Posner on Miscegenation

The great jurist and prolific writer Richard Posner (one of my personal heroes) reviews two books on the history of miscegenation in America at The Book.  Posner claims that anti-miscegenation claims were so pervasive, and were not struck down, so far into the 20th century, because of eugenics.  The following passage in particular struck me as terrifying:

"In 1927, the Supreme Court, in an opinion by Justice Holmes, upheld the constitutionality of a Virginia law that required the sterilization of women diagnosed with hereditary “feeblemindedness.” As a result of the decision, Carrie Buck, a young woman who had had a child out of wedlock, was sterilized. The opinion contains one of Holmes’s best-known aphorisms: “Three generations of imbeciles are enough.” Holmes’s opinion was joined without demur by Justice Brandeis. Both Holmes and Brandeis were brilliant, advanced thinkers—Holmes a passionate Darwinian, Brandeis a crusading liberal. Lombardo’s book shows that while Emma Buck, the mother of the woman who was sterilized, may well have had serious mental problems, both Carrie Buck and her daughter were mentally normal. But Carrie Buck was incompetently represented by her lawyer, and as a result evidence that she and her daughter were normal was never presented to the Supreme Court."

Holmes and Brandeis, widely considered by most lawyers today to be among the three or four greatest Supreme Court justices ever, standing behind eugenics.  To be fair, during the first half of the 20th century (basically until Hitler got behind it) belief in eugenics in particular, and social Darwinism in general, was the norm.  Amazing how ridiculous beliefs can become pervasive even among our greatest minds.

Posner also comes out (if he hasn't before) in his review as a living constitutionalist:

"The most interesting legal aspect of the history of miscegenation laws is the support it provides for the proposition that the meaning of the Constitution can change—although the words do not change—because of changes in the environment."