Dispatches from the Culture Wars

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Thursday, February 26, 2004

Conservative Judicial Theory In a Nutshell

I had to chuckle as I read Tim Sandefur's take on how conservatives view the judiciary:
Joe: I would like to do X, which is something that doesn’t harm anyone else.

Richard: Yeah, but I don’t like you doing X. It just bothers me. Therefore I’m going to force you to stop.

Judge Bill: Um, Richard, I’m sorry, you don’t have the right to interfere with Joe if he wants to do X.

Richard: Aaargh! Unelected judges taking away my freedom! Help! Help! I’m being repressed!
Come and see the violence inherent in the system! Hilarious, and for the most part accurate. Too often, it seems to me, conservatives believe that if we limit their ability to impose their will on others, we've deprived them of their rights - as though they had some inherent privelege to do so. By the way, you should be reading his blog. You should also be reading Randy Barnett's webpage. And the Trivial Pursuit blog. And Southern Appeal too.

Southern Appeal has a long list of links to blogs discussing the 9th amendment, as this debate sweeps through the blogosphere.

Ed Brayton | 12:22 PM | | | Permalink

Darwin, Race and Slavery

They seem to be in desperate need of a fact checker at the Worldnetdaily. One of their features is called The American Minute, written by Bill Federer. Federer is president of Amerisearch, which is described as "a publishing company dedicated to researching America's noble heritage." Based on this snippet from one of his columns, I'd say their dedication to research far exceeds their ability to research. After noting that Abraham Lincoln and Charles Darwin were both born on the same day, he says:
Lincoln is best known for freeing the slaves by issuing the Emancipation Proclamation, affirming that all men are equal. Darwin is best known for the theory of evolution, arguing that all men are not equal because some are more evolved.
It's always amusing when someone who obviously knows nothing about a subject nonetheless tries to make statements about that subject and puts their foot in their mouth. Let's examine this claim in a bit more detail. He is really making two statements: A) that Darwin believed that some humans (the "savage races") were "less evolved" than other humans; and B) that he therefore argued that they were "not equal" in a political sense and could therefore be oppressed. Both of those statements are false.

While it's certainly true that by today's standards Darwin would be considered a racist because he did consider White europeans to be "civilized" while other groups of humans were "savage", that was a cultural distinction, not a biological one. Indeed, chapter 7 of Descent of Man is devoted to examining the question of whether the different races were actually subspecies that had evolved separately, and he concluded that they were not. And in point of fact, the notion that any species is "more evolved" than another in evolutionary theory is nonsense right from the start. Evolution is not a goal-directed process and it doesn't go in a simple linear sequence from less-evolved to more-evolved. All species are equally evolved - all that are alive have been selected for their ability to surive in their local environment and are well evolved to live in it. There is no more or less evolved.

The second statement, that Darwin believed that other races were unequal to whites in a political sense in contrast with Lincoln, is equally false. Darwin was in fact very much opposed to slavery and took a stand against it many times. In June of 1861, he wrote in a letter to the American biologist Asa Grey,
I have not seen or heard of a soul who is not with the North. Some few, & I am one, even and wish to God, though at the loss of millions of lives, that the North would proclaim a crusade against Slavery. In the long run, a million horrid deaths would be amply repaid in the cause of humanity. What wonderful times we live in. Massachusetts seems to show noble enthusiasm. Great God how I should like to see the greatest curse on Earth Slavery abolished.
Many times Darwin wrote of his concern and compassion for blacks who had suffered at the hands of whites, particularly during his voyage on the Beagle as he saw how the blacks were oppressed in Brazil and elsewhere. By today's standards, Darwin was probably a racist. By Victorian standards, he was extraordinarily liberal. And contrast his attitude with his creationist opponents, like the Harvard biologist Louis Aggasiz, who regarded blacks as an entirely separate species.

In another article by Mr. Federer, we find this bizarre statement:
But if there is no God - then men are not only not "created," they are not "equal," as Darwin espoused, some are more evolved than others...This concept influenced the Dred Scott Case, 1856, which stated slaves "had for more than a century before been regarded as beings of an inferior order...so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit."
One wonders how on earth Darwin's ideas, misinterpreted as they are by Mr. Federer, could have influenced a judicial decision in the United States that took place 3 years before he published Origin of Species and a full 15 years before he published Descent of Man. Amazing powers this Darwin has, managing to influence court decisions in another country before his work was even published!

What makes this claim about the Dred Scott case all the more ridiculous is that Federer is attempting to argue that equality can only be had if there is a God and he quotes the Declaration of Independence about equal rights coming from God, yet that is precisely what the Dred Scott decision is based upon! Look at the entire context of the quote from that decision that Federer uses to blame it on Darwin:
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
So contrary to Federer's patently ridiculous assertion that the Dred Scott decision was "influenced" by Darwin in contrast to the equality-loving theism of the founding fathers, the entire decision was made on the factual basis that those same founding fathers who declared that our rights came from God owned slaves. Contrast that with Darwin, who was vehemently opposed to slavery, and you are left with the unmistakable conclusion that Mr. Federer is peddling nonsense.

Ed Brayton | 12:10 PM | | | Permalink

Wednesday, February 25, 2004

Why I Support Gay Marriage

John Scalzi has written an incredibly eloquent essay on why he, as a married man, supports gay marriage. He asks the same question I've been asking of every person I speak to who is against gay marriage, which is usually answered by nothing but empty rhetoric:
I keep hearing how allowing gays to marry threatens marriage. Fine. Someone tell me how my marriage is directly threatened by two men marrying or two women marrying. Does their marriage make my marriage less legal? Does their love somehow compromise the love I feel for my wife, or she for me? Is the direct consequence of their marriage that my marriage and the commitment therein is manifestly lessened, compromised or broken? And if the answer to these questions is "no," as it is, exactly how is marriage threatened?...

The institution of marriage lies in the union of souls; to discuss marriage in general without acknowledging that it exists because of marriages in particular is a pointless exercise. If no single marriage is directly affected by two men or two women getting married -- if I and my neighbors and my family and friends and even my enemies are still well-ensconced in our individual marriages to our spouses -- how is the institution of marriage harmed? No harm has come to its constituents, who are the institution.
Dead on accurate. Over and over again we hear about the "sanctity of marriage" as though "marriage" exists apart from human beings, as though it was merely an abstraction that exists even if no one actually is married. When asked for anything specific, those who oppose gay marriage merely respond with increasingly abstract rhetoric, devoid of any connection to the real world. But people are not abstractions, and "marriage" doesn't exist aside from those who participate in it. And in reality there are thousands and thousands of gay men and women in long term committed relationships, just like straight couples, who want only a happy life with the same civil commitment that straight couples want. Except that if one of them is sick, the other doesn't even have the right to visit them in the hospital because they aren't immediate family, something any married couple simply takes for granted. When it comes time to make life and death decisions due to terminal illness, the lover to whom they have pledged their life has no legal say in what happens - again, something any married person would simply take for granted. Real people suffer because of this bigotry. Real people's lives are damaged by it. And no amount of empty rhetoric is going to balance the scales here. John's essay ends with this:
On what grounds do I as a married person tell others who want to be married that they are undeserving of the joy and comfort I've found in the married state? What right do I have morally to say that I deserve something that they do not? If I believe that every American deserves equal rights, equal protections and equal responsibilities and obligations under the law, how may I with justification deny my fellow citizens this one thing? Why must I be required to denigrate people I know, people I love and people who share my life to sequester away a right of mine that is not threatened by its being shared? Gays and lesbians were at my wedding and celebrated that day with me and my wife and wished us nothing less than all the happiness we could stand for the very length of our lives. On what grounds do I refuse these people of good will the same happiness, the same celebration, the same courtesy?

I support gay marriage because I support marriage. I support gay marriage because I support equal rights under the law. I support gay marriage because I want to deny those who would wall off people I know and love as second-class citizens. I support gay marriage because I like for people to be happy, and happy with each other. I support gay marriage because I love to go to weddings, and this means more of them. I support gay marriage because my marriage is strengthened rather than lessened by it -- in the knowledge that marriage is given to all those who ask for its blessings and obligations, large and small, until death do they part. I support gay marriage because I should. I support gay marriage because I am married.
Here, here, Mr. Scalzi. Here, here.

Ed Brayton | 11:44 AM | | | Permalink

Surprising SCOTUS Decision on Religion

The Supreme Court issued a ruling today that caught me very much by surprise. The case is Locke v Davey, and it involved a Washington state program that gives scholarships to students based on academic excellence. Joshua Davey was awarded a Promise Scholarship, but when the state found out he was planning to attend divinity school they cancelled it, under a state law that prevents public money from being spent on religious education. 36 other states have similar laws. In a 7-2 ruling today, the SCOTUS upheld that Washington law and ruled that it did not violate Davey's rights.

