Wesley Elsberry's nit-picking pettifoggery

Wesley Elsberry (aka Herr Fuhrer Esley Welsberry -- pronounced "Velsberry," according to John A. Davison) , in responding to Casey Luskin's latest defense of the Discovery Institute report that charged Judge Jones with copying the Kitzmiller v. Dover opinion's ID-as-science section directly from the ACLU, said,

Response to Wesley Elsberry

Wesley Elsberry attacks me as if I implied the study applies to the entire Kitzmiller ruling.

Casey’s reasoning before was based on citing a ruling that was about a case where the entire decision was provided by the lawyers for one of the parties and signed by the judge, while the DI “study” only took into account one section. It was precisely because the DI study did *not* consider the whole decision that I found Luskin’s citation of Anderson v. Bessemer City to be inappropriate.

Copying is copying, whether it involves one section or the whole darn opinion. And the section that was copied -- the ID-as-science section -- was far from unimportant. Sheeeesh.

What we have here is a clear case of equivocation on Luskin’s part. The term being used in two ways is “judicial copying”. Even the citation given by Luskin shows that the Third Circuit thinks of “judicial copying” as something different than what Luskin then offers.

Third Circuit version of “judicial copying”: “verbatim adoption of a party’s proposed findings of fact and conclusions of law”

According to Luskin, the correct 3rd circuit citation is not "verbatim" adoption but is "verbatim or near verbatim" adoption (citing In re: Community Bank of Northern Virginia, 418 F.3d 277, 319 (3rd Cir. 2005)). Letting a judge evade a possible charge of improper copying by merely changing a few words or sentence constructions would be silly.

Luskin’s version of “judicial copying”, though, is broad enough to cover the current point of discussion, Judge Jones’s decision in Kitzmiller v. Dover Area School District. That means that Luskin is talking about a situation where the judge’s decision had about 38% of its text taken from proposed findings of fact.

Elsberry's 38% figure is for the whole opinion, but Luskin was talking about the ID-as-science section only. Elsberry's figures for that section were in the range 48-70%.

(Casey said) Moreover, I never denied that the case law I cite deals with entire rulings, but as I will argue, the policies underlying judicial disapproval of large-scale copying of entire rulings can be extracted and applied here.

I never asserted that Casey “denied” some property of his citation. Pseudo-aggrieved put-uponness noted; it isn’t very becoming, though.

"Pseudo-aggrieved put-uponness"? What in the hell is that? Also, Casey never asserted that Wesley asserted that Casey "denied" some property of the citation (that "property" being that the cases cited concerned entire rulings).

Then Elsberry goes on to quibble about differences in the results of arbitrary word-count programs:

My algorithm is much, much better and has no subjective component, and I only claim it as good to two significant digits. The section on whether ID is science is not “90.9%” due to the plaintiff’s proposed findings of fact. The actual figure as I calculated it is 66% . . . . . Even when I used more liberal parameters of 5 words in a run and up to 2 skipped words, the match level only rose to 70%.

Elsberry's own computerized word-count comparisons are inconsistent -- he gives figures varying from 48% to 70% for the ID-as-science section. As I said, the only way to determine the extent of the copying of ideas is by a side-by-side comparison of the meanings of the sentences and sentence combinations in the two documents. It may be possible to quantify the correlation by counting the percentage of sentences and sentence combinations in the Dover opinion's ID-as-science section that have counterparts in the plaintiffs' opening post-trial brief.

Furthermore, as I have said, the extent of Jones' copying of the plaintiffs' opening post-trial brief is not the only issue here, and IMO is not even the primary issue -- to me the primary issue is the fact that Jones ignored the other post-trial briefs: the defendants' opening brief and the plaintiffs' and defendants' answering briefs. Because of the great size and complexity of the case -- with hundreds of hours of testimony and thousands of pages of documents -- I don't have a big problem with extensive copying of the briefs.

Wesley Elsberry is crazier than the Mad Hatter in Alice in Wonderland.

The Kitzmiller decision is also discredited by Jones' remarks about "true religion" in his commencement speech at Dickinson college. Those remarks showed greatly hostility against organized religion and this hostility must have biased him against the defendants. However, I don't know if remarks that judges make outside of court are citable inside court.

The original Kitzmiller defendants (the ousted school board members) -- unlike the losing parties in the cases that Casey Luskin cited in support of the DI report, e.g., Bright v. Westmoreland County and U.S. v. El Paso Natural Gas Co. -- had no opportunity to appeal the case. As an unreviewed opinion of a single judge, the Dover opinion really needed to be flawless in order to have any precedential value. Instead, the Dover opinion and Judge Jones himself are riddled with flaws.

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Additions to link list

I have added the following websites to my link list in the left sidebar:

Reasonable Kansans

Post-Darwinist

National Center for Science Education

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"Crazy Ed" Brayton again

I fully expected that Darwinist critics of the Discovery Institute report charging Judge Jones with parroting the ACLU were not going to respond to Casey Luskin's latest defense of the report because they don't have a leg to stand on, but I was wrong -- Ed Brayton has finally responded, and inevitably Ed's response is full of crap. In a post titled Luskin Flogs a Dead Horse, Crazy Ed says,

I questioned the validity of the analogs you claimed between the cases you cited and the Kitzmiller ruling. Every single case you cite involves judges accepting one side's proposed findings of fact and conclusions of law wholesale -- that is, they adopted them and merely signed their name to them.

Which is exactly what Jones did in Kitzmiller -- the ID-as-science section of his opinion adopted the plaintiffs' proposed findings wholesale and he merely signed his name to them. He changed the wording around a little but the ideas remained the same.

In one case that you cite, the judge did this without even considering arguments from the other side.

There is no evidence that Jones considered the defendants' arguments when he wrote the ID-as-science section of the Kitzmiller opinion.

What your "study" leaves out is that the judge did not accept nearly half of the proposed findings;

So maybe when Ed was in school, he copied a paper from a book and when he was caught he tried to defend himself by saying, "but I didn't copy the whole book."

. . . .that alone means he exercised independent judgment on the validity of each finding of fact distinct from the others and that alone distinguishes it from the cases you cite.

That he did not copy some of the plaintiffs' proposed findings is not evidence that he exercised independent judgment on the plaintiffs' proposed findings that he did copy. And whether or not he "exercised" independent judgment is irrelevant -- what matters is whether he expressed independent judgment.

