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.
It's very simple. I explained it all in post 379. You don't have the wit or the integrity to acknowledge.
Science is progressing just fine. There's always another set of questions. We don't need no steenkeeng Holy Grail. Philosophy in philosophy class, comparative religion in its own class, creationism in abnormal psychology class.
"I need more paragraphs, Scotty!"
So you just take the posture of a science federale and thumb your nose at steenkeeng Holy Grails? Impressive. You said for me to do some research and come back and teach you something new. Well, I just wanted to thank you for the enlightenment you have provided me here as well as the ethics lessons to help me steer my "integrity" in the future.
There's always another set of questions.
Yep, there always will be. On in to infinity. And science will never have them fully solved cause it was not meant to be that way apparently..
The Blaine Amendment was not in 1871. It was several years later during the lead-up to the 1876 presidential election. The Republicans (unfortunately) jumped on the anti-Catholic bandwagon. The growing Catholic population was starting parochial schools in many areas and many Protestants did not want their tax money going to Catholic schools. Aid to parochial schools was permitted, because the 14th Amendment had not incorporated the Establishment Clause. Congress had passed civil rights laws under its 14th Amendment enforcement power. Those bills protected the freed black slaves but didn't mention imposing the Establishment Clause on the states at all.
So there was prayer in school, Bible readings in school, and aid to religious schools throughout the nation. Those states which had ratified the 14th Amendment a few years earlier just kept right on with their pre-ratification policies on religion as if nothing had happened, because as far as the religion issue goes, nothing did.
However, some Protestants balked at the idea of "Papists" getting their tax dollars, and the Blaine Amendment was drafted to prohibit such aid. The Republicans thought it would be a good issue. Not only would it appeal to anti-Catholic attitudes, which were surging, but would split the Democrats. Southern Democrats mostly had Protestant constituents, who would like the Blaine Amendment. But in the North the growing Catholic vote went to the Democrats, so the Southerners needed the Catholic Northerners as allies to end Reconstruction.
At the time the Democrats controlled the House, the Republicans controlled the Senate. The Republicans planned to pass the Blaine Amendment in the Senate, watch it die in the Democrat House, and then go into the 1876 election accusing the Democrats of being "Papist".
The Democrats foiled the plan by passing the Blaine Amendment in the House. Of course, before doing so they removed the provision allowing Congress to enforce it, which made it meaningless for the most part. However, the average voter didn't understand those nuances, as the Democrats knew. In the Senate, the Republicans put the enforcement clause back in. However, fear then arose that if ratified, Blaine might enable Catholics to get the then common Protestant Bible readings kicked out of the public schools. So the Republicans added language to the Blaine Amendment to protect such Bible readings. The final vote went straight down party lines, with every Republican voting for and every Democrat voting against, so two-thirds were not achieved.
The Blaine Amendment was introduced in Congress for years afterward, even as late as 1930 if I recall, but never went anywhere. However, many states added Blaine Amendments to their state constitutions. Fueled by anti-Catholic sentiment, these amendments were designed to ban parochial aid (Protestant private schools were a rarity back then since the public schools were essentially Protestant) but not to secularize the schools.
Bingham did discuss the 14th Amendment during an 1871 debate. He said the eight amendments of the Bill of Rights did not apply to the states until the 14th made it so. A congressman from Pennsylvania responded that if he had claimed that before ratification the 14th would have been rejected. Indeed, life went on in Congress and in the states after the 14th's ratification as if nothing had happened vis-a-vis religious establishment. There was no action to get rid of state ties to religion to conform to the new Amendment, no action in Congress to enforce the Establishment Clause against the states, no Supreme Court edicts until many decades later as leftist judicial activism began its rise.
Topologically you can, and that's how biological forms change.
The NH Constitution empowered the state legislature to authorize towns, parishes, and religious societies "to make adequate provision....for the support and maintenance of public Protestant teachers of piety, religion, and morality" and, under NH law, only Protestants were eligible to be governor or legislator.
In a 276 page opinion, the 14th Amendment (again, ratified only 5 months earlier, including by the state of NH) was not mentioned once...either in the opinion of the Court or the dissent. The only mention of the US Constitution's 1st Amendment was in the majority opinion as follows:
...the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions...Probably at the time of the adoption of the constitution and of the amendments to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as not incompatible with the private rights of conscience and the freedom of religious worship.