The most surprising thing about this decision, in my view and I assume in the views of other court-watchers, is that the decision was written by Chief Justice Rehnquist. He is typically on the other side of such issues. In fact, 2 years ago Rehnquist authored the 5-4 decision in Zelman v Simmons-Harris upholding the Ohio state voucher program that was challenged on the grounds that it resulted in public tax money going to religious private schools. In that decision, Rehnquist wrote,
The instant program is one of true private choice, consistent with the Mueller line of cases, and thus constitutional. It is neutral in all respects towards religion, and is part of Ohio's general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools--religious or nonreligious--and adjacent public schools.
Without having read the current decision, I'm at a bit of a loss to understand why Rehnquist ruled so differently here. This case has far reaching implications for the president's faith-based initiative program and for school voucher programs nationwide, but on the surface it doesn't seem to clear things up much. Stay tuned.

Ed Brayton | 10:52 AM | | | Permalink

A Picture is Worth 1000 Monosyllabic Words

Someone needs to remind the good folks in Texas that they lost at the Alamo.

Ed Brayton | 9:53 AM | | | Permalink

Tuesday, February 24, 2004

Reply to Bill Wallo on the 9th Amendment

Bill Wallo has replied to my post on the 9th amendment. In the process, he dubs me "Ed the Culture War Guy". Rusty has previously dubbed me "Ed the Evolutionist". I'm beginning to sound like a comic book character here, but I shall persevere nonetheless. :)

My position on the 9th amendment, you may recall, is that it sets the burden of proof on the government to show that where a claim of unenumerated rights is concerned there is a legitimate and compelling state interest in violating the individual's presumption of self-determination. This follows closely Randy Barnett's notion of a "presumption of liberty". Bill Wallo, on the other hand, advocates a "presumption of constitutionality". He writes:
Actually, I tend to agree with the "presumption of constitutionality" interpretation. If we consider that "we the people" are sovereign (i.e., that sovereignty and thus the power of government is granted by the people, rather than derived from the king or the like), then arguably in a representative form of government (which is what we have), it is the voice of the collective as articulated by the legislative body which is the purest expression of the collective sovereign. The typical notion of "majority rules, minority rights" reflects this fact: namely, that the sovereign (the people) are capable of articulating what they believe to be appropriate legislation, and the best check on that unbridled power is the ability of the courts to review the legislative action to make certain it does not contravene some sort of protected right.
The problem with this, in my view, is that it seems to equate "protected right" with "enumerated right", and to do so is to construct the 9th amendment in a way which makes it completely meaningless. As Larry Solum pointed out, that's the one construction of the 9th amendment that is completely ruled out by the text. If the only rights that were protected were those specifically enumerated, and all other violations of liberty were allowed so long as they fell within the enumerated powers of government stated in the constitution, then the 9th amendment is made superfluous. Yet we know that they put the 9th amendment in there for some reason. It was not, as Bork argues, merely an "inkblot".

The main difficulty here is the issue of abstraction. What Mr. Wallo is really arguing, though perhaps he doesn't realize this, is that it is permissable to abstract the powers granted to government almost without limit, but the rights of individuals are limited to the "letter of the law", i.e. only to those rights specifically enumerated. Under the constitution, the government is given authority to "promote the general welfare". One could easily abstract that enumerated power to justify, for example, a ban on eating fatty foods or, as it once did, a ban on drinking alcohol. But that is clearly an abstraction of the very general language of the constitution regarding the purpose of government. Allowing the full abstraction of governmental power, far beyond anything the founders intended, while demanding that individual rights be limited only to those rights that are specifically enumerated, is a recipe for the sort of authoritarian overreach that we are seeing in America today.

Beyond that, as I mentioned previously, Bill is reading the 9th amendment as to be essentially meaningless. If the presumption is that anything that garners 51% of the votes in a legislative body is constitutional unless specifically prohibited by the constitution, then on what basis could an individual assert any unenumerated right? And if there is no basis for asserting any unenumerated rights, then what was the point of writing the 9th amendment in the first place? This construction renders the text redundant with the 10th amendment and redundant with the enumerated powers, but the entire reason for putting the 9th amendment into the bill of rights in the first place was to avoid such a reading. This construction is essentially to read the amendment as saying what Hamilton said was unnecessary, but the very fact that they found it necessary argues against such a construction.

Ed Brayton | 11:57 PM | | | Permalink

Poker Blogs!

Well how do you like that, there are poker bloggers! And I just had to discover them 2 days too late to participate in the the Grublog Poker Classic, an online tournament for poker bloggers. Oh well, better late than never, right? That's right, in addition to being a heathen infidel who promotes gay marriage and godless EVILution, I'm also a degenerate gambler. Well, a degenerate poker player anyway. Up till now I've not blogged much about poker, other than to congratulate Paul Phillips on winning the Bellagio Five Diamond Classic.

Poker is suddenly the hottest thing on television. The Travel Channel shows the World Poker Tour, hosted by the stiff-handed Mike Sexton, the incredibly annoying Vince Van Patten (who did he screw to get that job?) and the stunning Shana Hiatt. Bravo has Celebrity Poker Showdown hosted by the very funny (though not on that show) Kevin Pollak and Phil Gordon, legendary gambler and fearless leader of the infamous Tiltboys. And ESPN is constantly showing the reruns of last year's World Series of Poker. For longtime poker players like me, this is a great thing as it brings more people into the card rooms. I'll explore the other poker blogs and add links to the ones I really like. And I'll probably start blogging more about my other avocation.

Ed Brayton | 3:57 PM | | | Permalink

Congress Shreds the Constitution

If there is one thing our Congress does better than any other deliberative body, it is their unmatched ability to come up with names for bills that cause one to spit their coffee out and drop their jaw in amazement upon hearing them. On the heels of the USA PATRIOT (Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism) Act comes the astonishingly named Constitution Restoration Act of 2004, sponsored by Sen. Richard Shelby and Rep. Robert Aderholt of Alabama. Jack Balkin of Yale Law School has an essay analyzing the act section by section and pointing out that every single one of them is unconstitutional. In short, the act would strip the courts of their jurisdiction to hear any cases involving the establishment clause and any act at any level that involves "acknowledgement of God as the sovereign source of law, liberty, or government." It would also prohibit the court from looking at any legal precedent of any other nation - except "English common law". And it would impeach any judge that violated the provisions of the bill. Balkin writes of the act's main provision:
Although Congress has the power to change the Court's appellate jurisdiction (this is one side effect of Marbury v. Madison) it may not do so in ways that violate the First Amendment. In this case Congress has made a viewpoint based distinction. Actions which acknowledge "God as the sovereign source of law, liberty or government" are shielded from judicial review, while actions which specifically (deny) "God as the sovereign source of law, liberty or government" may be reviewed under the Establishment Clause. Since both types of acts may in theory violate the Establishment Clause, the jurisdictional bar is based on the content of the government official's viewpoint. This would be akin to Congress denying review of cases where government officials punish someone on grounds of criticizing the war in Iraq while retaining review in cases where government officials punish someone for supporting the war, which would also be an unconstitutional withdrawal of jurisdiction.
The second provision, prohibiting judges from "relying upon" any precedent from any other country, is equally unconstutional, as well as entirely unnecessary. This is no doubt a reaction to the citing of precedent in other nations in Lawrence v Texas last year, but even there the judges did not "rely upon" those precedents, they merely mentioned them as background. The basis of the decision was solidly in US law and precedent and the decision makes a clear distinction. This is little more than a kneejerk xenophobic reaction.

Balkin concludes with this:
I never cease to be amazed at how shameless politicians can be when trying to score political points with their constituents. Although the bill's sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.
Here, here. This is nothing more than pandering and hypocrisy on the part of Congress in an election year. After years of listening to conservatives piss and moan about liberals and their "outcome-based legal reasoning" (they like to claim that liberals only care about "social engineering" and therefore find any basis to reach a judicial decision that leads to the result they desire), we finally see in perfect relief the utter hypocrisy of that claim. They have no problem shredding the constitution when it leads to the desired result, whether that result is scoring political points with their constituents or banning gay marriage. Only the outcome counts, and whatever means gets them to that end is just fine with them.

Ed Brayton | 12:02 PM | | | Permalink

Monday, February 23, 2004

More Nonsense from Bill Federer

The more I read of Bill Federer's work, the more he appears to be a poor man's David Barton. Everything is so utterly simplistic it's unreal. Consider the conclusion of this article published, naturally, in Worldnetdaily:
America's founders had a "deity-based" belief system. Why? Because:

1. Your rights cannot be taken away by the government if they come from a power "higher" than the government, i.e., God;

2. There are no second-class citizens if each person is equal because each is made in the image of God
Well let's think about this. If the founding fathers believed that your rights couldn't be taken away because they came from God and not government, why did they turn around almost before the ink was dry on the first amendment and pass the Sedition Act? That act was a flagrant violation of freedom of the press, and many prominent newspaper publishers were thrown in jail for criticizing the government. Obviously government CAN take away your rights even if they previously claimed that those rights "came from God". The irony is that the fight to do away with the Sedition Act was led by Jefferson, the one proclaimed to be a heathen and an infidel in the election of 1800 and the one who rejected the divinity of Jesus and the validity of most of the bible.