Analogical reasoning is only valid if the two things being compared are similar; in this case they are not.

Ed, if you had a mind, you would be completely out of it here. In the sense here, "analogical" by definition refers to a comparison between things that are partly dissimilar. The applicable definitions of "analogy" in Merriam-Webster's online dictionary are as follows: 2 a : resemblance in some particulars between things otherwise unlike . . . . b : comparison based on such resemblance." (emphasis added) Of course, it can sometimes be shown that one or more dissimilarities between two court cases make an analogy invalid, but you did not try to show that -- you only argued that an "analogy" between two court cases is automatically invalid if the cases are not virtually identical (it wouldn't even be an "analogy" if the two cases are virtually identical). Also, analogy is one of the foundations of the evolution theory that you love -- in evolution theory, analogy is called "homology."

They aren't even close.

They don't need to be close.

Ed tries to make his ideas look good by censoring comments and commenters that disagree with him. Some of the commenters on his blog are toadies who feel that they need to apologize for disagreeing with him -- for example, a comment on Ed's blog strokes his ego by saying,

Ed: I too have the highest respect for you, but I hope you will rethink some of what you have written.

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German proposal for EU-wide ban on Holocaust denial falters

A news article reported,

Germany's hope of using its EU presidency to persuade all 27 member states to make Holocaust denial a crime has received a setback in Italy and is expected to run into more resistance.

Berlin on Friday won moral support from the United Nations which adopted a resolution urging members to "reject any denial of the Holocaust as a historical event".

What "moral support"? So far as I can see, the UN resolution did not urge UN members to make Holocaust denial a crime. That UN resolution was introduced by -- guess who -- the good ol' USA, and the USA presumably would not urge other governments to do something that the USA's own constitution prohibits.

The USA is always criticizing and sanctioning other countries for civil rights violations but has a blind spot concerning denial of freedom of speech concerning the Holocaust.

The article says that Italy rejected -- as I noted in a previous post -- an express ban on Holocaust denial:

Hours before the UN resolution was passed, the Italian government published a draft law which proposes penalties of up to three years in jail for inciting racial hatred, but stops short of making Holocaust denial a crime.

Some 200 historians had voiced their objection, arguing that it would infringe on free speech, and Justice Minister Clemente Mastella failed to win support for a more explicit bill.

Germany had looked to Rome for support for its drive for a common EU law, saying the support of the new Italian government would leave "the road clear" for standardization.

A similar attempt by Luxembourg in 2005 was blocked by Britain, Denmark and notably Italy, where Silvio Berlusconi's centre-right coalition was still in power.

"Standardization"? Before you can have "standardization," you've got to have something to standardize, but currently only 10 of the 27 EU countries ban Holocaust denial. And unanimity is required for an EU-wide ban. And how would Italy's support for a ban "leave 'the road clear'" for "standardization"? A recent UK poll showed strong opposition to a ban -- 63 percent opposed and only (NOT!) 16 percent in favor. Also, Denmark, which allowed the publication of cartoons ridiculing the prophet Mohammed, is in a particularly bad position to support a ban on Holocaust denial. Moslems have already rioted in response to the cartoons. The article discusses other barriers to Germany's proposal.

The article says,

In Europe, only Austria, Belgium, France, Germany, Poland, Romania and Spain have laws that specifically target revisionism, leaving Berlin to convince 20 others to come on board by July.

According to this news report, Lithuania, Czech Republic, and Slovakia also ban Holocaust denial. That brings the total to 10.

Another news article says of Luxembourg's 2005 proposal,

The Luxembourg blueprint, which Germany is studying with a view toward copying it, says that racist declarations or Holocaust denial will not be prosecuted if they are expressed in a way that does not incite hatred against an individual or group of people.

Well, Luxembourg's proposal that "racist declarations or Holocaust denial will not be prosecuted if they are expressed in a way that does not incite hatred against an individual or group of people".is more reasonable. But I think that the general practice in the USA is the best -- hate speech in the USA is generally considered to be criminal only when it incites a mob to commit violence (a notable exception is the prohibition of the symbolic speech of cross-burning). Also, Holocaust revisionism could be considered to be an indirect accusation that Jews have fabricated Holocaust history and that by itself might in a stretch of the imagination be considered to be an incitement to hatred, so there is kind of a Catch-22 situation here. Most of the Holocaust-revisionist literature I have seen does not directly incite hatred. Holocaust-revisionist literature may be seen on the websites of the Institute for Historical Review and the Committee for Open Debate on the Holocaust (CODOH), which are probably the biggest Holocaust-revisionist websites.

This issue of European bans on Holocaust revisionism is also discussed here.

Comments about Germany's policies on Holocaust revisionism may be submitted on this contact form, on the website of the German Embassy in Washington, DC. The contact form almost treats California as a separate country -- Californians are not asked to identify their state but are asked to identify their counties -- LOL. For the subject of the comment, I recommend "German domestic policy" because even EU policy is somewhat of a domestic matter for Germany.

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Jewish attendees of Iran Holocaust conference persecuted

Sadly, a news article reported,

JERUSALEM (AP) - For decades, the Jewish community just barely tolerated a small, fiercely anti-Zionist sect as its members traveled the world, denouncing Israel's existence and embracing its enemies.

But when a delegation from Neturei Karta hugged Iranian President Mahmoud Ahmadinejad at a conference questioning the Holocaust last month, that was too much.

. . . "We know what we have done, we know the value of what we have done, and we think that in the course of time that will come out clearly," said Rabbi Ahron Cohen, a Neturei Karta member from Manchester, England.

When Cohen returned from Iran , he needed police protection. His house was barraged by hundreds of eggs, his window smashed by a brick and a billiard ball and he continues to be pelted with pebbles, eggs and insults in the street, he said.

Last week, two tires on his Volvo were slashed, he said, and his synagogue has closed its doors to him.

That's really a shame.

The article also says,

Neturei Karta say they never denied the Holocaust or its proportions.

That is not exactly true, because a news article (no longer available) reported that one of the Jewish attendees was a revisionist:

Rabbi Moshe David Weiss, one of six members attending from the group Jews United Against Zionism, told delegates, "We don't want to deny the killing of Jews in World War II, but Zionists have given much higher figures for how many people were killed."

