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71 Iowa L. Rev. 833 (1985-1986)
Oliver Wendell Holmes as a Eugenic Reformer: Rhetoric in the Writing of Constitutional Law

handle is hein.journals/ilr71 and id is 845 raw text is: Oliver Wendell Holmes as a Eugenic Reformer: Rhetoric in the Writing of Constitutional Law Mary L. Dudziak* 1. Introduction The potentially ideological character of the act of judging has con- cerned courts and their critics throughout American constitutional history.I One form in which this problem has manifested itself is in debates over judicial activism and judicial restraint.2 Among the contemporary arsenal of arguments against judicial activism, a consistent theme is the notion that activist judges engage in particularly value-laden judging.3 To in- sulate constitutional principles from the policy choices of individual judges, contemporary advocates of judicial restraint generally urge adherence to a reified constitutional text, and the original intention of its framers4 * Ph.D. Candidate in American Studies, Yale University. B.A. 1978, University of California, Berkeley; J.D. 1984, Yale University. I would like to express my apprecia- tion to the many friends and colleagues who have contributed to this Article by taking the time to discuss it with me over the past several months. I am especially grateful to Bill Buss, Davison Douglas, Jeff Powell, Adolph Reed, Ian Shapiro, and Robert Strassfeld for their helpful comments and criticism on earlier drafts of this manuscript. Special thanks go to Robert Cover who supervised my early work on this topic as a paper for his Myth, Law, and History seminar at Yale Law School and who has been a source of continuing encouragement. I am also grateful to the ever-patient and resourceful staff of the Yale Law Library for help in tracking down elusive sources. 1. See, e.g., G. GUNTHER, JOHN MARSHALL'S DEFENSE OF McCulloch v. Maryland (1969); D. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS (1978); A. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH 1887-1895 (1976); Radio Address by President Franklin Roosevelt, Mar. 9, 1937, quoted in G. GUNTHER, CONSTITUTIONAL LAW 129-30 (11th ed. 1985); Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959); R. BERGER, GOVERN- MENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); Kairys, Legal Reasoning, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 11-17 (D. Kairys ed. 1982). 2. See generally Mason, Judicial Activism: Old and New, 55 VA. L. REV. 385 (1969). 3. See R. BERGER, supra note 1, at 417; Bork, Neutral Principles and Some First Amend- ment Problems, 47 IND. L.J. 1, 8-11 (1971); Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Educ., 8 HARV. J.L. & PUB. POL'Y 399, 399 (1985); Lee, Preserving Separation of Powers: A Reection ofJudicial Legislation Through the Fundamental Rights Doctrine, 25 ARIZ. L. REV. 805, 805-13 (1983). 4. SeeR. BERGER, supra note 1, at 363-72; Bork, supra note 3, at 8-11; Graglia, The Constitution, Community and Liberty, 8 HARV. J.L. & PUB. POL'Y 291-97 (1985); Lee, supra note 3, at 811-13; Reynolds, Rehewing the American Constitutional Heritage, 8 HARV. J.L. & PUB. POL'Y 225, 225-37 (1985); see also Epstein, The Pitfalls of Interpretation, 7 HARV. J.L. & PUB. POL'Y 101, 107 (1984) (arguing that ambiguities in constitutional and statutory texts can be resolved through reference to general principles of implication embodied in the text as a whole or in the body of law of which it is a part).

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