professor Michelle Oberman introduced the program with background on the eugenics movement, which, she said, “was predicated on the idea that society was threatened by the growth of undesirable segments of the population, and that the traits of those deemed “undesirable” were hereditary.” Parents of sub-normal intelligence, it was believed, would give birth to children of sub-normal intelligence. 

According to the conventional wisdom of the time, Oberman said, “Eugenics policies promoting sterilization were justified in order to prevent society from being swamped by incompetence. Why wait for the “imbeciles”—that was the scientific term of the day—to starve or turn to crime?” 

The movement, which eventually led to some of the worst excesses of the Nazi regime, was also popular in the United States.  In fact, the Buck v. Bell decision was written by one of the greatest jurists of his time, Oliver Wendell Holmes.  

So why memorialize this now discredited piece of jurisprudence?  Composer Scot Hanna-Weir explains: 

When most white male composers want to write a social justice­–themed piece, they turn to poetry by minorities and set that text. I wanted to do something that was more authentic to my identity and thought that a way I could use my privilege is by highlighting some terrible things that people like me have done in their official capacity. I asked my partner Mary, who is a lawyer, if she could give me some instances where the US Government had done terrible things in their official capacity. She gave me a great list, and when I read the decision for Buck v. Bell, I was struck by how unfamiliar this history is. It seemed important to shine a light on this issue. 

Hanna-Weir shone that light with a work scored for choir, string quartet, piano, and marimba, which was performed by the SCU Chamber Singers for an audience of students, faculty, staff, and members of the community.  The concert was followed by small group discussions, facilitated by students from the SCU School of Law.  The event concluded with a panel discussion featuring Hanna-Weir, Oberman, and McLean. 

McLean noted that, although our society has since rejected the premises of Buck v Bell, we still have much to learn from analyzing this chapter in our history:

While we find the decision of the Court morally repugnant, will we heed its cautionary tale or embrace the eugenic potential of contemporary genetic medicine, seeking not only to eradicate genetic disease but doing so by mandating adult genetic testing and counseling, restraining reproduction through the force of law, or criminalizing parents for passing genetic risks on to their children?  How might we counter the genetic reductionism inherent in such thinking and cultivate compassion and humility?