When Real Judicial Conservatives Attack [Dover ID opinion]

The UCSD Guardian ^ | 09 January 2005 | Hanna Camp

[PatrickHenry]

If there’s anything to be learned from the intelligent design debate, it’s that branding “activist judges” is the hobby of bitter losers.

For those who care about the fight over evolution in biology classrooms, Christmas came five days early when the Kitzmiller v. Dover Area School District ruling was handed down. In his decision, Judge John E. Jones III ruled that not only is the theory of intelligent design religion poorly dressed in science language, teaching it in class is an outright violation of the First Amendment.

The ruling was a concise and devastating demonstration of how law, precedent and evidence can come together to drive complete nonsense out of the courtroom. But if the aftermath of the event proves anything, it proves that nine times out of 10, if someone accuses a judge of being an “activist,” it is because he disagrees with the ruling and wants to make it clear to like-minded followers that they only lost because the liberals are keeping them down. Gratuitous overuse has, in just a few short years, turned the phrase “judicial activism” from a description of an actual problem in the legal system into a catch-all keyword for any ruling that social conservatives dislike.

During the months between the initial suit and the final decision, a high-powered law firm from Chicago volunteered some of its best to represent the plaintiffs pro bono, defenders of evolution and intelligent design mobilized, and few people really cared other than court watchers, biology nerds and a suspicious number of creationist groups. The trial went well for the plaintiffs: Their witnesses and evidence were presented expertly and professionally, and it never hurts when at least two of the witnesses for the defense are caught perjuring themselves in their depositions. Advocates for teaching actual science in school science classes were fairly confident that Jones was going to rule in their favor.

When it came, the ruling was significant enough to earn a slightly wider audience than the aforementioned court watchers, biology nerds and creationists. What drew interest from newcomers was not the minutiae of the trial, but the scope of Jones’ ruling and the scorn for the Dover School Board’s actions that practically radiated off the pages. He ruled both that intelligent design was a religious idea, and that teaching it in a science class was an unconstitutional establishment of religion by the state. He didn’t stop there, however.

“It is ironic,” he wrote, “that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the intelligent design policy.”

Such harsh language might provoke some sympathy for intelligent design advocates, if they hadn’t immediately demonstrated how much they deserved it by responding — not with scientific arguments for intelligent design or legal precedent to contradict Jones’ ruling — but with ridiculous name-calling. The Discovery Institute, the leading center of ID advocacy, referred to Jones as “an activist judge with delusions of grandeur.” Bill O’Reilly also brought out the “A” word on his show. Richard Land, spokesman for the Southern Baptist Convention’s Ethics and Religious Liberty Commission and noted drama queen, declared him the poster child for “a half-century secularist reign of terror.” The American Family Association, having apparently read a different ruling than the rest of America, insisted that judges were so eager to keep God out of schools that they would throw out even scientific evidence for Him. Funny how so many creationist groups seemed to have missed the memo that intelligent design isn’t supposed to be about God at all.

It was depressingly predictable that the intelligent design crowd would saturate the Internet with cries of judicial activism regardless of the actual legal soundness of the ruling. In only a few years, intellectually lazy political leaders have morphed an honest problem in the judiciary that deserves serious debate into shorthand for social conservatism’s flavor of the week. The phrase has been spread around so much and applied to so many people that it only has meaning within the context of someone’s rant. It is the politico-speak equivalent of “dude.”

Only when one learns that Jones was appointed by George W. Bush and had conservative backers that included the likes of Tom Ridge and Rick Santorum can one appreciate how indiscriminately the term is thrown around. Jones is demonstrably a judicial conservative. In fact, he’s the kind of strict constructionist that social conservatives claim to want on the bench. Their mistake is in assuming that the law and their ideology must necessarily be the same thing.

In the end, no one could defend Jones better than he did himself. He saw the breathless accusations of judicial activism coming a mile away, and refuted them within the text of the ruling. In his conclusion he wrote:

“Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on intelligent design, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop, which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”

Jones knew his name would be dragged through the mud and issued the correct ruling anyway. One can only hope that the utter childishness of the intelligent design response will alienate even more sensible people, and that the phrase “judicial activism” will from now on be used only by those who know what they’re talking about. No bets on the latter.

