Skip to comments.When Real Judicial Conservatives Attack [Dover ID opinion]
Posted on 01/09/2006 8:26:54 AM PST by PatrickHenry
If theres anything to be learned from the intelligent design debate, its 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 Boards 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 didnt 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 hadnt 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 OReilly also brought out the A word on his show. Richard Land, spokesman for the Southern Baptist Conventions 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 isnt 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 conservatisms 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 someones 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, hes 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 Boards 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 theyre talking about. No bets on the latter.
Judge John E. Jones III should be the next nominee for the U.S. Supreme Court.
Until evolutionists can demonstrate how a strand of DNA can self-assemble, survive in a hostile chemical environment, and purposelessly begin to reproduce and form the form the first living cell, I'd say the theory is baloney.
You'd say that, but that's because you're grossly ignorant. Clue for the clueless: The theory of evolution deals with the processes which cause living things to change as they reproduce. It has nothing whatsoever to do with how life may have originally formed, since however that may have happened, it was (obviously) a pre-evolutionary process.
Your whine is as pointless as saying that meteorology (the study of weather) is "baloney" until it is determined where the atmosphere came from. To any thinking person, it's obvious that the validity of meteorology doesn't depend in the least on how or when the atmosphere may have originated, since it only concerns itself with how the atmosphere behaves now that it's here.
And likewise for evolutionary biology with regards to the origins of life.
Nonetheless, if you're trying to claim that biologists have not made serious progress into understanding how DNA originated, you're very mistaken.
People need to learn to think for themselves and reject the "received knowledge" from evolutionists with their own stubborn belief system.
Actually, people need to learn something about a subject before they say stupid things about it out of ignorance. Evolutionary biology is not "received knowledge", it's based on over a century of research and vast mountains of independently cross-confirming lines of evidence, and consists of conclusions which have been validated and revalidated countless times, and have survived huge numbers of potential falsification attempts.
####Judge John E. Jones III should be the next nominee for the U.S. Supreme Court.####
Only if you want another Souter.
Maybe God just likes an exciting game.
You summed it up nicely. Thanks.
Can you prove humans descended from apes?
Why do you limit it to those two choices? As this case has amply demonstrated, science teachers and students expecting to get a real education in science have a big part in the decision to keep agenda driven theologists from forcing their own peculiar beliefs into science class.
There is. It's called the 14th amendment.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Wow, are *you* confused. No, that's not what the courts have ruled. They have ruled that schools can teach *about* religion, but can not *advocate* a religion in any way.
The present decision which the Darwinists are all celebrating is based on the principle that no Christianity is allowed in the schools at all, not even on the football field.
Second, the sharp distinction between religion and science is artificial. If God exists, then arbitrarily ruling out all discussion of that fact hardly contributes to teaching the truth.
Which God? And what did He do, and what does He want? And how can you be sure that one (or more) God(s) actually do exist? Therein lies the rub.
Religion and science have their separate areas, but Christianity traditionally believes that there can be no contradiction between true religion and true science.
Tell that to the rabidly anti-evolution creationists...
Darwinists, of course, although they will pretend otherwise, are basically atheists.
Thanks for sharing your stupidity with us. No, actually, the *majority* of American "Darwinists" are Christians.
I'm not talking about partial evolution within species, which is really not controversial. I'm talking about Darwin's General Theory of Evolution, which was his only real "contribution."
ROFL! There's no such thing as the "General Theory of Evolution". You're clearly confusing Einstein's General Theory of Relativity with biology.
The general theory is a hypothesis, not a proven fact, and frankly, the accumulation of evidence over 150 years argues persuasively that it is false.
LOL!!! Okay... Feel free to share this "accumualate evidence" with us, the stuff that the professional biologists have managed to "overlook" but which you're privy to, that contradicts the conclusions of 99+% of actual biologists. We'll wait.
Be sure that in your reply, you deal with the vast amount of evidence which instead points overwhelmingly to the reality of Darwinian evolution, such as this.
This should be fun -- I await your response.
The only way it can maintain itself is by striking what amounts to a kind of Muslim assertiveness. Darwinism must never be changed and never questioned. It must be taught to children in their formative years, and they must hear nothing to put it into question.