And if there are no second-class citizens if our rights came from God, as the founders supposedly believed, why did they write a Constitution that not only declared black slaves to be second class citizens, but didn't even classify them as full human beings! Under the original constitution, they only counted as 3/5 of a human being. So Federer quotes the founding fathers to support the notion that you must believe in God in order to avoid having second class citizens, but ignores the reality that those same founding fathers DID believe in second class citizens and wrote a constitution that explicitly declared a large percentage of the population to not even be fully human. It takes real talent to juggle such contradictions.

Ed Brayton | 11:30 AM | | | Permalink

Reply to Sandefur on Federer and the Founding Fathers

Tim Sandefur has responded to my post on Bill Federer and his simplistic version of American history. However, I think he misunderstands the point I was trying to make. He writes,
But I must disagree with his response to Federer on the issue of the “deity-based belief system” of the founding fathers. Most of the founding fathers did, indeed, have a “deity-based” belief system, including such notable skeptics as Benjamin Franklin and Thomas Jefferson.
But this is not something I ever even implied. I didn't question the fact that they had a deity-based belief system. To a man, they certainly did, even Paine (though it certainly wasn't the same deity-based belief system). What I was criticizing was the incredibly simplistic claim he made based upon that fact. When Federer claims that the result of a deity-based belief system is that the government can't take your rights away and that there would be no second class citizens, he is simply wrong, and the founders themselves proved that by voting to take away rights that they themselves claimed to be from God and by creating a system which had not only second class citizens, but human beings denied citizenship entirely. Their deity-based belief system didn't stop them from doing those things, and they are the example that he uses! This is not to suggest that the founding fathers were horrible people by any means. I am a great admirer of many if not most of them, despite their flaws. But if Federer thinks that all you have to do is believe in God and freedom and liberty will flow down the streets - and he at least seems to - he's being absurd. And the fact that our constitution contains no references to any deity-based ideas and draws solely on enlightenment philosophy should tell us that the ideas of freedom are compelling and world-changing quite aside from whether one thinks they ultimately come from God or not. My point was that whether a nation has freedom or not has precious little to do with God. If the rulers wish to take away our freedom for their political gain, their professed belief in God doesn't do a thing to prevent them from doing so, nor has it ever prevented an incursion of rights that I can think of. The historical track record of "deity-based belief systems" in government isn't any more inspiring than the track record of any other type of government. Our rights are secure as long as our leaders are held accountable and we ourselves are willing to grant to others, and demand for ourselves, self-determination. Either way, I don't see much reason to believe that God plays any role in the preservation of liberty.

Ed Brayton | 11:30 AM | | | Permalink

Testability 3.0

In a recent posting, Rusty answers me once again on the issue of testability. He proposes an actual test for both creationism and evolution. This is what he says:
But in the strictest sense of the term testability, a falsifiable prediction must be made in order for a scientific theory to be considered valid. Fair enough. So, although I am not associated with Reasons to Believe, I think I can make the following testable prediction from their model:

Further research will reveal function for so-called Junk-DNA sequences. Although considered by evolutionists to be a closed case, the Creation Model predicts that currently held scientific opinion on this issue will eventually concede that function is inherent in the Junk-DNA sequence. The failure of this test would be a devastating, if not killer, blow to the Creation Model.
This is a very interesting thing to say, for several reasons. He seems to be saying that if a function is not found for every single bit of the genome, creationism is falsified. Okay, I'll take that bet. Let's examine so-called "junk DNA" a bit further.

Junk DNA is the term given to that portion of the genome that does not code for proteins, meaning it does not manifest itself in the phenotype. The human genome project has identified about 40,000 active genes, but that is only about 2% of the total amount of genetic material in the human genome. The rest is often referred to as junk DNA. But that doesn't really tell the full story. Even the junk DNA is divided into different types, and it's certainly true that a few of the genes that were once thought to be non-coding have been found to have function. Indeed, that is one of the main tasks of the ongoing Human Genome Project, to identify each and every gene and determine whether it is active or inactive. A portion of what is referred to as junk DNA is made up of pseudogenes: sequences of genomic DNA with such similarity to normal genes that they are regarded as non-functional copies or close relatives of genes. There are two types of pseudogenes, processed and unprocessed, produced by two different processes:
duplication - modifications (mutations, insertions, deletions, frame shifts) to the DNA sequence of a gene can occur during duplication. These disablements can result in loss of gene function at the transcription or translation level (or both) since the sequence no longer results in the production of a protein. Copies of genes that are disabled in such a manner are termed non-processed or duplicated pseudogenes.

retrotransposition - reverse transcription of an mRNA transcript with subsequent re-integration of the cDNA into the genome. Such copies of genes are termed processed pseudogenes. These pseudogenes can also accumulate random disablements over the course of evolution.
How do we know that these processes take place? Because they've been observed. In microbe populations in the lab, scientists can identify gene duplications as they, identify the specific gene that has been duplicated, and then watch over subsequent generations as mutations build up in the duplicated pseudogene. In other words, this isn't guesswork, it's observation. And this not only provides powerful evidence for evolution, it also gives us enormous insight into how evolution took place by comparing pseudogenes in different genomes:
In any study of molecular evolution, it is necessary to compare and contrast genes from a variety of organisms to gauge how the organisms have adapted to ensure their survival. Pseudogenes are vitally important since they provide a record of how the genomic DNA has been changed without such evolutionary pressure and can be used as a model for determining the underlying rates of nucleotide substitution, insertion and deletion in the greater genome.
That's one type of "junk DNA". About 40% of the genome, according to recent estimates, is made up of what are called "transposable elements" - bits of DNA that can transpose themselves into other places in the genome and act as a sort of genetic parasite. Carl Zimmer wrote a fascinating article about them a couple years ago. As he puts it:
Through migration and proliferation, transposable elements have become inordinately successful, and that is how they have come to constitute 40 percent of our DNA, either as active copies or dead ones. Much of the remaining junk DNA in our genome may also turn out to be former transposable elements that have mutated beyond recognition. In certain species the proportions are even more staggering: 99 percent of the lily genome consists of transposable elements.
These transposable elements actually can play a major role in evolution, as Zimmer explains:
Transposable elements also appear to play a crucial role in the evolution of the cell's "legitimate" genes. Genes can evolve only if they first mutate, and transposable elements create a significant fraction of a genome's mutations. Like other kinds of mutations, most of those caused by transposable elements are neutral or harmful, but some of them can do an organism good. Sometimes, for instance, these mobile genetic parasites drag a piece of a neighboring gene with them to their new home. In the process, they link two preexisting chunks of genes into a new combination that may quickly take on a new function.

Transposable elements themselves have even become vital parts of genes. About 500 million years ago, for example, a transposable element in the genome of early vertebrates was incorporated into a gene that became part of our immune system. This ex-parasite stopped using its DNA-splicing skills to replicate itself and instead began rearranging the genes that encode pathogen-recognizing proteins. Thanks to this transposable element, our immune cells can quickly generate millions of different-shaped proteins. Through a process much like natural selection, the cells with proteins that allow them to identify pathogens will survive and can then be made to alter their genes again to do an even better job. In other words, it is only thanks to an erstwhile parasite that we can fight off other parasites.
Now, what of the few instances where they've found that what was previously thought to be junk DNA turned out to have function? Even here, what they have typically found generally means the opposite of what the folks at Reasons to Believe are claiming. Rusty gave a link to a couple of articles from the Hugh Ross website about scientists finding possible function for specific bits of junk DNA, particularly LINE DNA. Since it was a bit beyond my ability to understand, I turned to a friend with some expertise in the field to evaluate the claims. Paul Myers, a PhD biologist from the University of Minnesota-Morris, said that what they have identified is actually the opposite of what they suspect - it's evolution adapting bits of junk DNA into ongoing genetic processes:
LINE is a specific kind of repeated element that consists of a reverse transcriptase that has copied itself into the genome. It has just copied itself over and over into the DNA.

They describe two "functions". One is titration: cells make decisions about
when to divide by measuring the nucleus:cytoplasm ratio. In this case, the junk is filler that is taken into account when determining when to divide. It's putting everything backwards, though: as clutter accumulated in the genome, the ratio set point for division shifted to compensate.