Another illustration that incorporation by the 14th Amendment was hardly crystal clear...none of the NH Supreme Court justices or the litigants in that case seemed aware of it
In all candor, I have not read Curtis' book (its been on my Amazon wish list forever). So I will take curiosity's advice and get it and read it.
Yes! What I think we're dealing with here is that there were some very general statements made about the 14th Amendment making the Bill of Rights applicable to the states by Bingham and some of his allies. That's because SOME of the BOR were clearly made applicable to the states by the 14th (e.g., 5th Amendment Due Process) and in a debate people don't always clarify every detail in every statement they make. So when discussing the fact that some of the BOR are incorporated by the 14th, there were general statements made about the amendment placing the states under the "Bill of Rights", but they were just general statements made in debate. I mean, if we somehow placed Iceland under six provisions of the U.S. Constitution, but not the rest, the debate over this might include a few general statements about how we were for the first time "placing Iceland under the U.S. Constitution", but that wouldn't mean every provision.
Bingham appeared after ratification to be more prone to making these statements than before. One time when he clearly stated that the eight provisions of the BOR were made applicable against the states by the 14th, he was quickly reminded that if he had said such a thing before ratification, there would have been no ratification.
Normally when constitutional changes are made, states comply. To the best of my knowledge, no state has tried to bring back slavery, disenfranchise women, or give the power the choose U.S. Senators to their state legislatures since the relevant constitutional amendments on those issues were adopted.
There have been cases where states tried to find ways around amendments. The 15th Amendment giving blacks the vote was met with opposition, That involved changing the election laws to require poll taxes, literacy tests, and other technicalities that blacks couldn't meet.
But the 14th was not followed by states changing their laws on religion in any way, or altering their laws to try to weasel their way around the supposed new federal power to enforce the Establishment Clause. The only change came a few years later when anti-Catholic sentiment prompted a drive to eliminate parochial school aid, and that drive reached its peak with demands for a CONSTITUTIONAL AMENDMENT, not an assertion of power under the already ratified 14th Amendment. The 14th contains a clause authorizing Congress to enforce its provisions. Why didn't they just use that to pass a statute banning parochial aid with a simple majority rather than trying for the more difficult super majority for a constitutional amendment, if the 14th had incorporated the Establishment Clause?
Like today, people can review the same data and reach different conclusions. Given the stature of both Fairman and Curtis, I'm sure that both had carefully examined the material relevant to the writing and adoption of the 14th amendment. Having done so, Fairman was convinced that the 14th was not to include all of the BOR. Curtis was convinced that it was to be included. Contrary to what has been stated earlier in this thread, if the proof in the original documents was so convincing, Constitutional scholars would not still be engaged in this debate.
And its worth noting that, when reading the Congressional Globe, Bingham's references to the BOR are always written "bill of rights"...small "b" and small "r"
Bingham never once before ratification of the 14th Amendment specifically referred to the first 8 amendments...it was always a non-specific reference to a "bill of rights" that would be applied to the states. In fact, only one time in all the debates did anyone state that the purpose of the 14th Amendment was to apply the first 8 amendments to the states...and that was Senator Howard. The use of the term "Bill of Rights" as specifically referring to the first 8 Amendments as we do today was not common in 1866...from what I've read, as of 1868, the Supreme Court had never used the phrase to refer to the first 8 Amendments. It was a more general term and I think you are correct when you say that Bingham intended to apply a "bill of rights"...specifically equal protection of "life, liberty and property" and the due process protections of the 5th Amendment.
Unless curiosity is correct that Professor Curtis has compiled evidence that there was substantial understanding among other congressmen and state legislatures that the first 8 Amendments were to be made applicable to the states through the 14th Amendment (and I've seen a tremendous amount of persuasive evidence to the contrary), it seems strange that we would all willingly accept such a transformation of the US Constitutional structure in the absence of clear and unequivocal language to that effect.
No. You really need to learn some basic math.
You are correct...and in the absence of clear language or clear evidence of intent, I would think that we would not, by inference or implication, assume such a radical transformation of the federalist system
BTW...you don't really understand lawyers do you? Lawyers can spend a month explaining to you what the meaning of the word "is" is :)
That's an excellent point that I hadn't really thought about, but reference to the first ten amendments collectively as **THE** Bill of Rights may be a more modern phraseology. At the time the 14th Amendment was being debated, there were only three other amendments in the Constitution beyond the original ten. It's doubtful that much effort was put into differentiating those ten from the other three in most discourse.