Do even you believe this crap that comes out of your brain? I'm serious -- I'd like an answer to that question, because I'd like to know how anyone could seriously believe such transparent nonsense. "Darwinism" is based on overwhelming evidence and research, has been "questioned" endlessly in science journals and in the public forum (feel free to do so yourself if you wish), has changed in many respects over the past 150 years as new evidence has come to light, etc. So do you actually believe this twaddle you post, or is it just done for some pointless rhetorical purpose?
Prof, I believe I saw a post in another thread where you endorsed vouchers (correct me if I'm wrong).
If you do support vouchers, do you consider them to be aid to the student or aid to the school?
It's all over except for a last round of loud wailing from the miserable dishonest losers who demonstrate their true morals by denigrating one of America's truly great conservative judges.
OK. Do you accept or reject the Nicene Creed?
Aid to the student.
This is *not* an accurate description of modern hypotheses of abiogenesis. Try to learn some science before you attempt to critique it.
But why can't anyone duplicate these chemical reactions in a lab?
For the same reason we can't reproduce the Hawaiian Islands in a lab. The required materials don't fit in a laboratory, and no one is willing to sit down and watch it unfold for a few million years.
Yeah...I think I may have heard of it.
What is interesting is that the due process clause of the Fourteenth Amendment is supposed to have incorporated the Bill of Rights against the states. Of course, the Supreme Court only discovered this in 1925 (and, in the case of the First Amendment in 1947)...reversing numerous decisions between the time the 14th Amendment was ratified in 1868 and 1925.
But, if the intent of the 14th Amendment was to so fundamentally alter the American system of federalism, it seems kind of cryptic to do so with the language..."no state shall deprive any person of life, liberty or property without due process of law"...no? I mean, why not something more clear...like, "the first 8 Amendments to this Constitution are hereby made applicable to the states"?
I think that if Courts are going to claim that an Amendment effected such a monumental transformation as having made every state and local law subject to the US Constitution's Bill of Rights, and, in doing so, are relying on such cryptic language...there should be some strong evidence that is what those that ratified the Amendment were trying to do...but, the opposite is true
Professor Charles Fairman wrote a Stanford Law Review article back in 1949 entitled "Does the Fourteenth Amendment Incorprate the Bill of Rights", in which he scrupulously analyzed the Congressional debates and the state ratifying conventions (a detailed analysis unrivaled since) and Professor Fairman concluded that there was a mountain of evidence in favor of the argument that those who ratified the 14th Amendment intended to make it applicable to the states...and he contrasted this "mountain of evidence" with "the few stones and pebbles that made up the theory that the 14th Amendment incorporated Amendments 1 to 8.
In the case of the Estalishment Clause, there is almost irrefutable proof that the 14th Amendment did not make it applicable to the states...specifically, the Blaine Amendment of 1875
7 years after the 14th Amendment was ratified...President Grant asks Congressman James Blaine to introduce a proposed amendment, Section 2 of which reads, in its entirety:
No state shall make any law respecting the establishment of religion or prohibiting the free exercise thereof
The Blaine Amendment (which would have been the 16th Amendment to the US Constitution passes the House but fails in the Senate. Senator Frelinghuysen of NJ, in introducing the amendment in the Senate states:
The [Blaine Amendment] very properly extends the prohibition of the first amendment of the Constitution to the States. Thus the [Blaine Amendment] prohibits the States, for the first time, from the establishment of religion, from prohibiting its free exercise, and from making any religious test a qualification to office.
Senator Eaton of Connecticut, in objecting to the Blaine Amendment states, on the Senate floor:
I am opposed to any State prohibiting the free exercise of any religion; and I do not require the Senate or the Congress of the United States to assist me in taking care of the State of Connecticut in that regard.
Senator Whyte agreed:
The first amendment to the Constitution prevents the establishment of religion by congressional enactment; it prohibits the interference of Congress with the free exercise thereof, and leaves the whole power for the propagation of it with the States exclusively; and so far as I am concerned I propose to leave it there also.
The Congressional record during the debates over the Blaine Amendment shows that not one member of Congress...the majority of whom were in either the Congress that passed the 14th Amendment or one of the state legislatures that ratified it...not a single one...mentioned that the Blaine Amendment was unnecessary...it seems that none of the Congressmen who ratified the 14th Amendment knew that they thereby incorporated the Establishment Clause against the states.