The other is the discovery of enzymes that recognize a LINE sequence. Again, this is an after-the-fact adaptation. Evolution is a process that will co-opt anything lying around, and so a function was found for a short stretch of junk in one chromosome. It's like the nylonase gene, which acquired its function by fortuitously acquiring a short piece of random DNA from the junk pile, or like found art, that uses useless, discarded crap for a new purpose.
So what we're left with is this. A sizable portion of the genome is made up of pseudogenes, which are produced through processes that we've observed, and which are explainable only through evolution. A sizable portion of it is made up of transposable elements that help drive evolution by providing mutations that can be preserved through natural selection. And a sizable portion of it is made up of just random repetitive sequences, which Paul Myers says results from the fact that "the polymerase 'stutters' as it is making copies of long stretches of repeated stuff." And all told there is about 49 times more of that stuff than there is of active DNA. If Rusty is willing to base the testability of the creation model on finding function for every single bit of this stuff, I suspect he's going to be disappointed. But I also suspect that since this is an open-ended prediction, it's not really a true test. No matter how long it drags on, he can always say, "Well maybe we just haven't found out what the function is yet." But in the meantime, I'd say that a powerful case has been made for why the existence of pseudogenes and other types of junk DNA provides strong evidence for evolution.

An answer on the second part of his proposed tests, this one for evolution and dealing with irreducible complexity, is on the way.

Ed Brayton | 12:04 AM | | | Permalink

Sunday, February 22, 2004

Falwell Blames Gay Marriage on Darwin

Jerry Falwell has written an article in - where else? - the WorldNetDaily, entitled How Satan and Darwin Undermined the Church. Quoting Ken Ham of Answers in Genesis, Falwell takes the position that things have gone to hell, so to speak, in America because of evolution:
He diagramed how bygone theologians began to accept evolutionary thought. Initially, they said they could accept the conclusion that the earth must be millions of years old. They concluded that this was all right – that doesn't affect the Bible in any way. But they had to subsequently reinterpret the six days of creation. So they placed millions of years or long ages between the days of creation. So the day-age theory came about, and then the gap theory, which placed millions of years between the first two verses of Genesis. And then theologians, now on an uncontrollable slippery slope, concluded that Darwinian evolution could be combined with biblical teaching.

When we compromise the ultimate truth of the Bible, chaos is the ultimate outcome.

"If the foundations be destroyed, what can the righteous do?" (Psalm 11:3)

These church leaders who allowed the notion of evolution to be combined with biblical teachings actually unlocked the door to undermine biblical authority, Mr. Ham said.
And the rest, as they say, is history. The astonishing thing to me is that people actually say things like that with a straight face.

Ed Brayton | 12:09 PM | | | Permalink

Saturday, February 21, 2004

The Mother of All 9th Amendment Posts

Larry Solum of the Legal Theory Blog has written the 9th amendment post to end all 9th amendment posts (okay, that's not really true - you know we'll all be blathering on about this forever anyway). Larry is a neoformalist on matters of constitutional interpretation and he does a masterful job of breaking down the text here. He doesn't get around to describing all the limits of the 9th amendment that he would advocate, since that might take a whole book. But I think he convincingly shows that the Bork/Scalia version of the 9th amendment is totally unsupportable:
What is the forbidden construction? We all know the answer to that question. The forbidden construction says, "The first eight amendments enumerate certain rights. No other rights are enumerated. Because no other rights are enumerated, it follows that the constitution denies or disparages other rights which might have been retained by the people. If the people had wished to retain these other rights, they would have enumerated them." We know with absolute certainty that this is the construction which the text of the Ninth Amendment forbids, because this is the construction that is expressly negated by the text.

Of course, this textualist point does not provide us a construction of the Ninth Amendment. A construction of the Ninth Amendment requires more: it requires answers to the questions about the meaning of "deny or disparage," "rights," "retained rights," "retention by the people," and so forth. The textualist point does tell us how we must start our inquiry if we are to be faithful to the ideal of a written constitution that binds us to the text.
And he is absolutely right to point everyone to the numerous debates that have been going on over this issue over the past few days around the blogosphere. You should follow the link to his article, then follow the links he shows at the end to the best of the other entries. Alas, my contributions to the debate aren't on his list, but that is probably as it should be. I'm a rank amateur hanging around the edges trying to gleen insight from the brilliant contributions of so many others.

This is truly one of the great things about blogging. We now have everyday access to the thoughts of eminent scholars in a wide range of fields. Just in the field of legal theory, we can read the daily insights of so many top notch legal scholars that it's hard to keep up with them all - Eugene Volokh, David Bernstein, Jack Balkin, Michael Rappaport, Howard Bashman, Randy Barnett, Tim Sandefur, the entire lineup at Southern Appeal, Jacob Levy, and so many more. Take advantage of it while you can.

Ed Brayton | 3:13 PM | | | Permalink

The Dumbest Anti-separation Argument Ever?

My news aggregator sometimes comes up with fascinating links. This morning one popped up that just left me shaking my head. Someone named Stephen Erwin on GOPUSA, a conservative political website, wrote what has to be one of the most ridiculous arguments on separation of church and state I've ever read. He begins:
With the Supreme Court considering the Ninth Circuit Court ban on "under God" in the Pledge of Allegiance and refusing to hear the case about Judge Roy Moore and his Ten Commandments Monument, perhaps it is time to take a fresh look at the First Amendment.

If the First Amendment read "Congress shall make no law respecting (regarding) jellybeans" there would be no question of the meaning.

It would be obvious that a law creating a federal jellybean monopoly would be a violation of the law. Everyone would understand that Congress could not tax jellybeans, regulate jellybeans, ban jellybeans, or even write a law defining jellybeans. The Constitution would clearly ban any Federal interference with state jellybean laws. It would also ban Federal interference with any personal use of jellybeans on public property.
But apparently, Mr. Erwin believes that a Federal law that commands schoolchildren to recite a pledge declaring our reliance on jellybeans would not be a violation. The mind boggles, doesn't it?

Ed Brayton | 12:14 PM | | | Permalink

Sandefur and the 9th, Take 2

Tim Sandefur wrote a brief reply to me last evening. I think he's right, we don't really disagree, we're just using two different terms. I tend to say that where there is a legitimate governmental interest in a given area, it's a restriction on that right. He tends to say that if there's a legitimate governmental interest, then no right was there to be restricted in the first place. But we both reach the same result, which is hardly surprising since we both tend to take a libertarian perspective on legal issues in the first place. Anyway, read his reply and the rest of his blog too. It's good stuff, even aside from the law stuff. He loved Larry Solum's essay on the 9th amendment, as I did, but I'm awarding an additional 15 points to him for the Daniel Dennett reference. Dennett is a philosopher from Tufts and the director of the Center for Cognitive Studies. Also the author of one of the best books on evolutionary theory, Darwin's Dangerous Idea.

Ed Brayton | 12:11 PM | | | Permalink

Friday, February 20, 2004

Sandefur Joins the 9th Amendment Battle

Tim Sandefur has responded to my brief mention of his blog earlier. He thanks me for the mention, and I likewise thank him for his. I think he may have misunderstood something I said though. He quoted my statement in response to Rusty that if the government could show a legitimate state interest for banning sneakers, then such a law might pass constitutional muster, then says,
This would be true only if we define what a legitimate government interest is...When the Court tried to avoid it, it simply assumes the answer: “whatever the people want.” But the Ninth Amendment indicates to us that that cannot be the correct answer, because there are other rights that the people retain.
Actually, I do agree with him on that. It's obviously not enough merely to say that whatever the people would vote for constitutes a legitimate state interest. What would be the point of judicial review if majority vote determined the limitations of state power? He then says,
What is a legitimate government interest? The Declaration of Independence tells us: “to secure these rights,” namely, “life, liberty, and the pursuit of happiness.” These things are not reasonably related to banning sneakers, and it is therefore unreasonable for the government to do that at all, even aside from the fact that Congress has no such enumerated power. The Ninth Amendment warns us against an expansive reading of federal power, because such an expansive reading will lead us into the losing game of asking the question in the terms of undefined “government interests.”
Hmmmm. I'm not sure I agree with that, but I may be misunderstanding it. I'm not sure the first part is an exhaustive list of "legitimate government interests". I think a more thorough list would be found at the beginning of the constitution itself, wherein they tell us why they formed the document and the government - "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Those are all legitimate aims of government and sometimes they are in conflict and we must find some means of balancing them. I don't disagree that there is no legitimate interest in banning sneakers, of course. When I said that if the government could show a legitimate interest in banning them such a law might be constitutional, I was speaking only hypothetically, pointing out that no right is absolutely inviolable. Even free speech, as fundamental a right as we have, has narrowly drawn exceptions to it. And in broad terms, the government should not place limits on rights, whether enumerated or unenumerated, without a compelling state interest in doing so. Which is not, of course, to suggest that we have an easy and simple way of defining such an interest. But a good place to start, I think, would be with the list from the preamble to the constitution that I just listed.

