Saturday, August 26, 2006


Tangipahoa RiverJurisdynamics is very pleased to welcome visitors from Red State Rabble, where Pat Hayes has done a splendid job documenting public disputes over the teaching of evolution in Kansas public schools and advocating the only scientifically and legally defensible outcome. I believe that this stream of visitors deserves a little background on an episode to which I have alluded as the federal judiciary's most disgraceful performance with respect to the teaching of evolution. It is an episode I recount at great length in my article, Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny, available for download via SSRN.

The case in question is the Supreme Court's otherwise routine denial of further review in a 2000 case styled Tangipahoa Parish Board of Education v. Freiler, 530 U.S. 1251 (2000). In Tangipahoa Parish (whose dominant geophysical feature is depicted here), a Louisiana school board had declared that lessons on "the Scientific Theory of Evolution" would "be presented to inform students of the scientific concept and not . . . to influence or dissuade the Biblical version of Creation or any other concept." The U.S. Court of Appeals for the Fifth Circuit duly invalidated the school board’s disclaimer. Public expressions challenging the scientific validity of evolution have no chance of withstanding the Supreme Court’s leading decisions regarding legal efforts to restrict the teaching of evolution. This is routine, settled law, a straightforward application of Epperson v. Arkansas, 393 U.S. 97 (1968), and Edwards v. Aguillard, 482 U.S. 578 (1987).

Justice Antonin Scalia, however, took extreme pains to dissent from this decision. He derided the appeals court’s reasoning -- and, by extension, that of his colleagues who voted to deny urther review -- as "quite simply absurd." He found no reasonable prospect of treating the school board’s "reference to . . . a reality of religious literature" as an unconstitutional “establishment of religion." After expressing seeming disapproval of Epperson and Edwards, Justice Scalia berated his colleagues for advancing further "the much beloved secular legend of the Monkey Trial."

Monkey trialJustice Scalia’s allusion to the 1925 prosecution of John Scopes for teaching evolution in a Tennessee high school represented a transparent political appeal to the shockingly powerful lobby that opposes the teaching of evolution in American public schools. Justice Scalia’s dissent in Tangipahoa Parish deserves condemnation because no other legal authority comes as close to supporting the teaching of creationism. The creationist lobby goes by the name "intelligent design" these days, but the enemy deserves to be called by its proper name: creationism. Justice Scalia’s shameless pandering gives judicial aid and comfort of the highest order to the creationist lobby.

Seen in the light of creationism’s slow but persistent growth into what Stephen Jay Gould has called a potentially "powerful champion[] of darkness," Justice Scalia’s gratuitous swipe at evolutionary biology in Tangipahoa Parish may be the most scientifically irresponsible passage in United States Reports. For sheer stupidity and public recklessness, Justice Scalia’s sarcastic reference to legal efforts to keep evolution in public school classrooms as a "secular legend" may actually eclipse Justice Oliver Wendell Holmes’s eugenicist epithet in Buck v. Bell, 274 U.S. 200, 207 (1927), "Three generations of imbeciles are enough."


Anonymous Anonymous said...

Scopes is a Legend.

You should separate the glaring lack of support for ID from the offensive nature of the science text at issue in Scopes, and the "secular legend" that arose that the book was good science.

It is ironic that you would link Scalia's opinion to Buck v. Bell, because the scientific evolutionary ideas at issue in the Scopes trial are the same ones at issue in Buck. The theory of evolution that was being pushed in Hunter's Civic Biology, the leading HS science text of its day and the book being prosecuted in Scopes, was EXACTLY the same idea of evolution that was being taught in Scopes.

See my post here:

Here are excerpts from the science text that Scopes was teaching, Hunter's Civic Biology:

"The Races of Man. — At the present time there exist upon the earth five races or varieties of man, each very different from the other in instincts, social customs, and, to an extent, in structure. These are the Ethiopian or negro type, originating in Africa; the Malay or brown race, from the islands of the Pacific; The American Indian; the Mongolian or yellow race, including the natives of China, Japan, and the Eskimos; and finally, the highest type of all, the caucasians, represented by the civilized white inhabitants of Europe and America."

"Improvement of Man. — If the stock of domesticated animals can be improved, it is not unfair to ask if the health and vigor of the future generations of men and women on the earth might not be improved by applying to them the laws of selection. This improvement of the future race has a number of factors in which we as individuals may play a part. These are personal hygiene, selection of healthy mates, and the betterment of the environment."

"Eugenics. — When people marry there are certain things that the individual as well as the race should demand. The most important of these is freedom from germ diseases which might be handed down to the offspring. Tuberculosis, syphilis, that dread disease which cripples and kills hundreds of thousands of innocent children, epilepsy, and feeble-mindedness are handicaps which it is not only unfair but criminal to hand down to posterity. The science of being well born is called eugenics."

"The Jukes. — Studies have been made on a number of different families in this country, in which mental and moral defects were present in one or both of the original parents. The "Jukes" family is a notorious example. The first mother is known as "Margaret, the mother of criminals." In seventy-five years the progeny of the original generation has cost the state of New York over a million and a quarter dollars, besides giving over to the care of prisons and asylums considerably over a hundred feeble-minded, alcoholic, immoral, or criminal persons. Another case recently studied is the "Kallikak" family. (Footnote: The name Kallikak is fictitious.) This family has been traced back to the War of the Revolution, when a young soldier named Martin Kallikak seduced a feeble-minded girl. She had a feeble-minded son from whom there have been to the present time 480 descendants. Of these 33 were sexually immoral, 24 confirmed drunkards, 3 epileptics, and 143 feeble-minded. The man who started this terrible line of immorality and feeble-mindedness later married a normal Quaker girl. From this couple a line of 496 descendants have come, with no cases of feeble-mindedness. The evidence and the moral speak for themselves!"

"Parasitism and its Cost to Society. — Hundreds of families such as those described above exist today, spreading disease, immorality, and crime to all parts of this country. The cost to society of such families is very severe. Just as certain animals or plants become parasitic on other plants or animals, these families have become parasitic on society. They not only do harm to others by corrupting, stealing, or spreading disease, but they are actually protected and cared for by the state out of public money. Largely for them the poorhouse and the asylum exist. They take from society, but they give nothing in return. They are true parasites."

"The Remedy. — If such people were lower animals, we would probably kill them off to prevent them from spreading. Humanity will not allow this, but we do have the remedy of separating the sexes in asylums or other places and in various ways preventing intermarriage and the possibilities of perpetuating such a low and degenerate race. Remedies of this sort have been tried successfully in Europe and are now meeting with some success in this country."

"Blood Tells. — Eugenics shows us, on the other hand, in a study of the families in which are brilliant men and women, the fact that the descendants have received the good inheritance from their ancestors. The following, taken from Davenport's Heredity in Relationship to Eugenics, illustrates how one family has been famous in American History."


8/27/2006 11:10 PM  
Anonymous Anonymous said...

[Meta: JUST SAY NO to comments longer than the post they're commenting on. Especially posts with links to another copy of the same comment. How annoying.]

In any case, Prof. Chen is right, with one qualification. Scalia is an undeniably smart guy, which makes it all the more nauseating to watch him do his disingenuousness thing - where he makes those transparantly bogus arguments he loves to make when he's pushing an agenda. A 10-year-old could read between the lines of that disclaimer, right? It's not subtle, at all. I would argue that it's always a bad move to criticize Scalia for stupidity - his problem is that he's got a terrible personality. :-)

10/25/2006 1:54 PM  

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