"They have used the Holocaust as a device to justify their oppression," he said. His group rejects the creation of Israel on the grounds that it violates Jewish religious law.

The Anti-Defamation League's claims about Neturei Karta are so bizarre as to have little credibility. For example, on a webpage titled Neturei Karta: What is it?, the ADL says that "Characteristic Neturei Karta claims" include the following blood libels:

Zionists have purposely cultivated anti-Semitism throughout the world by issuing statements that non-Jews would find inflammatory and by staging fake acts of anti-Semitic violence as a means of inducing Jews to immigrate to Israel. The most extreme example of this is the claim that Zionists were complicit in the Holocaust in order to force Jews to flee from Europe to Palestine. Neturei Karta propaganda alleges that Zionists intentionally infuriated the German people and fanned the flames of Nazi hatred, and they helped the Nazis, with trickery and deceit, to take whole Jewish communities off to the concentration camps.

The Holocaust was justified as a divine punishment for the sin of Zionism.

I can feel the pain of these persecuted Jewish attendees of the Iran Holocaust conference because I feel that this blog has been hurt by bigotry towards my own Holocaust revisionism. For example, someone told me that he and others on his website wanted to cite this blog's material about the evolution controversy but were afraid to do so because of fear of being associated in any way with a Holocaust revisionist. I answered that this blog is not copyrighted and that anything in it may be used without attribution, but some people might still be afraid to use anything that others might connect to this blog. Making ad hominem attacks is of course a sign that one does not have any good arguments to make, but ad hominem attacks nonetheless continue to be made and too many people find them to be acceptable and persuasive. If I am discussing, say, the evolution controversy with someone, I don't care if that person believes, say, that the earth is flat -- I am only interested in that person's views about the evolution controversy.

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Italy rejects express criminalization of Holocaust denial

A news article says that a proposed Italian law against racial hate crimes stopped short of specifically declaring Holocaust denial to be a crime:

After lengthy negotiations, Italy’s center-left coalition government has approved Thursday a bill making racial hatred a crime and stiffening prison sentences for those found guilty of inciting racial hatred. But it makes no reference to Holocaust denial.

The decree, submitted by Justice Minister Clemente Mastella, received unanimous approval by the Romano Prodi’s government.

The decree, which was originally meant to bring Italy in line with European countries such as Austria, Germany, Spain, Belgium or France, makes no reference in its final draft to denial of the extermination of six million Jews during World War II.

It could have been much worse. The article continues,

Justice minister Clemente Mastella had initially proposed a law specifically targeting Holocaust denial but top coalition partners including education minister Fabio Mussi and culture minister Francesco Rutelli rejected the plan, saying education in schools was the solution rather than turning denial of the Shoah into a crime.

It instead reinstates a 1993 decree -- scrapped in 2006 by the previous conservative government of Silvio Berlusconi -- which punishes with up to three years in jail "anyone publicising theories of racial superiority" and with up to four years in prison "anyone committing or inciting to commit discriminatory acts for racial, ethnic, national, religious, sexual or gender motives."

The article then says,

Officials at the justice ministry said Thursday that magistrates will be key in interpreting the new law and establish whether denying the Holocaust can be considered a form of propaganda of racial hatred and thus be punished with a jail sentence.

Hopefully this new law -- if approved by the Italian Parliament -- will not be so broadly interpreted as to include Holocaust denial. The charge that Holocaust denial is inherently anti-Semitic is of course absurd but is nonetheless very commonly made.

The article adds,

The decree must now be approved by the Italian parliament before it becomes law.

The attempt to specifically criminalize Holocaust denial in Italy is also discussed here.

With Germany pushing for a Europe-wide ban of Holocaust denial and with Holocaust denial already criminalized in 10 of the 27 countries of the European Union, it is nice to see big European countries like Italy and Britain resisting jumping on the bandwagon of criminalization of Holocaust denial.

Ironically, criminalizing Holocaust denial, by implying that there is something to hide, backfires by giving credibility to Holocaust denial. An opinion piece says of bans on Holocaust denial,

Nor will today's anti-semitism be countered most effectively by such bans; they may, at the margins, even stoke it up, feeding conspiracy theories about Jewish power and accusations of double-standards. Citizens of the Baltic states, who suffered so terribly under Stalin, will ask why only denial of the Holocaust should be criminalised and not denial of the gulag. Armenians will add: and why not the genocide that our ancestors experienced at the hands of the Turks? And Muslims: why not cartoons of Muhammad?

Also, the proposed Italian law's ban on "publicising theories of racial superiority" is problematic. For example, under this ban, scientist William Shockley could have been jailed and the book "The Bell Curve" could be banned.

The USA has hate-crime laws too, but they mainly apply to acts of violence and incitement to violence.

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Casey Luskin rebuts critics of report charging that Judge Jones parroted ACLU

Casey Luskin of the Discovery Institute has written an article rebutting critics of a DI report that charged that the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion was virtually copied in its entirety from the plaintiffs' opening post-trial brief.

Here are some points I would like to make about Luskin's article:

(1) I think it needs to be emphasized that there were not just unanswered post-trial briefs in the Dover case -- the plaintiffs and the defendants filed both opening post-trial briefs and answering post-trial briefs that rebutted each other's opening post-trial briefs. Yet the ID-as-science section of the opinion was virtually copied from just the opening post-trial brief of the plaintiffs.

(2) IMO, Jones' extensive copying is somewhat excusable because (1) he is not a scientist and (2) the case was very big and complex, with hundreds of hours of testimony and thousands of pages of documents. However, the one-sidedness of the opinion -- with virtually all of the ID-as-science section copied from just the plaintiffs' opening post-trial brief -- is not excusable.

(3) The argument that the defendants' arguments were too weak to justify an answer in the Dover opinion just does not hold water. If the defendants' arguments were weak, then Judge Jones had all the more reason to include them in the opinion in order to refute them.

(4) Casey Luskin wrongly stated, "Wesley Elsberry attacks me as if I implied the study applies to the entire Kitzmiller ruling (And Wesley asserts that only 38% of the whole ruling was taken from the plaintiffs' finding of fact)." As this comment shows, Elsberry did not say or imply that the DI study applies to the entire Kitzmiller ruling. Also, Elsberry gives wording-comparison figures of between 48% and 70% for the ID-as-science section of the Kitzmiller ruling.