And let me say that I agree with Randy Barnett in his brief on the Lawrence case as well. At the very least, it seems to me, consensual behavior that does not harm another person or deprive them of their rights should be considered rights even when not specifically enumerated and I agree with Barnett, as I said in a post earlier, when he says that there should be a Presumption of Liberty and the burden of proof should be on the government to justify any and all intrusions and limitations on those rights. So I'm not sure that Tim and I really disagree even on the minutae of this topic. Perhaps he'll clarify his position further if I am misunderstanding it.

Ed Brayton | 11:15 PM | | | Permalink

Evangelicals Mad at Bush?

The Washington Times is reporting that conservative evangelical Christians are upset at President Bush for a wide variety of supposed offenses. Such religious right luminaries as Gary Bauer and Donald Wildmon are sending up warning signals that evangelicals may just decide to stay home on election day because Bush hasn't inspired their faith in him. The mind absolutely boggles, doesn't it? Supporting a constitutional amendment to ban gay marriage, virtually ending stem cell research in the US, pushing through faith-based initiatives (by executive order in some cases), ranting in his state of the union speech about those damned liberal judges "legislating from the bench", nominating a steady stream of stridently right-wing judges, naming an attorney general who used to record gospel albums and wants to cover up every bare breast he can find, and declaring war on everything that isn't a fetus....that's not enough for these folks? I shudder to think what would happen if someone they are enthusiastic about gets elected!

Ed Brayton | 12:19 PM | | | Permalink

The 9th Amendment Battle is Joined

Bill Wallo of Walloworld has joined my ongoing conversation with Rusty (see posts here and here) about the 9th amendment. Mr. Wallo is an attorney and a writer. Welcome to the fray, Bill. He begins:
From the tenor of the discussion, Ed reminds me of me - way back in undergraduate school, after I'd taken a couple of constitutional law classes and everything seemed like a constitutional issue.
For the record, I've never taken a constitutional law class and never been to law school. I did take one class on constitutional history as an undergrad back in the middle devonian period. He quotes my obviously trivial example of a law that banned the wearing of sneakers, and says:
Here's the problem in a nutshell, inasmuch as the sneaker analogy goes. Congress could ban the sale and wearing of sneakers under its enumerated powers as long as there was some sort of legitimate governmental interest. If Congress conducted hearings and concluded that sneakers were somehow harmful, or it were possible to tie it to some governmental interest, such legislation would arguably pass constitutional muster - and there would be no "right" which it infringed.
I think perhaps Bill misunderstands my position, and it's partly because he is jumping ahead a bit. In my previous replies to Rusty, I did not actually state my own conception of the 9th amendment and the status of constitutional rights, and that was intentional as I was waiting for him to clarify his own position. Rusty seems to be taking the position that only enumerated rights are "valid" and unenumerated rights are not, but he also seemed to imply that that's not his position; I was waiting for him to clarify for me what his position was before actually giving my own.

Ed Brayton | 12:17 PM | | | Permalink

Majoritarian Tyranny vs Judicial Tyranny

Trivial Pursuit has a brilliant post on tyranny of the majority and the preference for judicial restraint the excesses of democracy. I agree with him almost entirely and can hardly think of a thing to add to what he said:
I'm far more comfortable relying on courts than legislatures, especially given that the entire and proper role of the former is to act as the last line of defense against majoritarian abuses.
Here, here.

Ed Brayton | 11:55 AM | | | Permalink

Thursday, February 19, 2004

Fisking the Discovery Institute on Evolution in Georgia

Stephen Meyer and John Angus Campbell of the Discovery Institute had an op-ed piece in the Atlanta Journal-Constitution on Sunday concerning the recent flap over evolution in the science curriculum in Georgia. In a way, you have to admire how skillfully the Intelligent Design (ID) movement has mounted the ongoing public relations campaign, with a boatload of clever catchphrases and the language of inclusion and reasonableness. But that is all the more reason to respond to them and show the reality behind the word games. They begin simply by briefly discussing the recent controversy, then say:
Is there any approach that will satisfy -- if not everybody -- at least most reasonable people?

Surprisingly, there is a way to teach evolution that will benefit students and satisfy all but the most extreme partisans and ideologues. Rather than ignoring the controversy (as many educators have tried to do), teachers should teach about the scientific controversy that now exists over Darwinian evolution.
This is very clever propaganda, as it offers a solution and casts it in terms that make those who would not find it satisfactory to be "extreme partisans and ideologues." It's also part of their ongoing strategy of creating controversy, then using the fairness-invoking catchphrase "teach the controversy" to make it all seem so reasonable. But here we are dealing with the curriculum in a science classroom. The job of a science teacher is to "teach the science", not to teach the controversy that surrounds a particular scientific theory in some religious circles.

Is ID science? On this question, Meyer and Campbell play sleight of hand, referring to beliefs held by scientists as though that answered the question of whether ID itself is a legitimate scientific model that deserves equal time in a science classroom. For example, they say:
When credible experts disagree about a controversial subject, students should learn about the competing perspectives.

In such cases, teachers should not teach as true only one competing view -- just the Republican or just the Democratic view of the New Deal in history class, for example. Instead, teachers should describe competing views to students and explain the arguments for and against these views as made by their chief proponents. We call this "teaching the controversy."
And we're back to the clever catchphrases. But notice that they didn't actually present anything like an actual scientific model or theory that "competes" with evolutionary theory, did they? The mere fact that there are people with PhDs who believe that ID is credible doesn't mean that ID is a competing scientific theory. In virtually every field of science you will find genuine scientists who believe things in their field that are patently absurd. Gerardus Buow, for example, is a man with a genuine degree in astrophysics from a real university who advocates geocentrism, the notion that the earth is the center of the universe that was disproven by Copernicus centuries ago. He has an organization and a publication and is forever railing at the astronomy establishment for believing the damnable lie that the earth moves.

Scientists are just as prone to believing nonsense as anyone else, the only difference is that science operates in a manner that allows such nonsense to go by the wayside. That is the purpose of peer review and open examination of evidence. That's why scientists must make their case before their fellow scientists at conferences and in journals. The inevitable cry, of course, is that the scientific community is so bent on shutting out God for their own immoral purposes that they will never give the thought of creation by design a fair hearing. How many times have we heard that refrain from the ID creationists? But that is all the more reason to be suspicious of what is really going on. Martin Gardner, who literally wrote the book(In The Name of Science, in 1952) on crank science, says:
Cranks typically do not understand how the scientific process operates, that they need to try out their ideas on colleagues, attend conferences and publish their hypotheses in peer-reviewed journals before announcing to the world their startling discovery. Of course, when you explain this to them they say that their ideas are too radical for the conservative scientific establishment to accept.
And he sets out a list of telltale signs of crankhood that includes the following:

(3) He believes himself unjustly persecuted and discriminated against. The recognized societies refuse to let him lecture. The journals reject his papers and either ignore his books or assign them to "enemies" for review. It is all part of a dastardly plot. It never occurs to the crank that this opposition may be due to error in his work....

(4) He has strong compulsions to focus his attacks on the greatest scientists and the best-established theories. When Newton was the outstanding name in physics, eccentric works in that science were violently anti-Newton. Today, with Einstein the father-symbol of authority, a crank theory of physics is likely to attack Einstein....

(5) He often has a tendency to write in a complex jargon, in many cases making use of terms and phrases he himself has coined.
And this was written 50 years ago! Gardner is of course referring to a single crank but it applies just as well to a collection of them, and it couldn't apply any more perfectly than to the ID movement. Phillip Johnson rails to no end about the hidebound scientific priesthood jealously guarding "naturalism" against the Truth of God; hence the need for the "wedge of truth". There is no more dominant theory in science than evolution, which is the central organizing theory of at least a dozen fields of study. And I'm not sure there has ever been a group of people who has invented more scientific-sounding and ill-defined jargon than the IDers, what with "complex specified information" and "irreducible complexity" and the like. When ID critics point out the shifting or inconsistent definitions of such catchphrases, they are inevitably told that they just didn't understand the real meaning of it as used, in this case, by Dembski or Behe.

