The Texas Tech Law Review recently published an article about evolution disclaimers, which contains some interesting arguments about the creationism/evolution controversy generally. Chad Edgington, Disclaiming Darwin Without Claiming Creation: The Constitutionality of Textbook Disclaimers And Their Mutually Beneficial Effect on Both Sides of the Origins Debate, 5 Tex. Tech L. Rev. 135 (2004). Edgington (whose article was published before the Cobb County decision) argues "not only...that disclaimers which call for a critical approach to evolution are constitutional, but that a liberal policy allowing for their placement in textbooks is the most satisfactory solution to controversy surrounding the teachings of origins." Id. at 138.
Edgington notes (rightly) that "[t]he actual motivation behind the equal-time' laws and the disclaimer provisions is the concern that the exclusive placement of evolution in the science classroom provides de facto religious instruction because students are taught that science has proven that their religious beliefs are fraudulent." Id. at 154. This, of course, is only one motivation: the other is the belief on the part of many people that their religion ought to actually be promulgated in public school classrooms, and that the separation of church and state impairs this proselytizing. But Edgington is right that the reason many people complain about evolution education is because they believe that it is a kind of "religion" which is receiving preferable treatment over their own religions. "[B]y exclusively teaching evolution as fact and giving no credibility to the creation model in the classroom, school boards and teachers are inadvertently endorsing a belief system that is wholly incompatible with one of the central tenants [sic] of many religions, namely, that the universe is a special creation of a supreme being." Id. at 154-55.
There are three problems, however, with this argument. First, evolution, being science, differs from religion in that it is a testable, confirmable theory, which can be compared with observed results. The "creation model"--that is, a miracle story--is usually stated in an untestable way, and when it has been stated in a testable way (e.g., that the world was created in 4004 B.C.) such "models" have failed the tests. Second, evolution is taught as fact because it is a fact. It is as factual as any fact can be: it is a truth claim consistent with other testable truth claims. Teaching it as fact is therefore a legitimate enterprise. Creation, on the other hand, posits a supernatural entity which is allegedly "above" being tested for truthfulness. Third--and less abstract--the mere fact that a school teaches something that is "incompatible with" a religion does not mean that that thing may not be taught in the classroom. The government is certainly forbidden from teaching children that God does not exist; but it is not forbidden from teaching children that the earth orbits the sun, or that Israel exists, or that black people are not genetically inferior to white people. These facts may indeed be "incompatible" with the views of certain religious groups, but that does not mean the state may not teach them.
Any contrary rule would mean that religious people would have a heckler's veto over the classroom, or as I've put it earlier, a "get out of evolution free" card. Any time a fact challenged their preconceived religious notions, such people would be able not to silence the teacher and say "that is out of bounds, because we do not want to hear it."
An analogous argument was rejected by the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990). There, the petitioners were denied employment benefits because they had been fired for smoking peyote, which is illegal. They argued that their religion required them to smoke peyote, so punishing them for doing so violated their right to the free exercise of religion. The Supreme Court rejected their argument because it "mak[ing] an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling'--permitting him, by virtue of his beliefs, to become a law unto himself,'--contradicts both constitutional tradition and common sense." Id. at 885 (citation omitted). Just as Smith could not use his religious "disagreement" with the peyote law to block the state from prosecuting him, so parents should not be able to use their religious disagreement with the fact of evolution to block the state from teaching it.
Ironically, Edgington follows his statement up with this sentence: "Because such teaching seeks to prove a theory that is incompatible' with the religious beliefs of many students, it would seem to violate the prohibition issued by the Supreme Court that state action may not oppose religion." And this he follows with a footnote that cites Epperson v. Arkansas, 393 U.S. 97, 107 (1968). But here's what the Epperson Court actually said:
[The Establishment Clause] forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma.... The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment.
Id. (emphasis added). Epperson said that religious objectors may not silence teachers from teaching facts that people believe contradict their religious views--it did not say that the state may not take any action that "oppose[s] religion," whatever that might mean.
Edgington next provides a rather inflammatory "case study" to demonstrate what he's talking about: "Rape as an Adaptation in Men." Id. at 155. Edgington argues that evolution leads to the principle that morality is based on reproductive fitness: citing Randy Thornhill and Craig T. Palmer, A Natural History of Rape: Biological Bases of Sexual Coercion (2000), Edgington argues that
evolutionary adaptations in humans evolve to help individuals overcome obstacles to individual reproductive success.... [Thornhill and Palmer]'s premise is that if males do not have the traits that are preferred by those granting the permission to mate, they are forced to rely on coercive measures.... [Therefore, a]ccording to the authors, the tendency of some males to rape women is an evolutionary adaptation that arose through random selection and has survived because it enhances male reproductive success by increasing the number of women with which a male can mate.
Id. at 155-56.
What this proves, Edgington argues, is that "[i]f people subscribe to the theory of evolution, they must be consistent with their reasoning concerning all living things and the behavior of all living things.... Thus, if evolutionists [sic] are logically consistent with their beginning assumptions, the end result is morally devastating because the theory of evolution and its implications are a package deal." Id. at 157. If you teach evolution, then "materialism" follows, and in its train, rape, robbery and ruin.
There are several problems with this. For one thing, it appears to commit the nudist fallacy. The mere fact that biology causes a phenomenon does not mean that that phenomenon is right or wrong. This fact is elementary for folks in the biological sciences, who deal with all sorts of biologically caused bad things, such as mental disorders which cause people to murder or rape others. For another, if morality is a product of evolutionary processes--which it is, in some way at least--then there must also be an evolutionary explanation for the notion that rape is wrong, also. Such explanations are, I'm sure, being proposed by evolutionary psychologists as we speak. I am not familiar enough with the controversy that Thornhill and Palmer's book sparked to comment more intelligently on the subject of rape specifically (although the fact that it was controversial is a crucial matter which Edgington ignores completely). But the mere fact that moral beliefs are evolutionary in origin does not denigrate from their rightness or truthfulness, as Daniel Dennett explains in his excellent example of the Boeing engineer.* Also, there are non-theistic explanations for the origins of individual rights and the wrongness of rape, which are perfectly consistent with evolution. And then, of course, many people believe that it is entirely possible to believe in biological evolution as well as theistic explanations for the personality, and of the individual rights that attach to the personality.