If those that ratified the same Amendment that the Court now tells us "incorporated" the First Amendment against the states...apparently had no intention of or knowledge that they had done so...
Exactly what authority do federal courts have to, on their own initiative, create a new meaning and application of the First Amendment...demonstrably contrary to the meaning and application as intended and understood by those who ratified the Constitution and its amendments?...
None...and 60 years of illegitimate federal interference pursuant to clearly bogus court rulings does not thereby change the Constitution
####Aid to the student.####
Glad to hear that. We agree.
I therefore assume you would not object to students using vouchers to attend a religious school?
ID is/was a sneaky underhanded attempt to force religion into science class by pretending that the Genesis creation story had nothing to do with religion.
Not at all.
Not really...notwithstanding the fiction created by the federal courts for the last 60 years...See my post at 71 to curiosity
You really have no clue as to the actual contents of the Theory of Evolution, do you?
The real issue is not whether ID is science or creationism disguised as science...the real issue is who decides what students are taught...local school boards or federal courts.
What goes in a school in Dover, PA is a purely local issue. The Establishment Clause of the US Constitution has been so perverted since the 1947 Everson case that most people do not know that it applies to Congress and the federal government only. It would matter not one bit if the Dover schools spent an entire semester teaching about birth of Jesus...that is a state and local issue...and the federal government has no authority here. Granted courts, since 1947, have pretended that the First Amendment applies to local schools, towns and states...but it does not....and that is an easily provable fact. Applying the Constitution's prohibition on federal establishment of religion to state and local issues is judicial activism in every sense of the phrase
Please clarify a couple of things for me...
Do you recognize the local people of Dover that brought this suit against the school board to be citizens of the United States? Do you recognize that the Dover School Board operates under authority of the Commonwealth of Pennsylvania's Board of Education? Do you recognize that the 14th Amendment to the U.S. Constitution was duly ratified and is a legal part of the Constitution?
The 14th Amendment specifically prohibits the states from abridging the Constitutional rights of the individual:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now are you saying that the 1st Amendment only protects the rights of some people, and others don't get to enjoy this protection?
Maybe - but more people believe "God did it" than believe evolution.
Ooops...should read Professor Fairman concluded that there was a mountain of evidence in favor of the argument that those who ratified the 14th Amendment
intended did not intend to make it applicable to the states...
Actually, the goals of the 14th Amendment appear to have been rather modest. The Equal Protection Clause didn't even give blacks or women the vote. It took additional constitutional amendments to achieve that. In the case of women, the amendment was added 50 years later.
The 14th's vagueness, however, has been a source of much of the left's abuse of judicial power. Basically, they've used the 14th to flip our system of government upside down. Instead of protecting the states and restraining the federal government, the Constitution, thanks to misinterpretation of the 14th Amendment, is now a federal bludgeon against the states.
Yes it does.
On this we agree! That's why Judge John E. Jones III deserves all the praise bestowed upon him for taking us decidedly in the right direction to keep agenda driven fanatics from subverting our childrens education!
This one is surely a candidate for "This is your brain on Creationism."
How many times do we have to repeat this until it sinks in? Science does not deal in proof. For that matter, "proof" is an unobtainable standard in the real word -- proofs are only possible in artificial realms like mathematics.
But if you want overwhelming evidence of man's common ancestry with apes, along multiple cross-confirming lines, see for example this. Of course, you've already *seen* a lot of that evidence, when you were pinged to this post. You even posted a short reply to it. Why do you now pretend that you aren't aware of it?
Actually, a fair reading of the opinion indicates that is was in fact an activist opinion.
Sometimes activisism can acheive the "correct" results, but it is always wrong.
Any ruling which includes an attack on a legislative body for being "activist" has a real problem -- because legislation can be activist. That is where you WANT activism. We elect people to represent us, and to enact laws and regulations reflecting what we would like to see.
This judge injected himself into the political process to protect us (the unwashed masses) from electing people who enacted stupid regulations (stupid defined by the benevolent dictatorship of the judiciary).
I would note that the people of Dover rose up and voted out of office the representatives on the board who supported ID. ID was going down, through the normal legislative process, and the judge short-circuited that process and disenfranchised a minority of people by telling them that THEIR opinions have no place in law.