(5) The DI report's wording-comparison figure of 90.9% is backed up by side-by-side comparisons of statements in the Dover opinion and the plaintiffs' opening post-trial brief. Wording-comparison figures can be misleading because (1) different computer programs give different wording-comparison figures and (2) two statements may differ greatly in wording but have the same meaning. The arbitrariness of these wording-comparison programs is described as follows by Elsberry:

. . .the 70% figure is obtained when I use liberal criteria of runs of words 5 words long or longer, with up to 2 words skipped or inserted at a time. It is 66% when I use more conservative criteria of runs of words 10 words long or longer, with up to 4 words skipped or inserted at a time.

The above criteria may show that the ideas in two texts are similar but cannot show that the ideas in two texts are not similar, because -- as I said -- two statements may differ greatly in wording but have the same meaning. The only way to fully appreciate the striking similarity between the ACLU brief and the Dover opinion's ID-as-science section is to read the corresponding statements side-by-side as shown in the DI report.

Also, I am glad to see that Casey took Ed "for crying out loud" Brayton to task. I am really pissed off at that jerk Ed for arbitrarily kicking me off his blog. Casey wrote,

Response to Ed Brayton
Ed Brayton also wastes time distinguishing the facts of Kitzmiller from other cases, even though I'm simply using those cases to establish the policy that large-scale judicial copying is disapproved. Brayton seems to operate under the ludicrous assumption that two cases must be identical in order for the principles involved to apply. As already noted, no two cases have identical fact patterns, so trying to demand as such indicates ignorance of how the legal process works. Brayton apparently does not realize that one can look at cases with different fact patterns and principles which can be extended to apply to new, different fact patterns. This happens all the time in the law, and such legal reasoning is called reasoning by example, or reasoning by analogy, and it is often used to apply the underlying policies which guide courts in their rulemaking to new fact patterns. (emphasis in original)

Casey shows that Tim Sandefur also used the above fallacious reasoning of Ed Brayton. Casey said, ". . . it is pointless for Sandefur to imply that two cases must have identical facts for the policy reasoning in one case to bear upon another case."

Here are some examples of "Crazy Ed" Brayton's nitpicking and hairsplitting pettifoggery:

Even your "study" does not claim that Jones copied his opinion verbatim, only a portion of the findings of fact specifically, and the ruling you cite clearly and explicitly says that it was not talking about findings of fact. That is dishonest citation, Casey.

Findings of "fact"? Have you forgotten, Ed, that evolution is just a theory and not a "fact"?

Ed also claimed that the following cases are not comparable to Kitzmiller:

In one case, the judge announced that he would not write an opinion at all and simply adopted the entire proposed opinion from one side without even looking at the arguments from the other side. In another, the judge adopted the entire opinion without any comment at all.

What Jones did was much worse than what those other judges did -- the other judges at least made it clear that they were copying or uncritically adopting one side's views whereas Jones did not. It took nearly a year for the Discovery Institute to discover that the ID-as-science section of Jones' opinion was virtually copied from the plaintiffs' opening post-trial brief.

Ed continued,

Judge Jones did not do any of those things. He picked out those findings of fact that were supported best by the evidential record and incorporated them, either verbatim or rephrased, into his ruling. He left over half of the proposed findings alone and did not use them as the basis for his ruling; that alone tells you that he made an independent judgement about which proposed findings were accurate and which were not.

"Independent judgment"? The ID-as-science section of the Dover opinion shows no evidence that Jones even read any post-trial brief other than the plaintiffs' opening post-trial brief.

BTW, in the following statement, Ed made the incredibly stupid argument that Judge Jones did not one-sidedly adopt the ACLU's proposed findings on the ID-as-science issue just because he adopted only some of the ACLU's proposed findings on that issue:

. . . there were numerous findings of fact in the plaintiffs' briefs that he did not accept and did not incorporate into the ruling, about 30% of the total findings of fact on that particular question. Clearly, then, Judge Jones did not merely "adopt one side's proposed findings verbatim."

In conclusion:
Casey Luskin and the original DI report were only arguing the following points: the kind of copying that Jones did is (1) frowned upon by the courts and (2) hurts the precedential value of the Dover opinion. Those points were not refuted by the critics.

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UK, Canada polls show widespread skepticism about official Holocaust history

The results of a recent UK opinion poll on the Holocaust show that significant minorities reject or question official Holocaust history and that a majority are opposed to criminalizing Holocaust denial. An article on the poll said,

Asked whether the Holocaust was a “myth”, “had happened but its scale had been exaggerated”, or that “six million Jews had been killed”, 28 per cent of 18- to 29-year-olds responded that they did not know. And the overall percentage of people who answered that they did not know was 17 percent.

1,132 people from around Britain were surveyed for the poll which was published in last weekend’s Jewish Chronicle newspaper.

. . . . Just one per cent of the overall survey of 1,132 people thought the Holocaust was a myth, and only four per cent believed that the extent of the atrocities had been deliberately exaggerated by Jewish or pro-Israel groups.

While Germany last week said it was aiming to make Holocaust denial a Europe-wide offence, only 16 per cent of respondents agreed, with 63 per cent specifically coming out against it.

Though a majority of respondents were against criminalizing Holocaust denial, I find it disturbing that only 63 percent were against it and that 16 percent were in favor of it. Also, I am disappointed that only 4 percent believe that the Holocaust was exaggerated, but find it encouraging that 28 percent of 18-to-28-year-olds are skeptical of official Holocaust history.

Other commentary on the above poll is here.

An earlier UK poll (January 2004) showed the following results in response to the statement, "The scale of the Nazi Holocaust against the Jews during the Second World War has been exaggerated":

Agree strongly -- 10%
Tend to agree -- 4%
Neither agree nor disagree -- 9%
Tend to disagree -- 8%
Disagree strongly -- 62%
Don't know -- 6%

The above results show significant minorities rejecting or questioning official Holocaust history.