[bobdsmith]

What is the likelihood that a male and female of some 'new' species would be born at approximately the same time, in the same general location and with the exact same mutation; survive to adulthood; find each other; successfully breed and raise young to adulthood?

For pete's sake how many times has this argument come up??

[donh]

So, now we have judges proclaiming from their judicial thrones that Darwin must be taught in all the public schools,

Could you cite the judicial ruling that Darwin must be taught in all public schools?

but that no other theory, no argument that questions Darwin, no competing hypotheses, will be permitted. Our children must be protected from hearing anything at all but all Darwin all the time.

And what about those gravity bigots? That's all we ever hear all the time in physics classes, "gravity this" and "gravity that". I say equal time for the Earth-Sucks theory. Teach the controversy.

[donh]

So, now we have judges proclaiming from their judicial thrones that Darwin must be taught in all the public schools,

Could you cite the judicial ruling that Darwin must be taught in all public schools?

but that no other theory, no argument that questions Darwin, no competing hypotheses, will be permitted. Our children must be protected from hearing anything at all but all Darwin all the time.

And what about those gravity bigots? That's all we ever hear all the time in physics classes, "gravity this" and "gravity that". I say equal time for the Earth-Sucks theory. Teach the controversy.

[mlc9852]

"the evidence does not permit of an interpretation tht the common ancestor could actually have been the common forerunner."

Why not?

[Coyoteman]

What makes him wrong is the extreme scientific improbability of his general theory.

Its only "improbable" if you already have your mind made up in a different direction.

Otherwise, there is a heap of evidence supporting the theory. There is far more evidence now than when Darwin published it. DNA was unknown, and so far the genome projects are all supporting the theory of evolution, making it more probable, not less probable.

[puroresu]

#####The ambiguous 'privileges or immunities' did nothing to ensure any statute.#####

That's true. It's called leaving things to the legislative branch, which we used to do before the judicial oligarchy arose.


#####Implanting the verbiage of 1866 Civil Rights Act into the 14th Amendment would have.#####

It would have implanted that particular verbiage, but Congress obviously wanted the latitude for itself to make adjustments as needed.

#####Further, are you saying that they intended the 14th to be a 'back door' through which they could jam any old statue they pleased without requiring it to go through the amendment process? And you support this idea? And question my conservative nature?#####

Not just any old statute they pleased. It would have to be germane to the provisions of the 14th Amendment we've been discussing. Read the 14th. It says:

>>>>>The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.<<<<<

You may notice that Congress passed a lot of such legislation in that era to protect the privileges & immunities of, and to guarantee due process to, the freed slaves. They didn't pass a single piece of legislation to, for example, ban Bible readings in state schools, or remove crosses from city seals, etc. Obviously such legislation never crossed their mind under the 14th Amendment.


#####You are saying that announcing that the proposed amendment would explicitly extend enforcement of the Bill of Rights to include the states during the actual consideration of the amendment wouldn't have clued them in that it might cover the 1st Amendment?#####

Context, man, context! :-)

Bingham's statement needs to be considered in context. Read the section on the Doctrine of Incorporation in the link I provided to get an understanding of what Bingham meant.

[connectthedots]

For pete's sake how many times has this argument come up??

Don't know, but i can tell you haow many times is has been answered with anything resembling a rational response; zero!!

Maybe you can be the first.

[mlc9852]

Well, see, the OT is the rule of law. After Jesus came, he did away with the OT law.

[Doctor Stochastic]

Not only not improbably, tampoco. However any system undergoing inexact replication will be subject to Darwinian evolution.

[b_sharp]

We are a different species than the other apes. It may or may not be possible to successfully interbreed, but that uncertainty is part of the definition of speciation.

"In other words, the suggestion that man descended from apes is nothing more than speculation; isn't it.