The point is, Edgington's argument that evolution = materialism = the destruction of morality is as baseless as when it was first proposed by William Jennings Bryan. It is not that evolution and "its implications" are a "package deal." It is that Edgington has performed a remarkable--though by no means rare--feat of intellectual gymnastics that combines such logical fallacies as the false dilemma, the straw man, and the undistributed middle.
But, of course, it is true that such fallacious thinking is very common among evolution's opponents.
Edgington concludes this argument by saying that "[b]y eliminating the possibility of a thoughtful planner who created the universe, or at least put the elements into motion, the theory of evolution has implications that are detrimental to theistic beliefs, even though it is not a religion or an anti-religion according to the courts." Id. at 157. Well, that may be true, but note the weasel word "implications." What Edgington's passive voice is meant to avoid is the fact that all facts can have "implications" to any number of people, based on their misunderstandings, their corrupt motives, or what have you. The mere fact that evolution can "have implications" (to whom?) which are "detrimental" (to what degree?) to "theistic beliefs" (why do these beliefs alone count in the consideration of this issue?) does not prove that teaching evolution is the same as propagating a religious viewpoint. One might easily construct any number of hypotheses along the same line to show the weakness of this "implications" argument: the fact that good, innocent people suffer from awful catastrophes is a fact that "has implications" that are "detrimental to theistic beliefs": many people turn away from religion because they think a just God would not allow the innocent to suffer. Ought we then to avoid telling students about the Christmas tsunami? Again, it is not a violation of the Constitution for a public school to teach children things that they find difficult to reconcile with their religious predispositions.
It may indeed be true that, as Edgington says, "[t]hese anti-religious implications cause parents and educators, who are trying to instill religious and moral values in their children, to find the theory of evolution repulsive." Id. at158. But a subjective feeling of discomfort is not enough to violate the Constitution. Again, if that were the case, people who are racists for religious reasons could cancel the teaching of Martin Luther King; anti-Semites could control the teaching of issues surrounding the Middle East--education would have to be tailored to suit the feelings of the most sensitive religious person.
Incidentally, Edgington senses a major flaw in his argument, and tries to avoid it when he says that "just because a critical approach to evolution may have religious implications, it is no more a religion or a violation of the Establishment Clause than is instruction on the theory of evolution, despite its religious implications." Id. at 159. But throughout his article, Edgington has argued that teaching evolution is an inappropriate form of indoctrination because it challenges folks' religious prejudices, and this makes them uncomfortable. If that is the case, neutrality would also require the government to avoid hurting the feelings of people who have non-religious prejudices. Since, in Edgington's argument, a way of thinking (i.e., science) is a way of "provid[ing] de facto religious instruction," id. at 154, it would seem that encouraging "critical thinking" would itself also be a form of "de facto religious instruction." It would, after all, offense people whose religions teach people not to think critically!
Edington's article is one of the best-written I've encountered on the subject, despite my disagreement with it. He is certainly correct in pinpointing the reason so many people find evolution education troublesome. But it's unfortunate that he does not also pinpoint their errors.
*--"[A] parody will expose the fallacy: The people at Boeing are under the ludicrous misapprehension that they have figured out the design of their planes on sound scientific and engineering principles...when in fact memetics shows us that all these design elements are simply the memes that have survived and spread among the social groups to which those airplane manufacturers belong.'" Freedom Evolves 187 (2003).
88 Comments
Reed A. Cartwright · 17 February 2005
According to Chad Edginton's website, he has been a "Alliance Defense Fund Blackstone Fellowship Intern, Christian Legal Society" and "Science and History Teacher [at] Park Avenue Christian School."
RBH · 17 February 2005
RBH
Randall · 17 February 2005
Well, since the Bible is both a science textbook and a history textbook, why not have one person teach both? ;-)
Lurker · 18 February 2005
So, is this another example of a Law review not being edited or reviewed before being published?
DaveScot · 18 February 2005
RPM · 18 February 2005
Ed Darrell · 18 February 2005
Uber · 18 February 2005
Good comment RPM, I was going to post the same but these fellas are actually becoming boring in their ignorance.
I think the time has come to adjust our stance on this ID thing, it's patently false. We need to ask them to prove their case and explain the evidence that we have accumulated.
This defending evolution against the ignorant hordes is simply boring. The only reason to do it at all is that it goes by another name as well----EDUCATION.
Mostly I feel sad that youthful indoctrination can make people so blind they cannot see the evolutionary concept is so sound.
Fraser · 18 February 2005
Personally I find the Unemployment vs. Smith decision a dreadful one. The principle of the First Amendment is that yes, the government should have a compelling interest before it starts restricting religious belief and yes, people with sincere religious beliefs do have a right to seek exemption (conscientious objectors, children wearing turbans or hajjibs to school, Orthodox Jews holding sabbath services in their homes [which has been challenged as violating zoning laws in a couple of instances]). And the government never had trouble using the compelling interest rationale when it wanted to.
It's particularly amusing this decision had the support of Rehnquist and Scalia who then turn and whine about how government oppresses religion.
As to the central issue in your post, very well reasoned, no other arguments.
Reed A. Cartwright · 18 February 2005
Sven · 18 February 2005
Timothy Sandefur · 18 February 2005
I've deleted a comment just now, because it wasn't substantive. Don't make me a babysitter, please. It's not clever, it's just a waste of everybody's time and computer memory.
