Constitutional Law Stories: Heroes and Villains [No. 86]

September 10, 2019

If you were to put together every book of
American Constitutional Law stories, and put them all in one room, and devote a couple
months to reading them all, you would see that every story shares the same narrative. Roughly speaking, the narrative is states
as villains, ah whether it’s state governors, state legislatures, state courts, and the
hero role is usually played by the federal government and usually it’s the U.S. Supreme
Court that comes in to save the day. Now, in American history there is some support
for that narrative. Jim Crow is the best example, leading to Brown
versus Board of Education where really it’s fair to say the states had set a negative
example and that negative example ultimately affected the meaning of Federal constitutional
law. The truth of it is there have been many situations
where the leaders of right protection have been state courts or in some cases state legislatures. And it seems helpful if you’re going to understand
American Constitutional Law in its totality you really want to know both stories. One example, that there’s a part of the story
that most people know, and a part of the story most people do not know. The eugenics movement was a rather unfortunate
episode, lasted about 75 years. It was thought that there were good genes
and bad genes, and having people with bad genes breed less would help society, having
people with good genes breed more would help society. So the upshot of the eugenics movement was
the passage of state laws that allowed states to involuntarily sterilize individuals who
had either mental disabilities or had violated criminal laws. Now the part of that story that most people
know is that led to the decision in Buck versus Bell in 1927, an 8-1 decision written by Oliver
Wendell Holmes upholding these involuntary sterilization laws. So that’s a case by the verdict of history
where we would all agree the U.S. Supreme Court got that one wrong. The part of the story that most people don’t
know is that before 1927, before the Buck versus Bell decision, six state courts had
reviewed the validity of these laws and all had invalidated them, all through opinions
that most people today would say got the issue decided correctly. It seems to me federalism and the 50 state
courts and the 50 state constitutions give us an opportunity to relieve that some of
that pressure and perhaps be a little more patient before we adopt one national approach
to some of these um rights protections. I would say that we’re living in an era where
we responded to the risks of Jim Crow of allowing too much state power which lead to some serious
deprivations of liberty in American history. At times it will be appropriate to nationalize
a right to resolve certain disputes nationally. But I think it’s dangerous to be impatient
about that because the risk is you’ll too quickly, too precipitously nationalize the
right and perhaps pick the wrong interpretation.

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