To paraphrase Forrest Gump, science is as science does. If the ID crowd has a genuine scientific model, then they should let us all know what it is, beginning with their fellow scientists. So far they have yet to offer a real testable hypothesis, something that can actually distinguish designed objects from undesigned objects in the real world. What they do offer, ad nauseum, are criticisms of evolutionary theory, as though poking holes in evolution will automatically confirm the scientific nature of ID. Sorry, it doesn't work that way. And true to form, Meyer and Campbell spend most of the rest of their op-ed piece pointing out what they claim are flaws in evolutionary theory, such as the alleged Cambrian explosion (vastly overclaimed and oversimplified by the anti-evolution crowd) and the entirely false claim that evolution requires a "gradual branching-tree pattern" in the fossil record. They also trotted out this old chestnut:
Recently, more than 300 scientists, including professors from institutions such as MIT, Yale, Rice and the University of Georgia, signed a statement questioning the creative power of the selection/mutation mechanism.
I presume they are referring to the ad that the Discovery Institute took out in response to the PBS evolution series which listed scientists who had agreed with the following statement:
We are skeptical of claims for the ability of random mutation and natural selection to account for the complexity of life. Careful examination of the evidence for Darwinian theory should be encouraged."
They present this list quite often, presumably to show that lots and lots of scientists doubt evolution. But does that statement really say that? Absolutely not. Hell, I agree with that statement. In fact, I'll flat out declare right now that random mutation and natural selection cannot and do not account for the complexity of life. Why? Because it leaves non-adaptive mechanisms out of the equation. Biologists recognize that there are several ways by which mutations can spread and become fixed other than natural selection, including genetic drift. So agreeing with that very narrow and specifically worded question does not, in any way, provide a reason to doubt evolution or to accept ID. In other words, it's clever propaganda, but it's simply not true.

The Discovery Institute loves to play word games like this. Another great example of this is the bibliography provided to the Ohio Board of Education in March of 2002 by none other than the same Stephen Meyer whose article we are critiquing here, when they were pushing for inclusion of ID in science classes in that state. Since they couldn't provide anything establishing ID as a valid scientific theory, they tried instead to tear down evolution by giving to the school board a bibliography of references from the scientific literature that they alleged would show the problems with evolution. In their preface to this bibliography, Meyer and Jonathan Wells wrote,
The publications represent dissenting viewpoints that challenge one or another aspect of neo-Darwinism (the prevailing theory of evolution taught in biology textbooks), discuss problems that evolutionary theory faces, or suggest important new lines of evidence that biology must consider when explaining origins.
The NCSE smelled a rat, and they contacted every single author of all 44 citations in this bibliography to get their response, telling the school board what they learned by the responses of those authors. Did the authors of those articles believe that the articles in question provided any reason to doubt evolution or support ID? Nope:
NCSE sent a questionnaire to the authors of every publication listed in the Bibliography, asking them whether they considered their work to provide scientific evidence for "intelligent design."[5] None of the 26 respondents (representing 34 of the 44 publications in the Bibliography) did; many were indignant at the suggestion. For example, Douglas H. Erwin (author of [8]), answered, "Of course not — [intelligent design] is a non sequitur, nothing but a fundamentally flawed attempt to promote creationism under a different guise. Nothing in this paper or any of my other work provides the slightest scintilla of support for 'intelligent design'. To argue that it does requires a deliberate and pernicious misreading of the papers."[6] Several respondents even went so far as to say that their work constituted scientific evidence against "intelligent design."

Similarly, on the basis of the explanation prefaced to the Bibliography, it would have been reasonable for the Board to assume that the publications included in the Bibliography challenged evolution. But they don't. None of the respondents to NCSE's questionnaire considered their work to provide scientific evidence against evolution. David M. Williams (coauthor of [18]), for example, simply remarked, "No, certainly not. How could it possibly?" Almost all of the respondents emphasized that their work provided scientific evidence for evolution. Kenneth Weiss (author of [21]), for example, remarked, "I state clearly that evolution is beyond dispute based on all the evidence I am aware of."
Which did not stop our man Stephen Meyer from publishing an op-ed piece in the Cincinatti Enquirer a few weeks later declaring that the citations in that bibliography "raise significant challenges to key tenets of Darwinian evolution". I think Mr. Meyer is playing fast and loose with the facts.

Here's the bottom line. They can't provide any genuine scientific research supporting their own theory. In fact, they can't even tell us what this theory that they allege "competes" with evolution says, or give us a single testable hypothesis that flows from the premise of ID, or show us how their model manages to distinguish objects in nature that are intelligently designed from objects that are not. Yet they want equal time in the science classrooms because, they claim, ID is a "competing theory" and it's sound pedagogy to teach competing theories. But as I noted in an earlier essay, at least one of their own ID scholars, Bruce Gordon, has been honest enough to admit that ID is not ready for prime time yet and that it's being pushed into schools for all the wrong reasons:
design-theoretic research has been hijacked as part of a larger cultural and political movement. In particular, the theory has been prematurely drawn into discussions of public science education where it has no business making an appearance without broad recognition from the scientific community that it is making a worthwhile contribution to our understanding of the natural world...

If design theory is to make a contribution to science, it must be worth pursuing on the basis of its own merits, not as an exercise in Christian 'cultural renewal,' the weight of which it cannot bear.
Need it be said that the name of the Discovery Institute's organ that pushes ID was originally the Center for the Renewal of Science and Culture? They dropped the "renewal" a while back, all the better to disguise their goals. Which is what this whole thing is all about, as I've argued in more detail previously. In 1999, the ID advocates nearly succeeded in taking Kansas to Oz. If Georgia and the rest of the country want to avoid the same thing, it's time to look behind the curtain.

Ed Brayton | 6:23 PM | | | Permalink

Second Response to Rusty on the 9th Amendment

Rusty at New Covenant has posted a reply to me concerning the 9th amendment. He begins with this statement:
I think part of Ed's issue is that he really doesn't understand what I'm saying, or that I'm not communicating it clearly enough... or a little of both. He seems to think that I'm advocating that we have no other rights other than those enumerated in the Constitution.
He's right, that is what I thought. When he said, "The examples listed of rights we enjoy, but which have not been enumerated in the Constitution, do not reveal valid rights inasmuch as they reveal the rulings of judges", I read that as arguing that anything specifically enumerated in the constitution is a "valid right", while unenumerated rights are "invalid rights" that merely reflect the political desires of judges and are therefore illegitimate. Alas, I'm no less confused now. Let's see if this makes more sense as we analyze his post in more detail.

I had written: "All of these are examples of rights that you and I - and Rusty, I would bet - take for granted, yet they are not listed in the bill of rights. Obviously, the founders could not list every single right that the individual enjoys. You take for granted that you have the right to choose what kind of shoes to wear and that if the legislature passed a bill banning the wearing of sneakers in the US, you would assume that such a law was unconstitutional, right?" Rusty responded:
Well, NO, I wouldn't consider a law that banned the wearing of sneakers in the US unconstitutional. I would consider it a frivolous law without merit, but that's a far cry from attempting to tie it to a Constitutional right.
Okay, it appears to me that he is drawing a distinction between a "right" and a "constitutional right". But what exactly is that distinction? Let's try a specific example and see how it plays out. Rusty is a staunch advocate of homeschooling. Nowhere in the constitution does it mention that you have a right to homeschool your children. So let's say that Congress passed a law declaring that all children must attend school and cannot be homeschooled. I am assuming, based on what he has said so far, that he would consider this a "right" but not a "constitutional right". But what exactly does this mean? Does that mean that it can be overridden by legislatures? By judges? By legislators but not judges? Is there some standard that should be used to determine which rights (not constitutional rights, just "rights") can be violated and by whom? If so, where does this standard come from? I think I'll have to wait for Rusty's answers to those questions for the moment, because I really don't understand what exactly it is that he is arguing here.

I want to examine one more statement he made though. Rusty said:
So we have a little problem here. If all rights not listed in the Constitution are covered anyway, and if those rights become Constitutional, then when a court declares that a slave owner has the right to own a slave because the slave is not a human but because he / it is the slave owner's property, what are we to do? The right is Constitutional - right? It must be inalienable - right? The court creates meaning - right? Wrong.
This seems odd to me, and again I may be misunderstanding. He seems to think that if it's in the constitution it's "inalienable", but if it's not in the constitution, it's....what? That was the question I asked above and I'll await that answer. But I think it also should be said that merely because it's a part of the constitution as originally written, it isn't necessarily inalienable. Does Rusty think that the founding fathers were infallible? Remember, the original constitution counted blacks as 3/5 of a human being and denied the right to vote to well over half the population. It is an amazing and enduring document, to be sure, but it is also one that we have improved immeasuribly through both the amendment process and judicial review. That doesn't mean we always get it right, but I think it's silly to claim that the original intent of the founders is the ultimate arbiter of what is good or bad given some of the horrendous mistakes they made in terms of equality under the law.