Not at all. We determine that chimps and humans are in (or should be in) the same genus using the same criteria used to determine the relationship of Jaguars (Panthera onca), Leopards (Panthera pardus) and Lions(Panthera leo).

As far a human descent from apes; if we are cousins to chimps, as our morphology and genotype say we are, and chimps are apes, then we *are* apes. If we are apes then our near ancestors are also apes.

"BTW, why do evolutionists assume that man descended from apes? If evolution is true, isn't it possible that apes descended from man?

Our genome tells us how long ago we diverged from the common ancestor of chimps and us. The fossils found that go back close to that time show a change from chimp-like to human, therefore we evolved from chimp-like ancestors, not the other way around. Chimps also evolved from that chimp-like ancestor. If chimps evolved from us we would find fossils showing a change from human to chimp.

[jennyp]

However, the one note you keep hearing on these threads is that Darwin is science and anything opposed to Darwin is religion or superstition. I called that kind of attitude "religious," because although it pretends otherwise it really doesn't permit anyone to examine the evidence. Perhaps a better name for it would be superstition, since Darwinism strikes me as a particularly credulous and irrational sort of religion.

But what other conclusion is possible when all the prominent ID'ers have praised ID multiple times for its utility in sweeping away the curse of godless materialism from society so that society might be saved?

Sheesh! It makes no sense to argue the point with us. You need to take it up with the leading lights of the ID movement. If only they'd just clam up about their real motives. But nooooo. They had to go and proclaim their religious agendas for ID for all to see.

[puroresu]

####It's the Civil Rights Act of 1871, not 1866.####


It's both. One before, one after! :-)

[shuckmaster]

Their primordial soup creation story is bull.

So, why do lying creationists keep repeating it?

[Antonello]

You do understand the ramifications of "interpreting" the Equal Protection Clause to give women the vote, don't you? Once upon a time, in a less judicially aggressive era, people did so understand. That's why it took a CONSTITUTIONAL AMENDMENT some fifty years after the 14th was ratified to establish a constitutional guarantee of female suffrage.

Please lay out what ramifications you are talking about.

[donh]

My question is very reasonable. As one can readily see, the likelihood of such a sequence is so remote as to be virtually impossible? If it wasn't, you would have offered up a rational response. "Surely you are kidding?" does not cut it.

ok, you really weren't kidding: that's not how it works.

Only one mutational event in one individual is needed for a population to capture a useful mutation, and one successful mutational event does not create a new species which can't interbreed with the old species.

Speciation is an extremely gradual separation of two related populations, with accompanying extremely gradual attenuation of their capacity to interbreed. The picture you are operating on as to how speciation occurs is oversimplified to the point of distortion.

[bobdsmith]

Don't know, but i can tell you haow many times is has been answered with anything resembling a rational response; zero!!

I've seen it answered many times. Your argument assumes new species can only appear suddenly in one generation.

An analogy:

What is the likelihood that a male and female of some 'new' dog breed would be born at approximately the same time, in the same general location and with the exact same mutation; survive to adulthood; find each other; successfully breed and raise young to adulthood?

For example one day a wolf gave birth to a male poodle and by sheer coincidence another wolf nearby gave birth to a female poodle, and by even more sheer coincidence both those male and female poodles managed to find each other and mate. What's the chance of that? Well near zero of course, but then again this is nothing like how it happened - gradual steps, not sudden steps.

[jennyp]

Their eschatology, their vision of heaven on earth--free sex, live forever, no disease, no work--is as unattainable as it is undesirable.

Just, wow. Some of us love sex, life, health, & prosperity. Some people apparently don't.

[Doctor Stochastic]

Of course one cannot walk from New York to Chicago; any step leaves you within a fathom of your last position.

[shuckmaster]

And what about those gravity bigots? That's all we ever hear all the time in physics classes, "gravity this" and "gravity that". I say equal time for the Earth-Sucks theory. Teach the controversy.

You've got to admit that things were a lot better before they passed the law of gravity and we could all just float around freely.

[furball4paws]

The heart of the Puritans is still alive in Creationism.