You're thus almost certainly correct that Bingham was referring to the 14th incorporating **A** bill of rights (i.e., a list of rights) which states would be obliged to respect. That makes a ton of sense. You're surely correct about this, and it would explain things better than my theory in earlier posts that they were speaking generally about the Bill of Rights. Instead, they were likely speaking of **A** bill of rights, by which they meant the rights specified in the 14th itself, not the first ten amendments Bill of Rights as we today understand them.
That would also explain why A) There was no firestorm debate over imposing the Establishment Clause on the states (as there surely would have been over such a radical change), B) states didn't act as if any changes had been made on religious issues when the 14th became law (no rush to either comply or evade), C) Congress never considered a single piece of legislation to enforce the Establishment Clause, though they had the power of enforcement under the 14th, and D) When a crusade erupted a few years later to end parochial school aid, it led to calls for a CONSTITUTIONAL AMENDMENT, not congressional legislation under the 14th (even though the latter would have been easier to pass if the 14th had incorporated the Establishment Clause).
Good post.
You ought to read "On floating bodies" by Archimedes.
Check this. There are damn few calculus students who could solve the problem of the floating paraboloid.
. I'll take Aristotle for a greater understanding of the world.
I'm not so sure. He just reasoned (no experiment) his way into the false assertion that heavier things fall faster; Archimedes, trying to find the formula for the area of a parabola, cut models out of sheet metal and weighed them, the proved the result rigorously.
Aristotle was Alexander the Great's tutor. Archimedes held off the Roman Army and Navy for a year. See the life of Marcellus by Plutarch. or here
Unfortunately, there is no contemporary evidence that he set fire to Roman ships with mirrors. However, ships have been found in Syracuse harbor with boulders on top of them.
Furthermore, this was a state court, not a Federal court, so it is not all that remarkable that it would not mention the 14th Amendment, especially if NH had something akin to the establishment in its constitution.
My mistake. Thanks for pointing it out.
Aid to parochial schools was permitted, because the 14th Amendment had not incorporated the Establishment Clause. Congress had passed civil rights laws under its 14th Amendment enforcement power. Those bills protected the freed black slaves but didn't mention imposing the Establishment Clause on the states at all.
Well, I don't think they mentioned imposing the establishment clause because most people didn't believe aiding parochial schools would violate it. In fact, as far as I know, under today's broader interpretation of the clause, aid to parochial schools via vouchers passes muster. Public schools continued Bible readings and prayers well into the 1950's, long after the incorporation doctrine was firmly established in the courts.
Again, I think your problem is with the current interpretation of the establishemnt clause, which I agree is wrong, not with incorporation of establishment.
Bingham did discuss the 14th Amendment during an 1871 debate. He said the eight amendments of the Bill of Rights did not apply to the states until the 14th made it so.
I'd like to see the citation for that. I remember reading several speaches during the debates leading up to 1868 where Bingham explicitly says the 14th Amendment applies the first 8 Amendments to the states. I will give you references if you wish.
A congressman from Pennsylvania responded that if he had claimed that before ratification the 14th would have been rejected.
Well then, the Congressman was full of it, because Bingham did make this claim during the debates prior to ratification. Citations available upon request.
Indeed, life went on in Congress and in the states after the 14th's ratification as if nothing had happened vis-a-vis religious establishment.
That's because no one thought any states were violating the establishment clause at the time. Again, the clause itself was interpreted much less broadly in those days.
There was no action to get rid of state ties to religion to conform to the new Amendment, no action in Congress to enforce the Establishment Clause against the states, no Supreme Court edicts until many decades later as leftist judicial activism began its rise.
In those days, people were not as concered about establishment as they are today. However, incorporation was revived long before the dawn of leftist judicial activisim. In fact, it was right-wing courts who revived it with the substantive due process doctrine in the 1890's.
Sorry, but people in the debates, including Bingham, specifically mention the first 8 Amendments.
When a crusade erupted a few years later to end parochial school aid, it led to calls for a CONSTITUTIONAL AMENDMENT, not congressional legislation under the 14th
Sorry, the more logical and obvious explanation is that the slaughterhouss cases already ruled that the 14th Amendment did not apply the bill of rights to the states.
Here's the requested citation link. It's the website of a man currently writing a book on Bingham:
http://federalistblog.us/mt/articles/14th_dummy_guide.htm
I agree that we probably aren't all that far apart. With or without incorporation, the current judicial interpretation of the Establishment Clause is incorrect.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.