When Real Judicial Conservatives Attack [Dover ID opinion]

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

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

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

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

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

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

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

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

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

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

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

Then why didn't they specifically write the 14th amendment to say that? Isn't that the arguement you used about it not mentioning the Bill of Rights directly?

They did do that...those rights found in the 1866 Civil Rights Act are what were known as "privileges and immunities"...the legal term of art that means that person A (or in the case of the 1866 Civil Rights Act...a black person) will be treated no differently than anyone else by the state

John Bingham himself, who the incorporation advocates always cite as "proof" that the 14th Amendment was designed to incorporate the Bill of Rights, did not believe Congress had the authority to pass the 1866 Civil Rights Act. So, Bingham stated many times that he had drawn the “privileges or immunities” clause of the 14th Amendment from Article IV, Section 2. I don't think there is doubt in anyone's mind at what the P&I clause in the Article IV was intended to accomplish. The problem with Article IV is that it had nothing to say as to how states treated blacks within that state. It did prohibit states from discriminating against blacks from other states but, unlike Article I, Section 8, Article IV provides no enforcement power...so the 14th Amendment, by guaranteeing that every state had to treat blacks in that states on the same footing as whites, effectively remedied the defects in Article IV from which Bingham says he took the P&I clause of the 14th Amendment.

As to Bingham...as I wrote before...he said many contradictory things about the 14th Amendment. In 1871, he himself submitted a Judiciary Committee report on the 14th Amendment that stated:

the 14th Amendment does not in the opinion of the committee, refer to privileges and immunities . . . other than those privileges and immunities embraced in the original text of the Constitution, Article IV, Section 2. The 14th Amendment, it is believed, did not add to the privileges and immunities before mentioned.

He also stated during debate on the 14th Amendment that, under it, "the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect."

He also stated "this proposed amendment does not impose upon any State . . . an obligation which is not now enjoined upon them by the very letter of the Constitution."

Bingham was all over the map and its never been clear to what he was referring in his statements on incorporation. Most of remarks cited in support of incorporation were taken from Bingham's remarks concerning his proposed amendment “The Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States and to all persons in the several States equal protection in the rights of life, liberty, and property.

Bingham claimed his amendment “stands in the very words of the Constitution . . . Every word . . . is today in the Constitution." (as was typical with Bingham on this topic, he didn't have his facts quite right as “every word” was not “in the Constitution”...“equal protection” did not appear at all)

"[T]hese great provisions of the Constitution,” he continued, “this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States." As Professor Fairman pointed out in his article, Bingham was discussing Article IV, Section 2, and the 5th Amendment due process clause which Bingham equated with “equal protection. There is no reason to believe that his subsequent references to the Bill of Rights extended beyond those...and certainly his fellow Republicans did not believe that the 14th Amendment did more. William Higby of California thought that the Article IV, Section 2, clause and the 5th Amendment due process clause constituted “precisely what will be provided” by the Bingham amendment.

Thaddeus Stevens, who was probably Bingham's closest confidant, once famously said of Bingham:

In all this contest about reconstruction I do not propose either to take his counsel, recognize his authority, or believe a word he says

Two years after the 14th Amendment was ratified, the Supreme Court elaborated on "privileges and immunities" in Paul v Virgina:

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizen of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws

Never in their wildest dreams did the ratifiers of the 14th Amendment think they were making the 1st Amendment applicable against the states.

I've read that argument, but it just doesn't make sense. Clearly the Founders anticipated the states to be bound by the Consitution - if rights can be curtailed by government in any form, they aren't rights.

Then there was the awareness that moving from a decentralized government in the form of the Articles of Confederation to a centralized on under the Constitution meant that the states would be subject to a measure of Federal control, which was why many state leaders (like Governor Clinton in New York) were so vehemently opposed to its ratification.

You can't seriously believe that the Founders intended states to be able to hold persons without trial, or be able to quarter troops in private homes without the owner's consent, or ban gun ownership. That just doesn't make sense - such freedoms are worthless unless the states are held to the same standards. Same for the First Amendment - it's worthless if the states are not bound by its guidelines.

Now, why is it that some states had laws on the books that were specificially un-Constitutional? I believe the answer is simple - the fragile experiment was too precious to let die, so some violations had to be ignored. The Founders were bold men capable of bold action but also very familiar with the concept of "small steps" when necessary. If ignoring a couple of laws on state books was what they needed to do, they were willing to do it. That part's just my opinion.

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