Ed Darrell · 18 February 2005
Turns out that the whole group of plants is related, Sven -- from the "trees" to the "grasses." All of them silverswords. Did you look to see? http://www.botany.hawaii.edu/faculty/carr/silversword.htm
caerbannog · 18 February 2005
DaveScot said:
What test has confirmed that the gradual accumulation of random mutations conserved by natural selection has resulted in novel new body forms?
Hey Dave -- what "novel new body forms" do humans have that other primates don't?
Aggie Nostic · 18 February 2005
The advocates of these labels apparently believe that the scientific community has not been sufficiently objective/critical towards evolution over the years. It does cause one to wonder how evolutionary science has made any progress at all since Darwin.
Frank Schmidt · 18 February 2005
Timothy Sandefur · 18 February 2005
Would that be εχε δη? I was never good at Greek.
Reed A. Cartwright · 18 February 2005
frank schmidt · 18 February 2005
That's really sticking it to me. Ouch.
Jeff Chamberlain · 18 February 2005
Re comment #16833. When I was on law review (30+ years ago, it pains me to say), articles were edited and reviewed, by the editorial board and/or professors and/or practitioners. (Lousy stuff may have gotten published occasionally, but we could share the blame.)
Reed A. Cartwright · 18 February 2005
Well my wife is on a law review right now and the only review that is done is on format and references. (This is at a top tier public law school.) From what I can tell the only thing the editors do to review the submissions for quality is to pick enough papers out of the submissions to fill an edition of the journal.
The concept of critical review by experts in the field appears to be foreign in law reviews. IIRC, some famous/infamous legal scholar called it recently massive self publication.
Timothy Sandefur · 18 February 2005
There are some law reviews that are subject to peer review, but not very many. Most of them are edited entirely by students, whose editorial changes are usually only to check citations, make sure quotes are accurate, and so forth. Some student editors are more conscientious--I'm working on an article for New York University Journal of Law And Liberty, and they've been really careful to make me prove what I argue. And a lot of it depends on the school; the more prestigious the school, the better quality the students, the better the law review will tend to be. But most law reviews are practically the same as self-publication, and even the Harvard Law Review ran a notorious pro-ID article recently.
Empiricist · 19 February 2005
DaveScot · 19 February 2005
Ed Darrell,
The mustards have not mutated into novel new forms of life any more than any breed of dog is a novel new form. There is merely a change of scale in both cases. Existing structures changed size. Observations of what mutation + selection (even unnatural selection) is capable of producing are bounded and that is a simple fact. A simple fact which is denied in The Church of Darwin where bounded observations are extrapolated to unbounded power and the extrapolation is portrayed as a fact instead of an extrapolation.
Not a single experiment has shown that chemicals can self-organize into the structures found in living organisms used in support of self-replication. Even the much touted Urey-Miller experiment in the 1950's, which is still the state-of-the-art so to speak, which only managed to produce a few simple amino acids, has been shown to have not accurately simulated the conditions of the ancient earth. If you want to know more try googling "RNA world" which is the latest faddish failure in this regard.
DaveScot · 19 February 2005
DaveScot · 19 February 2005
Empiricist
Very well said. Kudos.
DaveScot · 19 February 2005
Timothy Sandefur · 19 February 2005
mynym · 19 February 2005
"It's been said before, but I'll repeat it once again:
Evolution says nothing about a) the origin of the universe, b) setting objects in motion, or c) the origin of life.
Just thought I'd repeat that for those that haven't been listening."
Actually, many people have been listening and reading editorials written by evolutionists, etc. It seems that only where there are free forums where the evolutionist will actually have to back up some of their vast mythological narratives of naturalism will they begin to limit the scope of "evolution" as you try to.
E.g.,
"Evolution is the framework that makes sense of the whole natural world from the formation of atoms, galaxies, stars and planets, to the AIDS virus, giant redwood trees and our own health and well-being.
....
Dorothy was lucky because the Wizard of Oz was wise. The wizards of the Kansas State Board of Education look foolish in comparison."
--Dr. Maxine Singer
President of the Carnegie Institution of Washington
(Washington Post, August 18, 1999)
More? There is more. It is as if there is a public definition and a private definition of the buzzword "evolution." And there seems to be specious and disingenuous rhetoric among evolutionist relying on the intellectual dishonesty of shifting the definition of "evolution" this way and that, all around.
Everyone who disagrees with evolution is "foolish" or "ignorant" for not knowing the definition of evolution, yet the evolutionists do not seem to know what they are talking about.
mynym · 19 February 2005
"One primary reason---and one that Mr. Edgington seems to adopt himself---is the belief that being taught facts that conflict with a person's religious beliefs is somehow a violation of that person's constitutional rights."
This would all be moot if parents could spend their own tax money to educate their children as they saw fit. I.e., you would not find yourself discussing the vagaries of Judiciary, those who Jefferson called "....the subtle corps of sappers and miners...", etc. But some of the same educators who maintain the textbook orthodoxy are those who reject school vouchers, etc. They want to continue indoctrinating children, by force of the State through judicial diktat if necessary, with Naturalism. That is the foundation of socialism, after all. They do not seem to believe in freedom of Conscience. For after all, they do not agree with the Founders in believing that consciousness itself is free of the physical. So they cannot seem to grasp the difference between education and their indoctrination.
The Founders, on the advent of modern socialism in the French Revolution:
"And what was their Phylosophy? Atheism; pure unadulterated Atheism . . . . The Univer
e was Matter only and eternal; Spirit was a Word Without a meaning; Liberty was a Word Without a Meaning. There was no Liberty in the Universe; Liberty was a Word void of Sense. Every thought Word Passion SentimentFeeling, all Motion and Action was necessary. All Beings and Attributes were of eternal Necessity. Conscience, Morality, were all nothing but Fate."
Letter from John Adams to Thomas Jefferson (Mar. 2, 1816)
in The Adams-Jefferson Letters
You will not have freedom of Conscience without admitting that consciousness is free, anymore than you will have civil rights sans civilization.