An article on a poll of British Muslims said,

NOP also found a tendency for British Muslims to believe some, well, strange things. 45% thought that 9/11 was a conspiracy between the USA and Israel. 36% thought that Princess Diana was murdered to stop her marrying a Muslim. . More seriously, only 29% thought that the holocaust occured, 2% denied it happened entirely, 17% think it was exaggerated (which is the stance proposed by most of today’s holocaust deniers), 24% said they had “no opinion” and 23% didn’t know what the holocaust was. (emphasis added)

Canada is a country that persecutes and prosecutes holocaust deniers -- Canada jailed Ernst Zundel and deported him to his native Germany, knowing that the Germans would arrest him. A 2005 Canadian opinion poll asked the unprompted question, "Approximately how many Jews were murdered by the Nazis during World War II?", and got the following responses, with only 23 percent giving the most commonly accepted official figure of 6 million and 34 percent answering "don't know" or refusing to answer (page 4):

Under 100,000 -- 4%
100,000-500,000 -- 5%
500,000-999,000 -- 3%
1-5 million -- 18%
6 million -- 23%
More than 6 million -- 10%
Otner non-numeral answer -- 3%
{UNPROMPTED] Don't know/Refused -- 34%

The above poll is also discussed here. The above poll used a relatively small sample size, 454 respondents. I think that a sample size of about 1000 is considered to be about the best compromise between (1) limiting sample size to keep costs down and (2) limiting the margins of mathematical sampling error.

Unfortunately, I have been unable to find a reliable poll of Americans' opinions on the Holocaust -- see Confusing and inconsistent polls about the holocaust. I wonder why.

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Fundies, the ACLU, and establishment clause lawsuits

Ed "For-crying-out-loud" Brayton, in defending the exorbitant attorney fee awards given to winning plaintiffs in establishment clause cases, is fond of pointing out that fundies also collect attorney fee awards in 1st amendment religion cases. But I have asserted that the fundies normally sue under the free exercise and/or free speech clauses and not under the establishment clause, so fundies have little or nothing to lose -- and a lot to gain -- from a ban or cap on attorney fee awards in establishment clause cases (the "Public Expression of Religion Act," HR 2679 and S 3696 in the last Congress, would ban attorney fee awards in establishment clause cases). The fundies have a lot to gain by a curb on these awards because government entities are often intimidated by the prospect of an exorbitant attorney fee award rip-off in an establishment clause lawsuit. This is an example of how Crazy Ed just can't think straight. My assertion that fundies normally do not file establishment clause lawsuits is supported by information in a website with the odd title, "The ACLU fights for Christians":

The ACLU fights just as hard for INDIVIDUAL free exercise of religion as the ACLU fights against GOVERNMENT endorsement, sponsorship, or establishment of religion. Despite this fact, many people spread misinformation about the ACLU around the internet, innocently and maliciously, falsely claiming the ACLU is anti-religion or anti-Christian.

This list of FACTS counteracts that misinformation. These links represent just a few of the many examples of the ACLU defending the free speech and free exercise rights of Christians (for purposes of this list, the word “Christian” means a person who self-identifies as “Christian”).

In every example, the ACLU is defending the right of a Christian to speak as a Christian or to practice Christianity.

Here is the current version of this EVER GROWING list:

(over 30 examples of the ACLU defending or supporting the free exercise or free speech rights of fundies and other Christians)

(capitalization in original, bold added)

So none of the examples are establishment clause lawsuits and the webpage does not claim that the ACLU supports fundies in any establishment clause lawsuits. There are two possible explanations here -- either the fundies normally do not file establishment clause lawsuits, a likely explanation, or the fundies file the kinds of establishment clause lawsuits that the ACLU does not support, an unlikely explanation.

Also, two of the possible reasons why the ACLU takes these fundy cases are to (1) make money and (2) prevent the attorney fee awards from going to fundy organizations. Also, the ACLU often opposes the fundies on establishment clause issues. I think that many fundies' attitude about ACLU help in free exercise cases is, "thanks for nothing."

Incredibly, the Darwinists have been arguing that the $1 million attorney fee award to the Dover plaintiffs was a "bargain" or "merciful" because the original calculated bill was over $2 million. However, the plaintiffs' legal representatives unnecessarily did several things which greatly drove up the costs:

(1) The plaintiffs had an excessive number of attorneys of record, 9-10, with at least five of them in the courtroom on every day of the six-week trial.

(2) There was a large number of plaintiffs' expert witnesses, six. Though these witnesses worked for free, their inclusion greatly drove up the costs of the trial.

(3) Two or three of the five attorneys from the Pepper-Hamilton law firm were partners. These partners possibly asked for above-average pay rates in computing the bill. Though all attorneys are expected to do some pro bono work, I think that it is highly unusual for partners to take such a long case on a pro bono basis.

IMO, instead of a ban on attorney fee awards in establishment clause lawsuits, there should be a cap on attorney fee awards in both establishment clause and free exercise lawsuits. Some of my opinions in this matter are in the following posts on this blog:

Answer to ACLU letter opposing S 3696 (HR 2679)

Ed Brayton still lying about HR 2679

Ed Brayton's post about the "The ACLU fights for Christians" website is here.

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Important Nazi records were never opened to Holocaust researchers

We have long been told that official Holocaust history has been based to a great extent on "meticulous" Nazi records. However, a news article reported that some important Nazi records were never opened to Holocaust researchers! The article said,

AMSTERDAM, Netherlands (AP) - Eleven nations controlling a long-secret archive of Nazi documents will hold an unscheduled meeting to assess how quickly the files can be opened to researchers, officials said Wednesday.

The informal meeting, to be held in The Hague in early March, will set the stage for the annual session two months later of the International Commission, the decision-making body that supervises the massive storehouse of concentration camp records and other Nazi material in the German town of Bad Arolsen.

. . . . . The archives, set up by the Allies after World War II, have been sheltered from public scrutiny for 60 years, except for use by the Red Cross to trace missing people after the war, and later to validate victims' compensation claims. The records contain 17.5 million names.

. . . . The International Committee of the Red Cross has run the tracing service since 1955, under an agreement among the 11 countries - Germany, the United States, Israel, the Netherlands, Belgium, Britain, France, Greece, Luxembourg, Poland and Italy.

. . . . . For nearly a decade, the group had wrangled over objections that disclosure would violate the privacy of some victims. The breakthrough came last year when Germany softened its opposition.

. . . . Technical experts met at Bad Arolsen in September and will meet again in February to discuss the logistics of transferring digital copies of the files -- estimated at 50 million pages -- to the archives of any of the 11 countries that wants one. So far, about 63 percent of the files have been scanned or digitized.

