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When Real Judicial Conservatives Attack [Dover ID opinion]
The UCSD Guardian ^ | 09 January 2005 | Hanna Camp

Posted on 01/09/2006 8:26:54 AM PST by 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.

TOPICS: Culture/Society; Philosophy
KEYWORDS: childishiders; creationisminadress; crevolist; dover; evolution; idioticsorelosers
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To: Irontank

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.

81 posted on 01/09/2006 9:53:47 AM PST by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: knowledgeforfreedom

Yes it does.

82 posted on 01/09/2006 9:53:51 AM PST by mlc9852
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To: Cicero
True. It will take some really fine conservative justices to reverse 50 or 60 years of bad constitutional law. But it should and must be done.

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!

83 posted on 01/09/2006 9:54:26 AM PST by shuckmaster (An oak tree is an acorns way of making more acorns)
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To: Syncretic; PatrickHenry

This one is surely a candidate for "This is your brain on Creationism."

84 posted on 01/09/2006 9:55:42 AM PST by Chiapet
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To: mlc9852
Can you prove humans descended from apes?

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.

See also: Creationist Claim CA202: Evolution has not been, and cannot be, proved. .

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?

85 posted on 01/09/2006 9:56:20 AM PST by Ichneumon
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To: Chiapet

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.

86 posted on 01/09/2006 9:57:09 AM PST by CharlesWayneCT
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To: Elpasser

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.

87 posted on 01/09/2006 9:57:29 AM PST by ThisLittleLightofMine
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To: PatrickHenry

Thanks for the ping!

88 posted on 01/09/2006 9:59:32 AM PST by Alamo-Girl (Monthly is the best way to donate to Free Republic!)
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To: Madeleine Ward
"As I understand it, Creationism and ID are not the same.

Quite true. Creationism believes a God created everything. ID believes a God or a God like surrogate created everything.

89 posted on 01/09/2006 10:00:01 AM PST by b_sharp (Science adjusts theories to fit evidence, creationism distorts evidence to fit the Bible.)
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To: CharlesWayneCT
Actually, a fair reading of the opinion indicates that is was in fact an activist opinion.

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.

90 posted on 01/09/2006 10:00:12 AM PST by Chiapet
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To: Irontank
It's bull. John Bingham clearly meant the 14th to apply the Bill of Rights to the states.

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.

91 posted on 01/09/2006 10:00:34 AM PST by Right Wing Professor (Round and round the argument goes....)
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To: Cicero
I'm not talking about partial evolution within species, which is really not controversial.

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.

92 posted on 01/09/2006 10:00:43 AM PST by shuckmaster (An oak tree is an acorns way of making more acorns)
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To: Syncretic
One more thing about the Science/Materialism Cult before this thread dies: Its adherents have a low birth rate.

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.)

93 posted on 01/09/2006 10:01:17 AM PST by Physicist
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To: Ichneumon

We didn't come from apes. And why do you bother replying to my posts?

94 posted on 01/09/2006 10:01:44 AM PST by mlc9852
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To: knowledgeforfreedom; mlc9852
[Can you prove humans descended from apes?]

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.

95 posted on 01/09/2006 10:03:58 AM PST by Ichneumon
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To: Ichneumon; mlc9852

96 posted on 01/09/2006 10:04:23 AM PST by Junior (Identical fecal matter, alternate diurnal period)
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To: Syncretic
If you oppose the Cult, you reveal yourself to be an enemy of all thinking, of all technology, of all progress!

Or just a babbling fool!

97 posted on 01/09/2006 10:05:36 AM PST by shuckmaster (An oak tree is an acorns way of making more acorns)
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To: Junior

And which one are you?

98 posted on 01/09/2006 10:06:08 AM PST by mlc9852
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To: mlc9852
We didn't come from apes.

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.

99 posted on 01/09/2006 10:07:15 AM PST by Ichneumon
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To: Antonello
Incorporation is based, not on the P&I clause of the 14th Amendment, but rather on the due process clause. To be honest, reliance on the P&I clause might have been a more convincing argument for those who want to argue that the 14th Amendment incorporated the Bill of Rights...but its still not a good argument because (1) there is overwhelminbg evidence that the intent of the vast majority of those who ratfified the 14th Amendment was not to make the Bill of Rights applicable to the states (see my post at 71) and (2) "privileges and immunities" is a legal term of art.

"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 has no application here

100 posted on 01/09/2006 10:07:31 AM PST by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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