Ed Darrell · 19 February 2005
It may be useful to remember that Congress passed a law granting Native Americans exeptions from the law under the Smith decision. There is more than one way to accommodate the religious needs and wants of Americans.
Ed Darrell · 19 February 2005
Quite to the contrary, Mynym, Jefferson especially, and Madison, and at least a plurality of the founders agreed that freedom of conscience was impossible without education -- and they saw the duty of the state to provide that.
You may call it indoctrination -- but they saw it as prevention of tyranny by indoctrinators. They thought that without public education, religious groups would achieve unearned thrall over many citizens. It seems to me that they -- Madison and Jefferson --were right.
Empiricist · 19 February 2005
Enough · 19 February 2005
Put that disclaimer on every book, and would there be a problem?
Ed Darrell · 19 February 2005
Russell · 19 February 2005
steve · 19 February 2005
Miller-Urey discredited? No.
http://www.talkorigins.org/indexcc/CB/CB035_3.html
RBH · 19 February 2005
For those with fortitude and patience, the complete transcript of the September hearing is here. (Warning for dial-up users: It's a 3.8 meg file.) Ellington's testimony is on p. 319. Following his testimony there's a Q&A between him and a member of the board who tries to trap Ellington on chirality that's great fun to read. And the next guy, on p 329, compares Wells to Pons and Fleischman and cold fusion. :) There's a series of good witnesses following close on that.
RBH
frank schmidt · 19 February 2005
One of the facts that Wells and the DI conveniently ignore is that much of the same stuff that comes out of the Miller-Urey expt. has been found in the Murchison meteorite, in similar proportions. Unless one wants to invoke an Intelligent Chemist somewhere up there, this means that Miller-Urey type chemistry happens elsewhere in the Universe. In other words, there is nothing special about our planet regarding the chemical conditions for life.
This is another example of the Principle of Copernicus and my Mom, who has often told me that, though she loves me dearly, the universe does not revolve around my wants and desires.
steve · 19 February 2005
If I remember correctly, hydrothermal vents are the current interest for origin-of-life research, not Miller-Urey experiments anyway, because it's not thought that there was methane in the early atmosphere, and the chemistry you can get from hydrothermal vent-type systems circumvents that problem.
However, this post is off-topic, because it's not evolution.
Empiricist · 19 February 2005
Ed Darrell · 20 February 2005
RBH, one great difference between cold fusion and intelligent design is that ID lacks the experimental support cold fusion has . . .
Ed Darrell · 20 February 2005
Empiricist complains when I point out that chemicals self-organize. But those are the facts. I've tried without success to unite hydrogen and oxygen with flame and not get water, for example -- can't do it. Elements do not combine randomly, and this characteristic of elements in their molecular forms leads to self-organization of chemicals into pre-biotic substances. It's not a complete description, but it's accurate.
No hypothesis of life involves something other than self-organizing chemistry.
The "RNA World" materials are based on observations that RNA self-organizes, and then catalyzes more organization. Same principles, lots of laboratory demonstrations. So those discussions are not rebuttals of self-organization, but support for the concept.
Discussions about the "narrow window" of 150 million to 500 million years (!!) presume not only that biochemistry occurs on Earth, but also consider the observed self-organization of biochemistry elsewhere in the universe. The question is not whether chemicals combine into biotic precursors, but where and when, and how. These discussions tend to indicate that there are many different ways for life chemistry to get going, and that it probably happens in any comfortable place in the universe. Hence the recent space probes to moons of other planets in the solar system, and to Mars.
Again, I urge you to look at the work of Ellington and Ferris, and others. Look here, for example, at NASA's astrobiology site, to see recent results based on the 1947 study that showed organic molecules organize on minerals.
Ed Darrell · 20 February 2005
Here's a site with a bio of Dr. James Ferris, with links to .pdfs of some of his more recent publications:
http://www.rpi.edu/dept/chem/faculty/ferris/ferris.html
Empiricist · 20 February 2005
Kristjan Wager · 20 February 2005
frank schmidt · 20 February 2005
The phrase "Central Dogma" referred originally to the flow of information from DNA to proteins: DNA makes RNA (transcription) makes protein (translation), and yes, indeed, the term contains a definite sense of irony, since it was first enunciated by a group of iconoclastic molecular biologists.
Temin proposed the reverse flow of information based on considering how an RNA virus could incorporate a heritable change in a cell (i.e., at the DNA level). The characterization of reverse transcriptase by Temin, Baltimore, and coworkers verified the idea, but it needs to be remembered that this is essentially a case of copying nucleic acid information, and conceptually isn't that different from DNA replication, or transcription of RNA from DNA.
The one case where the Dogma is inviolate is in the one-directional flow from nucleic acids to protein. There is no "reverse translation" system, and the origin of translation remains incompletely known. This is fortunate for science (it gives us things to do) and bad politically, because it gives the creationists a claim that this makes a Gap for God to work.
Incredulity, however, isn't an argument. For example, how many of us, on learning about sex, couldn't imagine our parents doing such a thing? Let alone twice.
Empiricist · 20 February 2005
Kristjan Wager: The term "central dogma" is widely used in textbooks, and I have done scut work tracking down the NIH reference and the Time magazine reference to show that my use of the term is supported. Of course, it is certainly possible that Time magazine is not using the term correctly. But it is unclear to me why you believe that the onus is on your partner in colloquy to provide multiple references when you have not even provided an alternative meaning for the term "central dogma" nor have you provided a single reference. Of course, if you believe that demanding extensive references in a high-handed fashion is a useful communicative strategy then I will be happy to participate.
Kristjan Wager and Russell please present a precise alternative meaning for the term "central dogma". Please provide scans from diary entries, scans from laboratory notebooks, and conference report excerpts where appropriate to give supporting evidence. These primary historical documents should precisely trace the genesis and elaboration of the term "central dogma" and present exacting proof of the alternative meaning that you propose. Please also upload mp3 audio recordings of interviews with the individuals who coined the term. Of course, you should also present signed affidavits testifying to authenticity. I hope that you understand that this is satirical. My point is that conversations are actually a cooperative process. Perhaps you can move the conversation forward.
wildlifer · 20 February 2005
frank schmidt · 20 February 2005
Although the idea of one-directional information flow was current well before the term "Central Dogma" was used. I believe that Watson wrote about messing with it on the train from London to Cambridge as reported in The Double Helix.
