When Real Judicial Conservatives Attack [Dover ID opinion]

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:

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.

Science converges upon an increasingly accurate description of the universe. Whatever its real limitations, there seems to be nothing better for this purpose

The increasingly converging accurate description of the universe is, as far as I know, not a completely quantifiable entity in itself yet. Furthermore, we still have quite a ways to go in understanding in how it all ties together. (Unified field?) From what I understand (just hearsay), no matter how many times they are on the precipice the rug is yanked out and some scientists in the physics field are throwing in the towel and are certain we can never have a UFT because the vary nature of that which is under scientific observation keeps changing it's reality.

That keeps me asking more questions. In fact, until science can use it's own methods to better facilitate human communication (an evolving but neglected phenomenon, yes?) and convey it's higher understanding to the unwashed masses, some of us will humbly continue to do so, and hopefully without fear of retribution

I appreciate your respectful, level-headed statements. You allow more latitude in this area of debate for us liberal arts types than I have seen from some.

I also leave open the idea that social phenomena and forces such as Hegel's dialectic might be tied to evolution. Some scholars believe social evolution and forces changing the nature of the human psyche through time, such as technology, might speed up to such a rapid rate that they change mechanisms altogether and produce a new "way" of delivering the synthesis. Might the foundations of science also change in how they are converging to affect human constructed conclusions? Might the way science is understood change as humans change? Would a sea-change be out f the question? If so, why? Does the observer matter, or have I missed something on the explantion to the layman regarding some aspects of particle theory?

Sorry to ramble and to pose seemingly esoteric questions, but I have sought to reconcile questions concerning God, meaning and science as long as I can remember a concious thought. I still am unsatisfied with what seems to be a personal inablity to grasp a seemingly simple scientific school of thought which leans toward having it all figured out one day. It leaves me frustrated and unconvinced.

Interesting article on the Blaine Amendment:

http://falr.unc.edu/volume2-1/McAfee.pdf

The Blaine Amendment included a lot of partisan gamesmanship. The Democrats controlled the U.S. House at the time, and were in those days the states rights party. The Democrat House passed the Blaine Amendment only after knocking out the provision that Congress would have the authority to enforce it. This was because they opposed federal control of education and feared a future Republican congress might use that provision to impose federal standards. When the proposal reached the Republican Senate, the congressional enforcement clause was restored. However, fear then erupted among Republicans that Catholics might be able to make the case that the Blaine Amendment prohibited Bible reading in the public schools. Such reading was commonplace at the time, and consisted of the Protestant King James version in most jurisdictions. So the Republicans added a provision explicitly protecting Bible reading in the schools. In the end, the Blaine Amendment failed in the Senate on a party line vote by falling short of the required two-thirds majority for passage. Republicans voted for it only after protecting Protestant Bible reading. Every Democrat in the Senate voted "no", fearing any federal intrusion into education at all, even if Bible reading was protected.

There's no indication that any member of either party was interested in secularizing the schools. Not then, and certainly not during the earlier 14th Amendment debate.

Most of John Bingham's quotes alleging that the 14th incorporates the entire Bill of Rights against the states came after the fact, similar to incidents in more recent history where proponents of civil rights laws claim after passage (though not before) that the bill requires affirmative action programs, forced busing, or quotas. During an 1871 debate, when Bingham made such a claim, a congressman named Storm from Pennsylvania responded:

"Sir, if the views now announced by gentlemen on the other side of the House had then [during debates on the Fourteenth Amendment] been promulgated, that amendment would never have been ratified. If the monstrous doctrine now set up as resulting from the provisions of that Fourteenth Amendment had then been hinted at, that amendment would have received an emphatic rejection at the hands of the people. [. Cong. Globe , 42d Cong., 1st Sess., app. at 84 (1871).]"

Even at that, I don't think Bingham was being dishonest. He was just speaking in generalities because the 14th did indeed incorporate SOME of the Bill of Rights, such as the due process protections, etc.

"Dawkins' point - that small changes have linear effects on fitness and therefore are equally likely to be positive or negative - is simple math. You did learn calculus training for that 'high-paying engineering' job, right? (It doesn't involve driving a big yellow truck?) Well, consider fitness a function you've expanded as a power series. Truncate at the first (linear) term. Now make a random small change in the independent variable. What are the chances fitness will increase?"

No, my truck isn't yellow. 8^)

The information contained in the genome is discrete rather than continuous, so a power series does not apply.