Good night.

The lame excuse for keeping the records secret was that disclosure would violate the "privacy" of some victims. Ironically, key opposition to previously opening the records came from Germany, where Holocaust revisionism is a crime.

Also, the volume of material is astonishing -- 50 million pages. It is incredible that the Nazis recorded and saved so much material about their alleged crimes.

Also, what happened to all the IBM Hollerith punched cards which according to the book "IBM and the Holocaust" recorded much of the Nazi data?

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Ed Brayton's strange arguments

In a post titled Steve Fuller's Strange Arguments, Ed "for crying out loud" Brayton responds to an old (Nov. 14, 2005) article by Steve Fuller that was a guest post on someone else's blog. Fuller was an expert witness for the defendants in the Kitzmiller v. Dover trial. Ed's post says,

(Fuller said)The US has always had a 'difficult' relationship with religion because of the traumatic origins of the nation. The original British settlers, especially in what became the liberal northern establishment, were wealthy dissenters (including Catholics and Jews) who were prohibited from political participation in their homeland. Henceforth, all attempts to impose a religious orthodoxy would be prohibited -- in the name of protecting religious freedom, of course.

Absolutely baffling. The original British settlers, especially in the north, were theocrats who were bothered that someone else had beaten them to the punch of establishing an official religion in England that wasn't theirs. England at the time was an Anglican theocracy and they wanted a Calvinist one, which is exactly what they set up when they got here, and Catholics and Jews were persona non grata. Religious freedom did not come until well over a century later.

Both Fuller and Brayton are off-base here. It is true that the Puritans of Massachusetts were noted for their religious intolerance, but in 1636, less than a decade after the Puritans founded the Massachusetts Bay Colony, Roger Williams founded the Rhode Island colony on the basis of religious freedom. Even Judaism was tolerated in Rhode Island -- a Jewish congregation was established there in 1658. Pennsylvania, founded in 1681, also had religious freedom. Anyway, it is wrong to attribute our culture to just what happened in colonial times.

Ed's post said,

(Fuller said)Thus, Kitzmiller v. Dover Area School District, the trial in which I testified, is classed as a civil rights case.

Only in the broadest sense of the word, in the sense that all cases involving a provision of the Bill of Rights are called civil rights cases. But Kitzmiller was an establishment clause case specifically, which means it does not require that someone's civil rights have been violated, only that the government, in this case the school board, has acted outside its constitutional authority.

Nitpicking again, Ed. The establishment clause does involve a "civil right" of individuals -- the right to not have one's religious sensibilities offended. And the federal law that was the basis of the attorney fee award in Kitzmiller is called the "Civil Rights Attorney's Fees Award Act of 1976."

Ed's post said,

(Fuller said) The legal response has been characteristically thuggish.

Notice there is no argument here, only an ugly insult.

The ACLU was of course "thuggish" because that is part of its job. This thuggery of litigants' legal representatives is generally known as "zealous advocacy" -- an extreme example is here. But the big problem in the Dover case was that the judge was thuggish too. Examples of the judge's thuggery are the following: (1) The ~6000-word ID-as-science section of the opinion was virtually copied from the plaintiffs' post-trial opening brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' post-trial answering briefs; and (2) his denial of the intervention motion of the publisher of Of People and Pandas, followed by his thorough trashing of the book in his written opinion.

Ed, post said,

(Steve said) The intellectual content of the ACLU's case against ID is largely based on fears about a right-wing religious takeover of the US school system.

This is utter nonsense. The plaintiff's case in Kitzmiller did not require any such argument, nor was one made.

Wrong. Defense expert witness Barbara Forrest did make that argument, particularly in discussing the so-called "wedge strategy."

Ed's post said,

(Steve said) Nevertheless, the ACLU's eagerness to pursue cases like Kitzmiller, especially given all the other civil rights violations in the US, reflects a profound lack of faith in the wisdom of elected local school boards to resolve these matters.

And pray tell, why should anyone have any such faith in the wisdom of elected local school boards?

And pray tell, Ed, why do you have faith in the "wisdom" of the Dover Area school board's failure to repeal the intelligent design policy prior to judgment to try to avoid payment of an attorney fee award to the plaintiffs? Apparently the only unbiased professional legal advice that the board got was to repeal the ID policy immediately. No, Ed, the opinions of the judge and the old board's defense attorneys -- who wanted to appeal the case -- on this matter were not unbiased. And contrary to your statements, the plaintiffs' attorneys declined to comment on this matter (they were biased anyway) and there was no evidence that the board's newly rehired solicitor gave the board any official legal advice on this matter. Sheeeeesh.

Ed said,

All it required was that this particular policy be found unconstitutional, regardless of whether any other school anywhere followed their example.

Then why did the Dover decision go well beyond what was necessary to find the Dover policy to be unconstitutional?

Ed said,

Why would we give credence to someone to make a judgment on what ought to be taught in a science classroom if they know little or nothing about science? We don't put medical diagnoses up for a vote of the public, nor do we take straw polls to decide what is wrong when our car doesn't work, we defer to the judgment of those trained in medicine or auto mechanics because they have a far better chance of actually knowing what they're talking about.

Ed, you seem to have pretty strong opinions in favor of Darwinism. What are your scientific credentials?

And you obviously have not heard of "shade tree" auto mechanics -- people who are not professional auto mechanics but who do a lot of their own work on their cars.

Ed's post said,

(Steve said)In this respect, the US provides a wonderful experimental environment for educational alternatives. Yet, this has not prevented an ingrained paranoid reaction to the slightest whiff of religion in the schools that serves, unwittingly, to stultify the spirit of free inquiry.

More nonsense. Those who advocate intelligent design are entirely free to do what scientists have always done when their ideas conflict with the consensus and are rejected by mainstream scientific opinion; they are free to do the hard work necessary to prove that consensus wrong.

Basically, the judge banned ID from public-school science classrooms on the grounds that it is a religious concept, not on the grounds that it is bad science. There is no constitutional separation of bad science and state. String theory has also been called bad science, but would a judge ban string theory from public-school science classrooms?

Ed said,

There have been many revolutions in science where a dominant theory was replaced by a "radical, innovative" new theory that was initially rejected by mainstream scientists; in not a single one of those situations was it required that they be taught in schools prior to their acceptance as an "affirmative action strategy" to provide recruits to help develop the theory.