Frank Schmidt · 20 February 2005
More on the Central Dogma: The phrase is used as a section heading in the first edition of Watson's Molecular Biology of the Gene, copyright 1965. So it was probably in use right after the discovery of mRNA and the code in 1960-61.
Russell · 20 February 2005
Empiricist · 20 February 2005
Russell: I gave an example from molecular biology in which scientists are not being dogmatic. An example in which scientists were required to refine and modify a theory that was shown to be incomplete and inaccurate. Note, very carefully - the scientists did change the theory. I certainly hope that other readers did not miss this vital fact. Indeed, that was the key point of my example. Here is a precis: One should not be dogmatic when formulating or imparting scientific knowledge. After Russell presumably read my comment in a rather idiosyncratic manner it appears that he misunderstood it at a basic level and concluded that I was accusing scientists of being dogmatic! Now he indicates that I am "tone-deaf to the irony". Wow!
Russell · 20 February 2005
DonkeyKong · 20 February 2005
You guys are sleep walking...
"There are three problems, however, with this argument. First, evolution, being science, differs from religion in that it is a testable, confirmable theory, which can be compared with observed results."
Evolution from amino acid to cell has not been tested or confirmed. Nor has increased complexity over time as a effect of an evolution cause. Increased complexity over time I will give you. But your linkage to gradual evolution is unproven. The argument that no other way is visible runs throughout the evolution theory.
The lack of tests, and confirmations of those tests is exactly what makes evolution quasi science. The usage of quasi-science because there is no stronger scientific explaination and calling it factual science is a from of Darwinism religion.
I believe religion should be kept out of school.
Wayne Francis · 20 February 2005
steve · 20 February 2005
So when the DMV calls and wants to know why I haven't had my car inspected, I'll tell them that I had it "amputated" by a tow truck.
Mike S. · 21 February 2005
Fraser · 21 February 2005
Case law says that the Fourteenth Amendment extended First Amendment restrictions on government to the state governments and all their component parts, such as school boards.
Fraser · 21 February 2005
Most importantly, I don't see how believers in accomodationism can get around the central problem of the heckler's veto. If government must jump through all sorts of special hoops any time a person can claim that his religion is offended by that particular law, then how can the government ever do anything?* Keep in mind that government is not allowed to inquire into the truth of any religion. It can ask whether a person sincerely believes in that religion, but that is all. In the jail cases that have arisen under RLUIPA, we have seen a microcosm of a reign of accomodationism and it isn't pretty. RLUIPA is a federal law which imposes accomodationism in prisons: if a prisoner objects, for religious reasons, to a policy of a prison, the prison officials are required to prove that the policy is narrowly tailored to advance a compelling incarceration interest. The result has been a flood of cases in which prisoners claim a religious right to eat steak and potatoes and whatnot, and the courts have been required to take evidence as to the sincerity of these beliefs. It's all been quite aggravating. But has it been productive? And can we run the rest of the world that way? >>
1. If the constitution was set up to be productive, it would just have created a dictatorship. Justice requires inefficiency (appeals, protection of due process, etc.).
2.It's true you can make absurd claims under the Fist Amendment, but it's equally absurd to say the government can tell an Orthodox Jew or Muslim "You'll eat pork or go hungry." I object to the government being able to force anyone to violate their fundamental beliefs, which is the logical outcome of Smith (in practice, of course, it'll be the fringe religions that suffer).
3. The pre-Smith standard--government can overrule religion when there's a compelling interest--actually worked pretty well. After the Amish won the right to do all their Amish things I don't believe the courts have ever found the government didn't have a compelling interest. So no, I don't think the heckler's veto is that terrible a threat or in practice allows everyone to decide at whim whether or not to obey the law.
4. And no, I also don't think that letting people practice their religion automatically translates into an "establishment." If we go that way, the First Amendment's religious guarantees are close to meaningless.
Timothy Sandefur · 21 February 2005
GCT · 22 February 2005
Fraser · 22 February 2005
First, my apologies: I rushed through yesterday's post, making it unclear.
Instead of saying "dictatorships are more productive" I meant "efficient." No debate, no negotiation, no dickering about what gets done, just Do It (if you've spent a lot of time around city government, you'll appreciate the difference that makes). Likewise, the lengthy death-penalty appeals system is tremendously inefficient compared to say, shooting convicted killers right after the verdict (or Obviously Guilty People without waiting for a verdict). In both cases we opt for an inefficient system to protect people's rights.
Same with accommodation. Yes, there will be debates and lawsuits and dickering and fakes taking advantage of it--but the fact the No Exemption approach is neat and clean and tidy and efficient doesn't mean it's better. I don't think it is, and I think it's fundamentally wrong.
Barring cases of say religions calling for human sacrifice or child rape (or other "compelling interest" cases) the government has no business deciding which religious practices are acceptable--which Smith gives authorities the power to do. The gains to religious freedom (something about which I am passionate) more than outweigh the problems.
When I spoke of making Muslims or Jews eat pork I was thinking specifically of prison food (another casualty of my rushed post). While I personally do not think God judges us on diet (okay, cannibalism might be an exception) someone for whom that's fundamental divine law shouldn't be required to break their duty to god, even if they're a convict. And yes, that gives them higher rights than me (I'm a vegetarian, but for ethical, not religious reasons--in fact I can't think of any religious exemption I could personally claim), I believe that is consonant with the first amendment (which refers to Religion not to Personal Opinion).
Nor is that making them a "law unto themselves"--these are, after all, traditions believed in by millions. And yes, some jailbirds do try to make up their own religions to get special breaks, but the system has managed to hold up despite them.