I think Rusty also misunderstands Kyle's argument. He quotes this passage from Kyle's essay:
While original intent is a Pandora's Box that is really not worth bothering with, because a) times change, b) the Founders set up a system that allowed for the evolution of legal interpretation through the Ninth and Tenth Amendments, and c) the Founders were such a broad, diverse, and compromising group it's impossible to determine what their "intent" on any single issue was in any manner even approaching precision, I would venture to file that they would support the right to privacy.
But he seems to think that Kyle is arguing that we cannot know the original intent of the founders at all, and I don't think that's what Kyle is arguing (I did inform him of Rusty's initial reply, so hopefully he'll weigh in on this issue on his blog or in comments here). I think what Kyle is arguing is not that we can't know the intent of the framers at all, but that because it is often difficult to know it for the reasons he stated, it's not the "holy grail" or constitutional law that many conservatives think that it is. And Kyle is right when he points out that the diversity of opinion among the founders often makes it very difficult and requires that we pick and choose among the views. I'll give one perfect example of why this is true...

In 1798, only 7 years after the ratification of the Bill of Rights, many of the same men (the founding fathers) who framed the first amendment guaranteeing freedom of speech and of the press passed a law called the Sedition Act. This law was pushed through and signed by one of the most prominent founding fathers, John Adams, and it got a majority of the votes in a Congress still led by several other prominent founders. Under this act, publishing anything that "defamed" the government was punishable with fines and imprisonment. And in fact, many of the nation's most prominent newspaper publishers were imprisoned under this law, including Benjamin Franklin's grandson. Another of the prominent founding fathers, Thomas Jefferson, ran against Adams in 1800 and when he won he pardoned everyone convicted under the Sedition Act and led the fight to repeal it because he considered in violation of the first amendment. Now tell me, given this situation, which position represents the "original intent" of the framers? It obviously isn't that simple. So while I disagree with Kyle when he says that original intent is "not worth bothering with" (though I doubt he really meant to make such a sweeping statement), I disagree even more with those who say that the original intent of the founders is the only thing that matters in judicial matters.

Anyway, I'll await Rusty's response on the first part of this issue and hope to get some clarification on what exactly he means regarding unenumerated rights.

Ed Brayton | 12:24 PM | | | Permalink

Scalia and Originalism

Jack Balkin of the Yale Law School keeps a terrific blog that I link to and read often. On his blog today, he includes a reposting of a message he sent to a constitutional law listserv concerning Supreme Court Justice Antonin Scalia and his concept of originalism. The listserv thread concerned an article that was written by Steve Henderson comparing Scalia's dissent in Lawrence v Texas (last year's case striking down the Texas anti-sodomy law) to Justice Taney's decision in the infamous Dred Scott case, which returned a slave to the slaveowner and struck down the Missouri compromise, as well as a reply to Henderson's article written by Matthew Franck.

It's an interesting question, and I tend to agree with Henderson that Scalia's originalism, if taken seriously and applied consistenly, would have reached basically the same conclusion that Taney reached. In part, at least, their reasoning was the same (though Scalia has criticized other aspects of Taney's decision).

But the deeper problem, as Balkin notes, is that Scalia doesn't consistently apply his concept of originalism, just as I have argued that Bork and many other prominent conservative legal scholars do not apply their legal theories consistently. As Balkin puts it,
Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy, and his favored values...

The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent. Rather, they pick and choose, depending on which constitutional rules they like better. It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey [which guarantee rights of abortion and contraception]. He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him. And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution. The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes. In this sense, Scalia's brand of originalism fails to perform the very function he says it should perform: the function of constraining judges. Having seen Scalia's body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was. Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.
The fact is that our understanding of constitutional law does change over time, and usually for the better. Henderson's article provides a couple of great examples in regard to the 14th amendment and how the application of it has changed from the time of its inception. The first he takes from Penn law professor Kermit Roosevelt (paranthetical aside - I wonder if he's related to the Kermit Roosevelt who ran the CIA coup that overthrew Mohammed Mossadegh in Iran in 1953 and installed the Shah in power?):
Kermit Roosevelt, a University of Pennsylvania law professor, said that when the court refused to update notions of fundamental liberty, the spirit of the Constitution's promises goes unfulfilled. Roosevelt said an 1873 case called Bradwell v. Illinois was a good example.

"In this case, an Illinois lawyer sued so she could become a member of the state bar, which didn't accept women," Roosevelt said. The 14th Amendment, which provides everyone with equal protection under the laws, had passed five years earlier. Still, the court ruled that the ban on female lawyers was OK, because the founders provided a woman "no legal existence" beyond her husband. The "paramount destiny and mission" of women was to be wives and mothers, the court said.

"Today, this would be a no-brainer violation of the 14th Amendment," Roosevelt said. "That's the way in which the change in societal attitudes should inform our interpretation of the Constitution."
The second example comes from the same time frame:
The University of Tulsa's Finkelman said the 14th Amendment in particular was written to be open-ended. John Bingham, the Ohio congressman who was the amendment's primary author, once said its charm was its "indefiniteness," Finkelman said. More than 130 years later, many subsequent applications of the 14th Amendment seem obvious.

"The language of the amendment makes it inherently flexible," Finkelman said. "For example, at the time the 14th Amendment was written it was quite common to conduct a criminal trial without a lawyer representing the defendant. That was not considered a denial of due process of law. But today everyone, even Scalia, would accept the notion that a trial can't be fair if the defendant doesn't have an attorney."
The point, which I've been trying to make in other entries on constitutional law over the last couple weeks, is that no matter how much anyone wants to pretend that they are "strict constructionists" who look only at the "original intent" of the framers, our understanding and application of constitutional doctrines can and has changed over the decades, indeed that it must do so. I understand the emotional appeal of pretending that every opinion is anchored securely in a set of unchanging standards, but it's just not honest to pretend so when even the most dogmatic originalists like Bork and Scalia will easily set aside their loudly proclaimed legal theory in order to insure the outcome that they want. And it's disingenuous to continue to claim, despite that fact, that one is an originalist and that only their opponents engage in subjective application of legal justifications.

Ed Brayton | 12:21 PM | | | Permalink

Wednesday, February 18, 2004

More Legal Scholars Agree on Scope of FMA

Jacob Levy of the University of Chicago has weighed in on the question of whether the Federal Marriage Amendment (FMA) in the New Republic. He agrees entirely with the argument I made in my fisking of William Kristol and in my post on Bork and the bizarre framing process of the FMA. That argument is that, contrary to the repeated claims of FMA advocates, the wording does prohibit states from passing any sort of civil union legislation. Levy is in complete agreement on both the fact of this and the inference of hypocrisy:
As written, though, the FMA would make it impossible to create the type of civil unions FMA boosters like Ponnuru suggest they're open to. More broadly, it's unlikely that any amendment preventing courts from creating civil unions would make it possible for legislatures to do the same. Worse, not only would the FMA deny state legislatures the authority proponents claim it would leave intact; it would also constitute the kind of unprecedented assault on state autonomy conservatives reject in almost every other circumstance.>
Levy also notes a further problem that hadn't occured to me, making it an even greater incursion on the federalism that conservatives claim to support in every other circumstance:
There is another, subtler problem with the FMA's second sentence: It does not merely limit and constrain state laws. It dictates a rule about how state laws and state constitutions will be construed and interpreted by the state's own courts. That is an unprecedented intrusion into the autonomy of the states' legal systems. Instead of limiting state law with federal law, from the outside, it would distort state law from within...

But meddling for the first time in how states interpret their own statutes and constitutions isn't a marginal change. It's a change in the basic status of state constitutions and legal systems. That's because state constitutional provisions can mean something different from their federal counterparts, even when they use precisely the same wording. Among other things, state-level precedent and the different overall constitutional structure in whose light provisions must be interpreted allow state legal systems to develop in ways more protective of individual rights than the federal system. Guarantees of freedom of speech, freedom of association, the right to keep arms, privacy and property rights, and, yes, equal protection clauses can all be construed more expansively in a given state than they are at the federal level--a fact that matters dearly to conservative defenders of federalism. For those who care about federalism as an institution for protecting freedom--a description most conservatives would assent to--federal intervention in state constitutional development is a dangerous precedent, imperiling precisely these rights.

But none of this seems to matter to the anti-gay marriage crowd. As long as it achieves the desired result, they seem intent on overthrowing their entire stated legal theory. And Levy is left to the same conclusion I've been making here consistently:
The FMA was oddly written in an attempt to meet social conservative aims under cover of shoring up the separation of powers and respecting federalist principles--and while avoiding the appearance of extremism that would be created by banning civil unions altogether. The attempt to do all this simultaneously failed. We're left with an amendment that achieves social conservative aims by subverting both the separation of powers and federalism. In this case, a bad cause seems to have made for bad law.

P.S. Eugene Volokh agrees with us too.

Ed Brayton | 3:26 PM | | | Permalink

Reply to Rusty on the 9th Amendment

Rusty Lopez has written yet another response to something I've written, but this time on a different subject. This time it's in response to a post I made on gay marriage and the notion of judicial activism. In particular, he is objecting to my arguments concerning the 9th amendment and unenumerated rights. He quotes a long passage from my essay on the subject, and quotes a long passage from Kyle Still's essay on the 9th amendment that I referenced, then raises his objections. He begins:
There are at least two things that should be addressed here: 1) The inherent difference between enumerated rights in the Constitution and all other rights, and 2) the double-speak regarding author’s intentions and how to interpret the meaning of a text.