The constitution does not forbid bad law, and has no clause making it unconstitutional for a school to teach bad science.
When it comes right down to it, the judge just made this another "separation of church and state" ruling -- and the 4th circuit court of appeals just pointed out that there is no separation of church and state.
ID is not a religion, and teaching ID in science is NOT establishing a religion, forcing anybody to believe in a religion, or providing preferential treatment to a specific religion -- because ID is NOT a religion. Roman Catholocism is a religion, Mormanism is a religion, Islam is a religion.
ID at its worst could be described as a belief arising out of a religious viewpoint. "Thou shalt not Murder" is not religion either, but it has as firm religious foundation, just as some say ID does.
It is about time that the supreme court ends this activist judicial philosophy of denying the people the right to laws that have a moral or religious basis, in the false guise of preventing the "establishment of religion".
IT doesn't matter whether you think ID should be taught as science or not. The judge's ruling was an activist anti-religion ruling, and should be overturned (it won't be, because the people have spoken, and the new school board won't spend another dime on this).
The correct thing for the anti-ID folks to do would have been to launch an education campaign in Dover, to teach the citizens so they would rise up and vote out the offending board members. That's how democracy works. Using the courts to acheive legislative solutions is the definition of activism.
I agree with you, most people believe evolution is a fact because they have been taught that it is. Every person has a responsibility to investigate for themselves and come with their own answer and personally I don't see a problem with simply stating that evolution is a theory and not a fact before discussing it is science class, what is the fear? Also I am a creationist and there is a distinct difference whether evolutionist believe it or not.
Thanks for the ping!
Quite true. Creationism believes a God created everything. ID believes a God or a God like surrogate created everything.
No, a fair reading of the opinion indicates that the judge ruled by applying the controlling, precedential law (which he, as a district judge, is required to do) to the facts as presented at trial. That isn't activism, that's his job.
Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced...'Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be...'What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?...Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.
There is no such thing as partial evolution. Either a species is evolving or it's not. If the species is evolving then, besides extinction, there is no cut off point that stops the process of replication, heritable difference, and natural selection from continuing.
Well, I have four kids; sorry to spoil your fantasy. I was merely following the Darwinian imperative to spam the environment with my genes.
This means, in evolutionary terms, that the Cult is as doomed as the dodo.
No, no, it's OK: Charles Darwin is continuing to fashion more evolutionists out of clay.
(Metaphorically, that is. Somewhere, a creationist scion is opening one of Mr. Darwin's books, and it's making sense to him. Unlike the origin of species, the propagation of wisdom does not depend on common descent.)
We didn't come from apes. And why do you bother replying to my posts?
No, but then that's not what the TOE says.
Well, that depends on how exactly one defines "apes".
If one means "any modern ape species", as creationists often mistakenly presume it does (as in when they mockingly say, "were you a chimp on your mother's side, or your father's side", etc.), then no, we did not descend from "apes".
If on the other hand one means, "a no longer extant species which would, under modern classifications, qualify as an 'ape' if it still lived today", then yes, the common ancestor of man and the other apes (we're *still* technically apes ourselves, actually) then yes, we descended from apes. The ape clade had already branched off from the monkey clade long before the first proto-human arose, although the "apes" at that time were quite different from the modern ones.
Or just a babbling fool!
And which one are you?
Your stubborn declarations notwithstanding, that is nonetheless what vast amounts of evidence clearly indicates. You can deal with that reality, or choose to cover your eyes and ignore it. Your choice.
And why do you bother replying to my posts?
Because a) I do not consider your education to be a lost cause quite yet, and b) your misinformation and misrepresentations still need to be corrected, lest any lurkers might make the mistake of presuming that you knew what you were talking about.
"Privileges and immunities" is a term with a long history in English law...used frequently in royal charters, grants, letters patents, etc. Basically, what is guaranteed was that, each state was bound to grant to citizens of other States traveling within its borders, the same civil rights which it granted to its own citizens. That is how it was used in several colonial state constitutions.
You'll note it appears in Article IV of the Constitution, an article that basically deals with matters of comity between the States like the "full faith and credit" clause
So, while the P&I clause of the 14th Amendment might be applicable if the town of Dover or the state of Pennsylvania had a law that prohibited citizens visting from other states from worshipping at a certain type of church open to Pennsylvania citizens...it has no application here