As in DNA, the information in a book consists of a sequence of discrete "characters." Suppose one of them is changed at random. What is the probability that the information content of the book will benefit from such a change? And what is the probability that it will be harmed?

The chances of harm are obviously far greater than the chances of benefit -- unless the characters in the book contained little or no information to start with.

By the way, I scored in the top 1 percent on the math section of the Graduate Records Exam. That puts me in the top 1% of engineers applying for graduate school. I don't like to brag, but when my intelligence is attacked (not so much by you, but by others on this thread) I feel I have the right to set the record straight. Maybe I should post my GRE scores on my website.

Now I need to get back to work. My truck is double-parked.

"As an engineer, you should be capable of understanding the difference between DNA and a book. The kind of changes that evolution selects are incremental. Think in terms of incrementing or decrementing a parameter, rather than changing the spelling of a word."

As an engineer, I know that every engineering design has parameters, but not all designs have the same parameters, and you can't convert any design to any other design by simply varying the parameters. You can't take a Ford car design and simply adjust the parameters to get a Toyota. And you certainly can't take a toaster design and adjust the parameters to get an F-18 or the Brooklyn Bridge.

Adjusting the parameters is analogous to micro-evolution. Changing the design is analogous to macro-evolution.

The people who actually wrote the Amendment, including John Bingham, were crystal clear that they intended the Amendment to apply the Bill of Rights to the states.

I find it hard to believe you've done serious research into this and can conclude that those who wrote the Amendment were "crystal clear" in intending to make the first 8 amendments to the Constitution applicable against the states...much less conclude that others in Congress and the various state legislatures understood that that was the intent...at very best, its quite unclear what even Bingham himself believed

You state that Fairman and Berger had an interest in slanting their findings so as to reach a conclusion that the 14th Amendment was not understood to incorporate the Bill of Rights. I don't know your basis for that opinion...Fairman's article (unlike those of some of his detractors like Michael Curtis and Akhil Amar) is almost completely based on the documentary history of the 14th Amendment.

One fact that I would think would be pretty persuasive to anyone with an open mind on this subject is that Fairman, in the pages in his article he devoted to covering the debates in the all of the various state legislature debates over the 14th Amendment, found not a single reference to suggest that anyone in those state legislatures believed that the 14th Amendment was to make the BOR applicable to the states. We are supposed to believe that (at least a significant number of...presumably most if, as you say, the Amendment's purpose was "crystal clear") state legislators were ratifying such a monumental transformation of the federalist American system...a transformation that would have made every state law subject to the federal courts' review and, indeed, resulted in many state laws being rendered unconstitutional...and yet, no one even discussed this in any state ratifying debate?

Ridiculous

Making the entire Bill of Rights applicable against the states was a revolutionary change. Whatever one's position might be on the merits of such a proposal, it surely would have triggered a monumental debate. The ratification battles in the state legislatures would have been littered with speeches, either pro or (especially) con, on this subject.

The Blaine Amendment was the result of a wave of anti-Catholicism. Some Protestants didn't want their tax dollars to aid the growing number of Catholic parochial schools. Even so, the amendment failed to pass the Senate, even after a provision protecting Bible reading in the public schools was added. The vote in the Senate was straight down party lines, with the Democrats voting "no" because they opposed any federal interference at all in education.

You do baffle with BS, or hope to. Science in science class. Just get that. You may think there are better answers somewhere else. Not for the purposes of science class.

Were the kudos for flying above the Dawkins attack fray and being civil a little premature? "Science in science class, science in science class." Sorta sounds like a myopic parrot routine rivaling the lefties chanting slogans on campus.

Archimedes started out modeling the behavior of levers and screws. Now we model the orbital trajectories of space probes and the quantum tunneling behaviors of electrons.

If we're talking Greeks, Socrates let us know that ultimate wisdom lie in the acceptance of how little one actually knew in the bigger picture. Then Descartes proved one thing to himself though impressions and the senses, which was the only provable reality was that of his own existence. Then masters like Max Planck came along and got us to question what was really "there?" on a scientific level.

So your example is incredible, granted; there will be many more incredible moments to come as the universe unfolds new secrets ad infintum.-still waiting for a little insight as to when that unified field theory is due.