And yes, government can indeed "overrule" religion. During Prohibition, some Baptist-dominated states wouldn't exempt the use of wine in the Catholic Mass. Some local governments today have refused to allow Christian or Orthodox Jewish prayer groups to meet in private homes because they're not zoned for "house of worship"
Timothy, you argue that with exemptions, the big powerful religions will get breaks that the little ones won't. Agreed--but you can't possibly believe that won't happen under Smith, too. Consider Hialeah, where they passed a law banning Santeria animal sacrifice (overturned, because it specifically targeted Santeria, rather than being a general-purpose law that just happened to snag the worshippers in its net)--would they have tried anything equivalent on Catholics or Baptists?
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So we wind up with a system where believers will only be able to practice only with government consent. I find that equally constitutionally offensive (by the way, would I be correct to assume you have the same objection to the state Religious Freedom Restoration Acts, which restore the pre-smith situation at the state level? That gets around any question of first amendment interpretation but I'd assume since it still includes an exemption, you're against 'em).
And as for operating on your dime, if religion is interchangeable with any other system, then it has just as much right to compete for federal funding as secular NGOs (I don't think it should have that option, but that's because I think it should be treated differently).
Obviously we won't agree on this--as far as I'm concerned, this is one of those defend-to-the-death the rights of others issues (fortunately I don't think dying would actually do much to defend anyone's religious rights, so I'll stick to writing).
arbitraryaardvark · 22 February 2005
"Justice Thomas explained in his opinion in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), a very strict disestablishmentarian reading of the Fourteenth Amendment causes some very serious conundrums as far as the limits of state authority are concerned"
I'm unclear here. Are you for or against the position held by Thomas and the antidisestablishmentarianists*? In the interests of devil's advocacy, I'm going to disagree with you. So if you are a proantidisestablismentarianist, I'd be an antiproantidisestalishmentarianist, otherwise an antiantiantidisestablishmentatistista**.
1,3,7-trimethylxanthine brings out my sesquipedalian tendencies.
*29
*37
arbitraryaardvark · 22 February 2005
About dogma:
I have not seen or read the textbooks the non-forbidden stickers were stuck to.
But I can draw on my experiences as a former public school student.
What I'm wondering is do the texts teach evolution as received wisdom, or as a testable replicable theory students can validate for themselves?
In 9th grade we had a class called "chem-phys" in which physics and then chemistry were taught by the scientific method. Starting with gallileo and the speed of falling objects, we went through Hook's Law and Boyle's Law and Cole's Law with experiments that demonstrated that they worked.
But by 10th grade biology and senior year economics, we had gotten away from this use of scientific method and critial thinking, and were just supposed to learn by rote the received wisdom. The authority was the teacher, and behind the teacher was the principal, and behind the principal was the government, and the government was allpresent, allknowing, and allgood, but a jealous government, saying, thou shall have no other governments before me.
I did not learn until college that evolution is testable and readily verifiable, and that biologial evolution is a subset of the general role of evolution as a key component of systems theory. I also learned that they Keynesian macroeconomics fed to us as dogma in high school was unsound -
it wasn't after all that I was too stupid to understand economics, it was that they'd been preaching a set of lies to support statism.
I suspect that some of the objection from the creationist camp to the social function of the teaching of evolution in public institutions, is that it is being used to support "scientific socialism" and statism. This might be a form of either violation of the establishment clause or of free exercise. It's also bad science.
I think it is in the interest of creationists and evolutionists to oppose the teaching of evolution in a dogmatic manner, and that it is in the interests of the military-industrial-NEA complex to teach it that way, with resulting harm to society. From this perspective, the alliances shift, and forces that are currently bitterly opposed have a common cause, if they can somehow learn to work together.
One simple way to disrupt the cooptation of evolution is to loudly and widely spread the meme that Darwin got his key insight from reading Adam Smith's Wealth of Nations. Smith shows how no central authority or intellegent design is needed to efficently manufacture something like a pencil. Darwin applied those ideas to finches in the Galapagos. The economic principle of comparative advantage results in specialization and speciation, so that from lower forms of life evolve higher ones, culminating in God's magnificent creation, the aardvark.
Mike S. · 22 February 2005
Russell · 22 February 2005
Ed Darrell · 22 February 2005
Ed Darrell · 22 February 2005
Oh, I should have read the entire post.
Here it is in a nutshell: Not only does the Constitution leave all religious rights and duties in the hands of citizens, first by not delegating anything to churches in the operation of government nor to government in the operation of churches, in Articles I, II, III and IV (the state government article), but the Constitution then expressly forbids Congress from carving out any new structures that might circumvent that plan, by saying Congress cannot even legislate in the area.
So the states lack the authority to expressly support religion from the federal Constitution.
Whether a state could have established a church is the wrong question: All states disestablished before the union was made, and no state ever backtracked on that plan. New states all came into the union without established churches or any authority to establish a church, under their own constitutions.
So, simply, there is no federal or state constitutional well from which anyone could draw the authority to have government do the churches' jobs. "Congress shall make no law" simply means that Congress cannot create a new structure of any stripe to get around the other bans. It's an appositive statement, a restatement and reinforcement of other bans.
If a school district wished to endorse religion, on what grounds could it claim the authority to do so? School districts are arms of the state government, and so they would need to look to the state's authority to delegate to them. The states lack such authority under their own constitutions -- the people have withheld that power from the states. A school district might, in a final plea, appeal to Congress, but Congress is especially estopped from providing such authority.
A school district can't endorse stickers unless they are delegated authority from some other body. The state constitutions prevent the state legislatures from making such a delegation, and the federal Consitution forbides Congress from making such a law. Without that authority, the school boards may not act within the bounds of the law.
A lot of this discussion of the 14th Amendment is hoo-haw required to get around Barron v. Baltimore without flatout noting that it was a bad decision, made by "activist" judges I suppose. But we don't even need to go that far if we just read the state constitutions and note that there never has been delegated from the people any power for government to take such a role in religion. It's the wrong question to ask.
