The Bourgeois Virtues: Ethics for an Age of Commerce

402 chapter 37sin. You cannot get more systematically institutionalized than the UnitedStates Supreme Court, 1902–1932, or for that matter the Seventh Circuit Courtof Appeals, 1981–present.I mean the terms “sin” and “evil,” you understand, in their technicalsenses. Justice Holmes is always amusing to read, as, for example, in Buck v.Bell, 274 U.S., 200, 207 [1927]. And Judge Posner and I go back a long way,agreeing on many points of economics, and are on distantly friendly terms.I learned Latin as an adult partly because I was so impressed that Dick, whowas a colleague from 1969 at the University of Chicago, had as an adultlearned Greek. In a brave and dutiful spirit similar to Posner’s in learningGreek, Holmes explained to Frederick Pollock why at age seventy-eight hewas reading Machiavelli: “I don’t remember that I ever read Machiavelli’sPrince [a surprising confession in one so attached to a Machiavellian theoryof society]—and I think of the Day of Judgment. There are a good manyworse ignorances than that, that ought to be closed up.” 32 Holmes learnedto ride a bicycle at age fifty-four. 33It’s merely that in their legal theories, though not always in their lives, oreven always in their legal judgments, my father’s hero, the Yankee fromOlympus, and my distantly friendly acquaintance, Dick Posner, are not advocatingvirtues. Associate Justice Holmes declared in the Buck v. Bell opinionof 1927 that “it is better for all the world, if instead of waiting to executedegenerate offspring for crime, or to let them starve for their imbecility, societycan prevent those who are manifestly unfit from continuing their kind.The principle that sustains compulsory vaccination is broad enough to covercutting the Fallopian tubes. Three generations of imbeciles are enough.”So sterilization laws remained on the books another fifty years in thirtythreestates, with over 60,000 operations performed. 34 The United States, bythe way, was not the worst offender, even excepting Germany. Sweden sterilized63,000 people 1935–1975, tiny Norway 40,000. 35 The legal theory,backed by the best science at the time, is that people like Carrie Buck—who,incidentally, was not promiscuous but was raped by the nephew of her fosterparents and was not feebleminded but poor—should be prevented fromdamaging other people in their offspring. It is a utilitarian argument. Peopleare not to be treated as ends but as means. Carrie Buck is to be used forthe putative good of the community.Posner’s theory is similar, namely, that the law, the police, the prisons,with the judges of the Seventh Circuit Court of Appeals, are to enforce pru-