Dissident Veteran For Peace

In 1927, Justice Oliver Wendell Holmes, Jr. wrote the infamous majority opinion in Buck v. Bell, which gave the US Supreme Court's imprimatur to compulsory eugenic sterilization. While reading about Holmes in Adam Cohen's less-than-groundbreaking Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck (Penguin Pr., 2016) I was surprised to learn about Holmes' ties to prominent American Zionists.

Holmes' Zionist coterie included Louis Brandeis and Felix Frankfurter, both of whom eventually became US Supreme Court Justices. According to Alison Weir, author of Against Our Better Judgment: The Hidden History of how the United States was used to Create Israel (CreateSpace, 2014), quoting Peter Grose, Brandeis and Frankfurter were both members of "an elitist secret society called the Parushim, the Hebrew word for 'Pharisees' and 'separate,' which grew out of Harvard's Menorah Society." Also according to Weir, quoting Sarah Schmidt, membership in the Parushim required candidates to give "specific assurances regarding devotion and resolution to the Zionist cause ..."

According to Cohen (p. 228), it was Brandeis who raised the money to fund Holmes' law professorship at the Harvard Law School in 1882. Cohen also reports (p. 238) that Frankfurter and Walter Lippman, co-founder of the New Republic, formed the core of "the House of Truth", an "influential group" that "adopted Holmes" as their "progressive champion" on the Supreme Court. Once so adopted, "the pages of the New Republic and the Harvard Law Review began to fill up with accolades" for Holmes.

According to American Zionism: Missions and Politics by Jeffrey Gurock, ed., (Routledge, 1998, 2013) Lippmann was among those "co-opted to leadership or special assignments for the regular and emergency Zionist organizations" Brandeis "controlled" (p. 25). When Brandeis and Chaim Weizmann became embroiled in dispute following an international Zionist leadership conference in London in 1920, Lippmann tried to mediate (p. 66, n. 110).

Lippmann was also a key member of Col. House's "Inquiry," an unofficial post-war foreign policy planning group created to bypass the State Department. The secretive Inquiry was the brainchild of Felix Frankfurter (Godfrey Hodgson. Woodrow Wilson's Right Hand: The Life of Colonel Edward M. House (Yale UP, 2006) p. 158).

When a journalist publicly revealed the existence of the Inquiry "A furious Wilson suspected Frankfurter" and although Lippmann tried to provide cover for Frankfurter, "Colonel House was not dissuaded. 'The Jews from every tribe have descended in force, they seem determined to break in with a jimmy if they are not let in,' House complained to the President" (Ronald Steel. Walter Lippmann and the American Century. (Transaction Publishers, 2008) pp. 129-130).

One of the most important things that came out of the Inquiry was Woodrow Wilson's Fourteen Points, which Frankfurter claimed was "drafted more or less" by Lippmann (Howard Grief. The Legal Foundation and Borders of Israel Under International Law (Mazo Publishers, 2008) p. 297). Instead of promoting Arab self-determination, the twelfth point help lay the basis for the permanent dismemberment of the Ottoman Empire and the splitting off of Palestine, under a pro-Zionist British mandate, from Syria, under a French mandate.

Cohen describes Zionist Harold Laski as a mere "friend" of Holmes (pp. 245, 282). Laski was, in point of fact, Holmes' close confidant. When the extensive correspondence of the two men was published in 1953 (Harvard UP) as the Holmes-Laski Letters: The Correspondence Of Mr. Justice Holmes And Harold J Laski, 1916-1935, it contained a foreword by Felix Frankfurter.

It appears from Cohen's book that none of the Zionist members Holmes' "progressive claque" ever publicly criticized Buck v. Bell although Lippmann had written a series critiquing intelligence testing in 1922. Judging from their published letters, Laski apparently said nothing privately either even though Holmes referred to the case in three letters in 1927.

For his part Brandeis voted with Holmes in the majority to allow the State of Virginia to surgically sterilize Carrie Buck against her will. About a year later, Brandeis would cite Buck v. Bell affirmatively in his dissent in Olmstead v. United States. Brandeis cited the case in support of an argument for expansive state power, asserting the "general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which, 'a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.' "

Buck v. Bell would later be cited affirmatively in Nuremberg, Germany:

Karl Brandt was the chief Nazi medical officer; he was also Adolf Hitler's personal physician. Brandt's attorney introduced documents quoting extensively from the eugenics literature. He cited Harry Laughlin's 1914 proposal calling for the sterilization of fifteen million Americans, and also quoted a translation of the Buck opinion from a German text on eugenics. Other Nuremberg defendants also cited Buck, and a translation of the Holmes opinion appeared again as a defense example in the exhibit "Race Protection Laws of Other Countries."

See also:

• "Three Generations of a Hackneyed Apologia for Censorship Are Enough" on the Popehat blog regarding Holmes' majority opinion in Schenck vs. United States.
• A collection of primary source material for Buck v. Bell can be found here
• "Israel's Uncomfortable History of Racist Engineering" by Seth J. Frantzman in the Forward
• "History, Eugenics, And The Jews" by John Glad in the Jewish Press

Labels: eugenics, history, law, Oliver Wendell Holmes, Zionism