The examples listed of rights we enjoy, but which have not been enumerated in the Constitution, do not reveal valid rights inasmuch as they reveal the rulings of judges. They remain and will always remain the opinions of the court...

Rulings are fallible – inalienable rights are not.
The "examples listed" that he refers to was a short list in Kyle's essay to court rulings that recognized rights that were not enumerated in the constitution originally but are still considered rights today. Unfortunately, Rusty truncates the list, skipping from 1 to 7 with nothing in between.

Let me give the full list as Kyle wrote it:
(1) The right to retain American citizenship, despite even criminal activities, until explicitly and voluntarily renouncing it (Afroyim v. Rusk, 1967);

(2) The right to receive equal protection not only from the states but also from the federal government (Bolling v. Sharpe, 1954; Weinberger v. Wiesenfeld, 1975; Adarand Constructors, Inc. v. Pena, 1995);

(3) The right to vote, subject only to reasonable restrictions to prevent fraud, and to cast a ballot in equal weight to those of other citizens (Baker v. Carr, 1962; Gray v. Sanders, 1963; Wesberry v. Sanders, 1964; Reynolds v. Sims, 1964; Harper v. Virginia State Board of Elections, 1966; Rogers v. Lodge, 1982);

(4) The right to presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime (In re Winship, 1970; Estelle v. Williams, 1976; Taylor v. Kentucky, 1978; Sandstrom v. Montana, 1979; Jackson v. Virginia, 1979);

(5) The right to use the federal courts and other governmental institutions and to urge others to use these processes to protect their interests (Slaughter-House Cases, 1873; NAACP v. Button, 1963);

(6) The right to associate with others (De Jonge v. Oregon, 1937; NAACP v. Alabama, 1958);

(7) The right to enjoy a zone of privacy (Griswold v. Connecticut, 1965);

(8) The right to travel within the United States (Crandall v. Nevada, 1868; Shapiro v. Thompson, 1969);

(9) The right to marry or not to marry (Loving v. Virginia, 1967; Zablocki v. Redhail, 1978);

(10) The right to make one's own choice about having children (Griswold; Eisenstadt v. Baird, 1972; Carey v. Population Services, 1977; Roe v. Wade, 1973);

(11) The right to educate one's children as long as one meets certain minimum standards set by the state (Pierce v. Society of Sisters, 1925);

(12) The right to choose and follow a profession (Allgeyer v. Louisiana, 1897; Meyer v. Nebraska, 1923; Gibson v. Berryhill, 1973);

(13) The right to attend and report on criminal trials (Richmond Newspapers v. Virginia, 1980)
It should be noted here that this list did not originate with Kyle, but was taken from a standard constitutional law textbook. All of these are examples of rights that you and I - and Rusty, I would bet - take for granted, yet they are not listed in the bill of rights. Obviously, the founders could not list every single right that the individual enjoys. You take for granted that you have the right to choose what kind of shoes to wear and that if the legislature passed a bill banning the wearing of sneakers in the US, you would assume that such a law was unconstitutional, right? But the bill of rights doesn't mention footwear at all and nowhere in the text does it say that you have such a right. Does that mean that the legislature can pass a bill outlawing sneakers? Of course not. This is an example of an unenumerated right, one that is not explicitly laid out in the text of the constitution, yet remains valid.

Rusty, on the other hand, seems to reject this notion, but I doubt he really rejects it in general. I suspect he only rejects it when it is used to recognize rights that he doesn't approve of. If he were to apply his argument consistently to every ruling that recognized an unenumerated right, he would reject all sorts of rulings that I'm sure he would consider perfectly valid, yet he has explicitly stated that all rulings involved unenumerated rights "do not reveal valid rights".

Would Rusty really argue that the right to presumption of innocence is not a "valid right"? If Congress passed a law violating that right, would he argue against any legal challenge to such a law? I doubt it. Would he really argue that a law restricting the right of people to leave one state and go to another is constitutional because the right to travel freely is not specifically mentioned in the constitution and was merely an "opinion of a judge" and hence not a "valid right"? I doubt it. How about the right to homeschool your children? The constitution does not mention such a right, but the courts have found that people do retain the right to do so. Would Rusty argue that parents don't have a right to homeschool their children because that ruling was merely a judge's opinion and therefore it did not "reveal a valid right"? Again, I doubt it.

Rusty skips over all of those cases that were listed in Kyle's blog and focuses instead on the right to privacy that was the basis for Griswold v Connecticutt. Why? I think Rusty tells us himself:
What happens when this right to privacy is attached to the act of abortion? A new “right” suddenly emerges, popping into existence at the judge’s bidding – the so-called Woman’s Right to Choose (to end the life of her unborn child).
I think what's going on here is exactly the sort of thing I discussed in previous essays on the inconsistency of conservative legal theories such as "original intent" and "strict constructionism". He doesn't like a specific outcome of penumbral reasoning and the recognition of unenumerated rights, so he argues that those things are, in general, invalid. But that's not a logical conclusion, unless he is prepared to jettison all unenumerated rights and all instances of penumbral reasoning as invalid. Nor do I think it's necessary to throw out the unenumerated rights baby with the abortion bathwater. I think one can make a case against Roe v Wade on solid legal grounds, or contest the legal reasoning of the decision within the confines of both enumerated and unenumerated rights, without claiming that all rulings recognizing such rights are invalid. And that would be a lot more consistent, in my view.

Lastly, Rusty says this:
This leads into the sloppy interpretive skills within analyses such as those of Ed and Kyle. With regards to specific issues we are told that it is impossible to know the intent of the framer’s of the Constitution. It appears that he attempts to get around this self-imposed hurdle by referring to an implied intent that the courts have found or construed. But this just raises another hurdle for only the author of the text can imply intentions within his text. Either the intent is there or it is not...Like it or not, the Constitution is not living – it is static. It says what it says and no amount of legalistic gyrations can make it say anything more or anything less.
I'm not sure where Rusty gets the notion that anyone is arguing that it's "impossible to know the intent of the framers of the Constitution". I certainly didn't argue that, nor do I think Kyle did. More importantly, I am left to wonder what Rusty thinks the intent of the 9th amendment was, if not to insure that the people retain rights that were not enumerated in the constitution, as it explicitly states. The text of the amendment says it; the framers spoke at great length of the need for it and the intent of that text; what exactly is at doubt? If they did not intend for unenumerated rights to have legal validity and protection, then what was the intent of the 9th amendment in Rusty's view?

Ed Brayton | 2:27 PM | | | Permalink

250 Missouri Scientists Stand Against "Intelligent Design" Bill

250 scientists and science educators from the state of Missouri have released a joint statement pointing out the unscientific nature of "Intelligent Design"(ID) and taking a public stand against Missouri House Bill 911. This bill is the most cleverly worded and detailed ID bill yet introduced in any state. Contrast the text in the Missouri bill with the text of the Michigan bill that is sitting in committee and you'll see what I mean. The Missouri bill was obviously written with the help of top ID advocates, perhaps even written by one of the pro-ID attorneys like David Dewolf. I highly doubt it was written by a state representative on his own.

Why is this important? First, because it is clear to those of us who are active in this dispute that the ID crowd very much wants to fight this out in a courtroom sometime fairly soon. They are looking for just the right opportunity, though. They don't want a southern state because those states tend to have a long history of having "equal time for creationism" legislation passed and struck down by the courts and they want to avoid any association with "creation science". Most importantly, they want a state in a federal judicial district whose judges are primarily Reagan or Bush appointees, as they would tend to be more sympathetic to the ID cause. Missouri may well fit the bill, so to speak. ID advocates have tried mightily to avoid any association with "creation science", since that idea has been consistently struck down by the courts. That avoidance is, as I've shown previously, by design, intelligent or otherwise. Ironically, ID advocates always show up to promote and defend such legislation despite their leader, Phillip Johnson, publicly claiming:
We definitely arent looking for some legislation to support our views, or anything like that. What our adversaries would like to say is - these people want to impose their views through the law - No' that's what they do. We're against that in principle and we dont need that.
Okay, I'm a poker player. I'll call that bluff. If you're not looking for legislation to support your views, if that's only what they do, why are you pushing legislation - perhaps even writing legislation - that would mandate inclusion of your views in science classes and terminate teachers who refuse to do so? The answer is simple, of course - because Phillip Johnson lied when he said that they weren't looking for such legislation. And this from the man who decries the loss of morality allegedly brought about by widespread belief in "naturalism".

Ed Brayton | 12:29 PM | | | Permalink

Dispatches from the Culture Wars