I have never stated that science shouldn't only be taught in science class as far as my own viewpoint was concerned. Find where I did. While I would love to see it stir the pot these days just for fun, I don't give a s**t if people considering the nature of realities and philosophy and metaphysics are only meeting in the (Sacred Zone) of the science class as a compliment to the subject matter, or in the basement of the Acme Rubber Chicken company as long as they are not dissuaded by the shame of the Insititution to do so. God, I would have never been thinking of this as such an issue three or four days ago the way I am now.

Here's one thing for you to just get: Methinks this thing is going to backfire on Dawkins and the moooovement, big time. He, and the press leaning his way, seems to get more shrill as I discover the diatribes. Much emotion, many straw-men and indeed much selective perception.

Some of you guys are coming across as gulag types and that is a bad PR long term position. To some rational minds, whether you like us identifying ourselves that way or not, you can sort of mirror Pat Robertson at times.

While my ability to comprehend all things grand does not approach yours, I do get one thing for certian, the only permanance is in change. That's both a philosophical observation and evolution at its finest. In the end this will all come around in a different form and there will be a new synthesis with new understandings and science could get turned on its head like it has in the past. The Great Brain Trust is in for rough times if it internalizes this latest court win too greatly and continues to accumulate hubris in its quest as the monolithic arbiter of truth without leaving more room for open minds-such as the great Darwin himself, pulling an amazing explanation of the species while in a sea of skepticism-and by minimizing all things not science as anti-science. It's ridiculous!

BTW Where are the breakthroughs of religion, of philosophy?

A few: Victor Frankel's, "Man's Search for Meaning"

The life and influence of Mahatma Ghandi on mankind.

Do you have a reference to the ACLU opposing teaching Christianity in a comparative religions course?

Fair question, and I came up with a snip of a legal brief of the current position the nobel little outfit holds:

doctrines and are, therefore, unconstitutional. Of course, nothing prevents a school from teaching about various creation-of-the- world beliefs in a comparative religion course, which would be constitutional as long as the instruction imparts information about different religious traditions without promoting any religion.

My obvious direct answer is no, I do not. But I would also point out the ACLU has used an incremental MO to achieve its ends since its inception. Would you completely disagree with that characterization?

My original post said "If the ACLU has their way, (comparative religion) courses will not be allowed either. Would you also say that is completely off the table for these people given their backdoor agenda and increasing boldness?

They said it explicitly, numerous times. I've gone to the primary documents and read them for myself. Before I did that, I too was skeptical of incorporation and bought into the arguments of Berger and Fairman. But when I actually read the primary documents myself, when I saw what they said, I could see that Berger and Fairman were distorting the truth, and Curtis more or less had it right.

much less conclude that others in Congress and the various state legislatures understood that that was the intent...at very best, its quite unclear what even Bingham himself believed

It is quite clear. Go read the documents.

It's based on quotations ripped out of context. I looked them up for myself. As for Michael Curtis, he also bases his book, "No State Shall Abridge" on documentary evidence. At first I did not believe him, but I went up and looked up his citations. Have you yourself gone to the primary sources, or are you just relying on articles by others?

That's because he overlooked them or distorted them.

We are supposed to believe that (at least a significant number of...presumably most if, as you say, the Amendment's purpose was "crystal clear") state legislators were ratifying such a monumental transformation of the federalist American system...a transformation that would have made every state law subject to the federal courts' review and, indeed, resulted in many state laws being rendered unconstitutional...and yet, no one even discussed this in any state ratifying debate?

They did discuss it, Curtis documents it, and I personally verified it at the Columbia University Library.

Were the kudos for flying above the Dawkins attack fray and being civil a little premature?

Was I not supposed to notice?

"Science in science class, science in science class." Sorta sounds like a myopic parrot routine rivaling the lefties chanting slogans on campus.

Almost an acknowledgement. Almost a display of integrity. Well, I exaggerate in the latter instance.

Yes, I repeatedly make a point because 1) you were and are wrong on it and, 2) you dance and dodge. You have nothing to put in science class. Do some research, teach us something new, then get back to me.

If we're talking Greeks, Socrates let us know that ultimate wisdom lie in the acceptance of how little one actually knew in the bigger picture.

Who's talking "Greeks?" Greek is a nationality. I was talking Archimedes, father of the law of the lever and the science of statics. A scientist, in other words.

I have never stated that science shouldn't only be taught in science class as far as my own viewpoint was concerned.

You have got really lost here. If someone wants to read science outside of science class, fine and dandy. Wouldn't hurt you to try it, for example.

But please feel free to fire back another 10 paragraphs of blah blah blah acknowledging nothing and obfuscating everything.