Frank Schmidt · 22 February 2005
Colin · 22 February 2005
That's true, Frank, but it's not the whole story. The 14th Amendment doesn't expressly apply the BOR by its own language - it's implied, which is the sort of thing conservative jurists hate. The sticky part is figuring out which parts of the Bill of Rights were implied to be applied to the states. Modern jurists, at least the ones who are fun to have around at parties, say it's the whole thing, and that's working pretty well for us. But it took a while to get there - for a while it looked like the BOR was going to be dribbled down to the states bit-by-bit. And, obviously, there are still some malcontents (*cough*Thomas*cough*) who think that this whole "rights" business has just gone too far, and that the states should be free to undisestablishmentize themselves and get right with Jesus.
Timothy Sandefur · 22 February 2005
Timothy Sandefur · 22 February 2005
Colin · 22 February 2005
Timothy Sandefur · 22 February 2005
by"is a brazen (and, it appears, admitted) misrepresentation of Justice Thomas' opinion, and one which can be easily dispelled by actually reading the opinion fairly. If we are going to debate constitutional law, it is important to "worr[y] much about detail [and] precision," and to be honest about what one's opponents really say and really believe. Like Prof. Amar, Justice Thomas is essentially arguing that what is wrong about the establishment of religion is that it violates the freedom of conscience---that is, that the individual injury that arises from an establishment of religion is a type of free exercise violation. When I am forced to support an established church, the harm I experience is the fact that my right to freely exercise my religion is being violated. Thus when Thomas says that he believes "States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest," that would mean that states would be forbidden from establishing religion. This accounts for Colin's confusion with regard to Thomas' views of free exercise and establishment. I leave it as an exercise for the reader: what injury is caused by establishment that is not already addressed by the free exercise clause? I am not saying I agree with Thomas; I do not know if I do or not. But these are fair questions, and deserve respectful treatment. Note that Colin can point to absolutely no evidence to substantiate his "concern that [Thomas is] willing to let states 'undisestablishmentize' themselves." That fact, combined with his admission that he is not "worried much about detail or precision" seriously undermines his characterization of Thomas' views. If "[t]he devil is in the details," we have a right to expect details from Colin. Perhaps it is true that "Thomas' idea of 'establishment,' especially as applied against the states, isn't nearly enough of a wall between church and state," but we would first need a fair assessment of what Thomas' idea of establishment is; second, we would need an answer to the question I've posed above. I see nothing in Zelman to suggest that Thomas "doesn't think that [the Establishment Clause] binds the states." Instead, what I see is the following: (citations omitted). I have shown above that Thomas is absolutely correct to say that the incorporation of the Establishment Clause is a more difficult question than has previously been admitted. Any person who can find in the passage I have quoted (or those I have not) any evidence that Thomas would be "willing to let states 'undisestablishmentize' themselves" or that he "doesn't think that [the Establishment Clause] binds the states" is reading such things into an opinion that are not there. What the motives for doing so could be, I shall not speculate.Ed Darrell · 23 February 2005
Colin · 23 February 2005
Colin · 23 February 2005
Bah, I totally forgot to mention - I'm from Lubbock, the home of Texas Tech, and went to church across the street from the university for twenty years, give or take. Most of my religious education was from a priest who also taught philosophy there. It's a small world.
Timothy Sandefur · 23 February 2005
that this whole 'rights' business has just gone too far, and that the states should be free to undisestablishmentize themselves and get right with Jesus,"now says that he "agreewith [Thomas] that EC jurisprudence has to be a little different when applied against the states from its application against the federal government."(Mr. Burns voice) Excellent. (/Mr. Burns voice)Ed Darrell · 23 February 2005
Colin · 23 February 2005
Timothy Sandefur · 23 February 2005
I've explained already why Mr. Darrell fundamentally misunderstands the Constitution. He says "The federal constitution prohibited established churches in the states by the simple method of failing to delegate that authority from the citizens to the states." But the federal constitution does not delegate any authority from the citizens to the states. That's not its job. It delegates authority to the federal government. But the federal constitution is not intended to delegate authority of any sort from citizens to their states; states receive their authority from state constitutions, not from the federal constitutions. States may exercise any authority that is not forbidden by the Federal Constitution, and they receive that authority from their citizens directly, not from any intermediary federal step.
Further, Mr. Darrell says "if the Congress had intended to 'preserve' [a state's authority to establish a church] in the First Amendment, they would have had first to have spelled [that] out...." But, of course, they did spell it out. They wrote "Congress shall make no law respecting an establishment of religion," which forbade the federal government from disestablishing churches. That's the plain language. If the First Amendment forbade states from establishing churches, it would have said "Congress and the states may not establish religion." Instead it forbids Congress from writing a law to disestablish a state's church, and then it reserves all powers not prohibited, to the states.
Mr. Darrell is of course right that "Ours is a limited government." But it is limited in two ways. First, by our natural rights---no government may ever violate natural rights. But that doesn't mean that the federal government has the authority to interfere when a state does violate natural rights. It only has the authority to do so under the Fourteenth Amendment. The second way that government is limited is through the enumeration of powers. But this applies only to the federal government: the federal government is one of enumerated limited powers. States are not. They are governments of all residual sovereignty. That means that they are limited only by natural rights, as well as the specific prohibitions in the federal Constitution or the state Constitutions. But they may do anything not forbidden, while the federal government may do only what is permitted.
Let us pause to make sure we use our terms clearly. All governments are governments of delegated powers from the people, because all just government rests on the consent of the governed. All governments are governments of limited powers, because our natural rights limit all government. (As the Declaration says, the just powers of government rest on the consent of the governed.) Not all governments are governments of enumerated powers. Only the federal government is. The states do not receive their powers by delegation from the federal Constitution at all---it exists only to specify the powers of the federal government, not the states; instead, state governments receive their powers by delegation from the people within that state, via the state constitution. And the people are free to put whatever they want in their state constitutions so long as it does not violate the Federal Constitution or natural rights.