The Dover school board's ID policy did not require that ID actually be "taught" in the Dover schools. Also, I presume that physics' string theory, which is not widely accepted, is actually taught in advanced physics courses in colleges and universities. Exactly what degree of acceptance in the scientific community must a theory achieve, Ed, before that theory may be taught -- or just mentioned -- in public-school science classes? How would that degree of acceptance be measured?

Ed said,

Indeed, his argument logically requires the same be done for each and every fringe idea in science, from the geocentrists to the flat earthers to the hollow earthers to the Raelians to Van Daniken's pyramidiocy to UFO cults and who knows what else.

Whenever the issue of critical analysis of evolution in public schools is raised, the Darwinists always bring up the shopworn straw-man arguments about flat-earth theories, astrology, alchemy, etc..

For someone who claims to be an expert on the Dover case, Ed, you have shown a lot of ignorance about the actual facts of the case, e.g., saying that the plaintiffs' arguments did not have a fundy conspiracy theory (there was one -- Barbara Forrest's) and implying that ID was actually taught in the Dover schools. I predict that unless you shape up soon, your forthcoming book about the case is going to be a colossal flop.

As I said, it is obvious why Ed kicked me off his blog -- he can't stand to have a commenter there who tells the truth.

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USA drafts UN resolution condemning Holocaust deniers

Sadly, a news article reported,

The United States intends to introduce a U.N. resolution on Tuesday condemning deniers of the Holocaust, a document aimed at a conference in Iran last year dominated by delegates who questioned the extermination of 6 million Jews by the Nazis in World War Two.

By implying that there is something to hide, the use of censorship and ad hominem attacks in fighting holocaust revisionism backfires by tending to give credibility to holocaust revisionism.

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John West and Larry Arnhart debate Darwin-to-Hitler issue

John West, a Senior Fellow of the Discovery Institute, wrote,

Political science professor Larry Arnhart, author of the book Darwinian Conservatism, is probably the most thoughtful and articulate proponent of Darwinism as a support for conservatism. My recent book Darwin’s Conservatives: The Misguided Quest is largely framed as a response to Arnhart's arguments. I appreciate how seriously Arnhart takes the debate over the implications of Darwin’s theory, and also how committed he is to a civil discussion.

In A Further Response to Larry Arnhart, pt. 4: Darwinism, Capitalism, and Limited Government, West wrote,

Arnhart argues that Darwinism provides support for limited government, and he attempts to disassociate Darwin’s theory from the utopian crusades of “Social Darwinism” such as eugenics. Indeed, he argues that Charles Darwin is unfairly blamed for eugenics and that “much of what has been identified as social Darwinism... is a distortion of Darwinian science.” However, in my book I show how Darwin himself in The Descent of Man provided the rationale for what became the eugenics movement, and how the vast majority of evolutionary biologists early in the twentieth century were right to see negative eugenics as a logical application of Darwin’s theory. In his response, Arnhart continues to insist that eugenists and other Social Darwinists “were not really acting out of a clear and accurate understanding of Darwinian science” and contends that blaming Darwinism for Social Darwinism is tantamount to claiming that “Christianity was responsible for Hitler’s anti-Semitism because Martin Luther’s anti-Semitism was often cited by the Nazis.” The Luther comparison is inapt. Martin Luther was not the founder of Christianity, and so any claims he may have made are not necessarily authoritative interpretations of the Christian tradition. But Charles Darwin was most certainly the founder of his own theory. So if Darwin himself provided a logical rationale for eugenics in his writings, it is hard to see how others can be accused of “distorting” his teachings in their embrace of negative eugenics. Moreover, the fact that virtually all leading evolutionary biologists in the first part of the twentieth century embraced eugenics on Darwinian grounds should make one think twice about claiming that eugenics was simply a distortion of Darwin’s theory. (emphasis added)

For starters, I think that West's statement, "Martin Luther was not the founder of Christianity, and so any claims he may have made are not necessarily authoritative interpretations of the Christian tradition," is nitpicking. Luther was not the founder of Christianity, but he was certainly the founder of Lutheranism, a denomination of Christianity. And Arnhart is wrong, too -- Europe's long history of anti-Semitism was partly based on Christianity.

Columbus has been blamed for Custer, which is a lot more far-fetched than blaming Darwin for Hitler. A link between Darwin and Nazism is indisputable, however tenuous that link may be. At least three books -- described here, here, and here -- have been written linking two or more of the following: Darwinism, Social Darwinism, eugenics, and Nazism. Also, a recent TV program linked Darwin to Hitler. Either these books and the TV show are just full of lies or there is some link between Darwinism and Nazism. The founders of Social Darwinism -- e.g., Herbert Spencer, Francis Galton (considered to be the founder of eugenics), Thomas Huxley, and Ernst Haeckel -- were influenced by Darwin. The Nazis were influenced by American eugenics programs. The Carnegie Institution's Department of Genetics was formed in 1920 by the merger of the Eugenics Record Office and the oddly titled "Station for Experimental Evolution." It is believed that William Jennings Bryan's anti-Darwinist activism was based on his opposition to Social Darwinism. Of course, none of this means that Darwinism itself is bad.

Arnhart's statement that "these 'social Darwinists' were not really acting out of a clear and accurate understanding of Darwinian science," even if true, would not sever the link between Darwin and Hitler. To claim that there is no link between Darwin and Hitler is simply disingenuous.

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The filthy-rich ACLU

The American Civil Liberty Union, which sued the Dover Area and Cobb County school districts over evolution disclaimers in the public schools, has been moaning that a proposed ban on attorney fee awards in establishment clause cases (HR 2679 and S 3696 in the last Congress) would cause hardship for the organization. However, the fact is that the ACLU is so filthy-rich that it would hardly even notice the effect of such a ban. An article in The Nation magazine said of ACLU's executive director Anthony Romero,

Many current board members vociferously insist that Romero's mistakes must be viewed in the larger context of his accomplishments, which are indeed impressive: He doubled the size of the full-time staff in the ACLU's national office, from 186 to nearly 400; he raised staff salaries; he lifted the ACLU's membership from 300,000 to 550,000; he nearly doubled both the total revenue of the ACLU and the net assets of the ACLU Foundation; he brought in new support from foundations; and he launched a TV series.