It's just too hard to believe that the states would have ratified the 14th Amendment had they thought it would impose the Establishment Clause on them, particularly a modern secularist version of it.

Argument from incredulity, but you're right about the modern secularist part. The modern interpretation of the establishment clause is at odds with the framers, I do agree. The states ratifying the 14th Amendment did understand they were applying the Bill or Rights, as understood at the time, to themselves. That would include the contemporary understanding of the establishment clause, which I would like to see restored. I very much oppose the Lemon test and the "wall of separation" interpretation. This, however, is a different question from incorporation.

Bingham alternated between claiming the 14th would impose the Bill of Rights on the states and assuring reluctant colleagues that the states would still retain all their traditional powers under his amendment.

In the mind of Bingham and his fellow Republicans, these two positions were perfectly consistent. They believed that the Constitution ALREADY bound the states to the Bill of Rights. The 14th Amendment was necessary, in their minds, because the states were violating them and the Constitution up until then provided no enforcement mechanism. In their mind, the main purpose of the 14th A was to empower Congress to provide this enforcement.

It can and is both, because neither he nor the Republicans believed states had the power to violate the Bill of Rights even without the 14th Amendment. As I stated before, for them the issue was enforcement. They wanted explicit enforcement power.

The best way to judge this is to look at what Congress itself did, as well as what the states did, concurrent with the amendment.

I disagree. The best way to judge it is to see what Congressmen and state legislators thought they were ratifying.

The real issue with the Blaine Amendment is that the states, three-fourths of whom had ratified the 14th, didn't seem to behave as if that amendment had imposed secularism upon them.

The Blaine Amendment didn't even make it to the states. Congress rejected it. Democrats were in control of Congress in 1871. but republicans were in control in 1868. Democrats were much more in favor of States Rights than Republicans. Hence that the Blaine Amendment didn't pass in 1871 says NOTHING about whether it would have passed in 1868, nor does it tell us anything about the intentions of those who voted on the 14th Amendment in 1868.

There was no rush in any of those states to sever their ties to religion.

No state had an established religion at the time. I agree, no one wanted the current interpretation of the establishment clause. However, there is no evidence that those who supported the 14th A were against binding the states to the establishment clause as understood at the time.

Not to mention the problems with incorporating the Establishment Clause in the first place.

What problems?

Recognizing the existence of God isn't the establishment of a religion.

I agree, but that's not the issue.

But please feel free to fire back another 10 paragraphs of blah blah blah acknowledging nothing and obfuscating everything.

Thanks for the gracious invite, indulge me if you can since I would like to learn:

You have got really lost here. If someone wants to read science outside of science class, fine and dandy. Wouldn't hurt you to try it, for example

I don't think you are really being intellectually honest here or either I lost you in my long-windedness and you missed some of the references I made to science and posed questions in simple black-and-white. Speaking of dancing, I asked you three times over the course of this thread when science would present us with the HOLY GRAIL promised by so many and referred to here:

The term unified field theory was coined by Einstein, who was attempting to prove that electromagnetism and gravity were different manifestations of a single fundamental field. When quantum theory entered the picture, the puzzle became more complex. The theory of relativity explains the nature and behavior of all phenomena on the macroscopic level (things that are visible to the naked eye); quantum theory explains the nature and behavior of all phenomena on the microscopic (atomic and subatomic) level. Perplexingly, however (science is perplexed here? hmm...), the two theories are incompatible. Unconvinced that nature would prescribe totally different modes of behavior for phenomena that were simply scaled differently, Einstein sought a theory that would reconcile the two apparently irreconcilable theories that form the basis of modern physics.

Am I behind the times? Did I miss the announcement?

I know I sound like a dumb-ass hick, but I also read Archimedes in about 4th grade-boorrring. I'll take Aristotle for a greater understanding of the world. I think I had s**t in the tub a few years earlier as a lad and didn't think an observation and understanding of displacement took a lotta brains. I also referenced Planck, not through an oracle, not through a google, and had previously read (shock!) parts of his work during discussions over the nature of reality with people I considered bright. You say I have nothing to put in science class (don't really need to) and I say you have nothing to put in the understanding of reality or man's search for meaning. Doesn't necessarily make anyone superior, or am I mistaken? I don't appreciate the contempt Dawkins and his ilk display towards those whose life experience and education might have them understandthings in a different light.

You have got really lost here

And my assertion that you might be lost in a different sense is just as valid. No hard feelings I hope.

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