Jon Rowe · 23 February 2005
I've been skimming this topic here b/c it interests me. I'll read it in more detail later.
I'd like to publish something about this, but I'm not sure if I have the intellectual prowess to write anything that will make a difference. Or perhaps my ideas have been done already by other people, probably much more qualified than I.
Here's how I see it: I agree with the "victimless" framework regarding the establishment clause. That, in order for the EC properly to be incorporated, it must related to an individual right.
However, LIBERTY rights are not the only rights properly incorporated and protected; EQUALITY rights are properly incorporated as well. When our founders spoke of unalienable rights, they typically grouped Liberty with Equality. And in Madison's Memorial and Remonstrance, he makes it clear that all men, by nature, possess unalienable Free AND Equal rights of conscience.
I know Phillip Hamburger and Noah Feldman have argued against this interpretation. And they may be just too above me for me to be able to refute them. And refuting them certainly requires accepting natural law as binding -- that men by nature have free and equal rights. Otherwise if we simply look to dominant opinion, we might rightly conclude that the populace didn't think so highly of equality back then. But Justice Thomas DOES accept natural law.
When I saw Phillip Hamburger speak at Princeton, he noted, that "the Establishment Clause is not an equal protection clause" to which another speaker replied -- and this was one of the wittiest retorts I've ever heard -- "yes, but the equal protection clause IS an equal protection clause."
And this reflects what Amar wrote in his book on the Bill of Rights that even if the EC is not properly incorporated, much of what the Court has that clause doing would be proper under both the Free Exercise AND the equal protection clauses, both of which reflect the natural fact that men have unalienable free AND equal rights of conscience.
That's my argument.
Fraser · 24 February 2005
Why bar religions calling for human sacrifice or child rape? Seriously. Why are they excluded?>>
I find this as silly as the religious arguments that teaching evolution is the first step to locking up Christians in concentration camps.
Simply, the right of religious freedom doesn't allow anyone to trample on anyone else's rights. No forced conversions, no murder, no stoning of unbelievers. I don't see that as conflicting with my views at all.
If someone wanted to be a human sacrifice for some reason .... trickier question. After all, Jehovah's Witnesses are allowed to refuse blood transfusions, even at the cost of their life (which isn't the same thing as letting someone kill them but you get my point).
Tim, you say that the "compelling interest" standard is "an awfully vague answer." True, it's not a nice, clear standard, but the fact is it worked: It was the operating standard from about 1973 to Smith and we didn't see the country slide into chaos with people everywhere slipping out from under the laws with fake cries of "religious freedom!" (We did see more infringement of religious practice than I'd like, but that's a separate problem). So the actual evidence indicates this is not the unworkable system you worry it is (including religious claims by prisoners).
<< Plus, keep in mind that Smith does not, I repeat, does not allow government to "decide which religious practices are acceptable." Government has absolutely no authority to do that, before or after Smith. Instead, that decision addresses whether government must grant special treatment to persons on the grounds that their religion requires it. The question arises when government passes a general law that has nothing to do with religion, but which a person finds objectionable because of his religion---for instance, when the government bans hats, but a Hindu needs to wear a headdress; or when the government requires all children to attend public school, but the Amish say this contradicts their religion. Under what circumstances is government required to accomodate the needs of those with special religious sensitivities? That is what Smith addresses. It does not address whether the government may decide which religious practices are acceptable. >>
In theory, yes. In practice, you're wrong. If someone wanted to ban Santeria in their community, they could do so if they didn't mind restricting other forms of public animal killing (Hialeah's mistake was that it exempted every conceivable kind of killing except Santeria services). Or discourage Wiccans by restricting religious ceremonies outdoors, perhaps. Or decide zoning won't allow Orthodox Jews to hold prayer services in their homes (if nobody else in the community does the same, that means a town can pass a general ban that still targets only Jews). Or allow religious buildings in certain zoning only on a case-by-case basis (as some communities have done, thereby making it easier to discriminate).
Or of course pass a bill and selectively enforce it only against some religious practices. So I find your solution a lot less workable in practice than mine is.
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That is absolutely what it does, in practice if not in theory.
<<. But we have to make choices in life, and it does not seem to me to be a Constitutional violation when the government says "here is a general law which all must obey, and if your religion requires you to violate it, you don't get out of jail free.">>
As I've said, here we disagree. And as I've pointed out, the state and federal Religious Freedom Acts shift this off the Constitutional playing field--do you object to the principle in that case (I'm guessing yes, but I don't know)?
I agree with you though, there is no perfect solution on this issue. So what else is new?
Timothy Sandefur · 24 February 2005
Mike S. · 24 February 2005
Chad Edgington · 13 March 2005
Thank you for the review of my article.
Chad Edgington · 13 March 2005
Zachary Hall emailed me the following after he was unable to post a comment to the site. Since I was able to I will post his email.
I might add that I do not consider myself a rising star of the legal community, but I do thank Zak for his kind words.
-Chad
"Well, I tried to post a comment, but I couldn't, because I don't belong to the online community that sponsors the website. Here's what I was going to post:
As a former member of the Executive Board of the Texas Tech Law Review, I just need to say that the selection and editing process at our law review is very thorough, and includes editing for substance at the front end of the process. We do not select articles for publication that make weak arguments. Mr. Edgington's article was well-researched, well-written, and made some excellent points.
Whether you agree with his position or not, Mr. Edgington's article makes a great contribution to the evolution vs. creationism debate. We would not have published it if it didn't.
I strongly recommend that every person who has posted a comment on this review read the article for themselves, and not just rely on the review by Mr. Sandefur.
Mr. Edgington is a rising star in the legal community, and his article is excellent.
Zak Hall
Lead Articles Editor
Texas Tech Law Review, Volume 35"