Imagine -- a full-time staff of nearly 400 in the national office alone! Also, the ACLU's lawsuits often get free legal help from outside attorneys. And in the Dover lawsuit, volunteer attorneys from the Pepper-Hamilton law firm did most of the work but ACLU and Americans United for Separation of Church and State pocketed all of the profits, about $750,000 (the $1 million attorney fee award minus about $250,000 in expenses).

Ed "for crying out loud" Brayton is fond of pointing out that the fundies also collect these attorney fee awards in 1st amendment religion lawsuits -- but the fundies usually sue under the free exercise clause (and sometimes the free speech clause) and almost never sue under the establishment clause.

As an alternative to a ban on attorney fee awards in establishment clause lawsuits, I have proposed a cap on attorney fee awards in both establishment clause and free exercise clause lawsuits.

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Judge Jones said, "some of my colleagues . . . think I'm crazy"

The Denver Post reported that Judge John E. Jones III, the infamous judge who decided the Kitzmiller v. Dover case, said at an annual meeting of the Anti-Defamation League in Denver in June,

Some of my colleagues ... think I'm crazy. I hope you'll see other judges follow my lead.

Imagine what some of his colleagues must think of him now, after the Discovery Institute has revealed that most of the approximately 6000-word ID-as-science section of his Dover opinion was virtually copied from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs.

The Denver Post article also said,

Judges are imperfect and should be taken to task, Jones said. "That's what the appeals process is for."

But Jones knew beforehand that an appeal in the Dover case was unlikely because of the changeover in the Dover school board membership. Also, his above statement insinuates that he thinks that the only proper place for criticism of a judicial decision is an appeal of that decision. Furthermore, Jones has complained that criticisms of his Dover decision made no attempt to illuminate the issues of the "role of precedent, how judges work, [and] the Rule of Law," as though those issues were relevant to the criticisms.

The Denver speech was at least the second time in just a few months that Judge Jones was a speaker at an ADL meeting -- he also spoke at the ADL's national executive committee meeting in February in Palm Beach, Florida.

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Iranians protest Holocaust conference

A recent news report said,

In a statement to be published next week, more than 100 Iranian activists outside that country have condemned its recent conference questioning the Holocaust.

The statement, which began circulating last month, is to be printed next week in The New York Review of Books. The Associated Press recently obtained a copy.

. . . . .The statement notes that the activists signed notwithstanding their "diverse views on the Israeli-Palestinian conflict."

. . . .The two-day conference in December brought together well-known Holocaust deniers and others who have said the Nazi genocide has been blown out of proportion.

. . . . Some Iranians outside Iran have avoided publicly condemning the conference because they were concerned about being viewed as pro-Israeli -- one reason the statement avoids taking sides on the Israeli-Palestinian conflict, said Ladan Boroumand, a historian who began circulating the statement.

An older news report said,

A Conference of the world's most prominent Holocaust deniers opened in Iran yesterday amid international condemnation and protests by dozens of Iranian students, who burned pictures of president Mahmoud Ahmadinejad and chanted "death to the dictator".

. . . . Welcoming the participants, Manouchehr Mottaki, the foreign minister, said: "The aim of this conference is not to deny or confirm the Holocaust. Its main aim is to create an opportunity for thinkers who cannot express their views freely in Europe about the Holocaust."

It is a shame that at least so far as the Holocaust is concerned, Iranians have freedom of expression whereas many Europeans do not. In 10 of the 27 countries in the European Union, you can be imprisoned for Holocaust revisionism, and Germany is proposing a possible 3-year prison term throughout the EU. In contrast, Iran apparently has no penalty for advocacy of mainstream Holocaust history.

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Update on quarrel over age of Grand Canyon

In a January 16 press release, an organization called Public Employees for Environmental Responsibility (PEER) is still complaining about the sale of a creationist book in stores in Grand Canyon National Park. PEER did not apologize for falsely charging that the National Park Service instructed the park's staff to not comment about the geologic age of the canyon.

The Jan. 16 PEER press release said,

“Our only point is that the Park Service should stop selling the book with a government seal of approval,” stated PEER Executive Director Jeff Ruch. “Nonetheless, we are delighted that the Park Service has, after three years, finally chosen to publicly and unambiguously acknowledge that the Grand Canyon is the product of evolutionary geologic forces.”

"Evolutionary geologic forces"? What in the hell is that? And how does selling the book in privately-run stores imply "a government seal of approval"? Also, the PEER press release said that the NPS expressly denied endorsing the book:

The statement [by David Barna, NPS Chief of Public Affairs] adds, “Since 2003 the park bookstore has been selling a book that gives a Creationist view of the formation of the Grand Canyon, claiming that the canyon is less than six thousand years old…We do not use the Creationist text in our teaching nor do we endorse its content.”

The January 16 PEER press release said,

Why did the Park Service approve it for sale? Under agency rules, park officials are only to allow display materials of the highest accuracy and which support approved park interpretive themes in its bookstores.

Wrong -- NPS rules do not require that books in park stores support approved park interpretive themes. An earlier (Dec. 28) PEER press release said,

Ironically, in 2005, two years after the Grand Canyon creationist controversy erupted, NPS approved a new directive on “Interpretation and Education (Director’s Order #6) which reinforces the posture that materials on the “history of the Earth must be based on the best scientific evidence available, as found in scholarly sources that have stood the test of scientific peer review and criticism [and] Interpretive and educational programs must refrain from appearing to endorse religious beliefs explaining natural processes.”

The above quotation is a quote mine. The above quotation is followed immediately by the following statement in the NPS Director's Order #6 (Rule 8.4.2):

Programs, however, may acknowledge or explain other explanations of natural processes and events.

Also, "Rule 9.4 Concessioners" of Director's Order #6 says,

The NPS will review concessions programs and written materials to ensure that the information they contain is accurate, appropriate, and related to park themes, applying the same standards used to evaluate NPS interpretive and educational services. (emphasis added)

So the sale of the book in park stores does not violate any NPS rules.

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Another example of the Jew-identification problem

I have argued that a "systematic" Jewish holocaust was impossible because the Nazis had no reliable way of identifying Jews and non-Jews. Another example of this difficulty of identifying Jews is that a Virginia state legislator did not know that the delegate seated next to him in the legislative chamber is Jewish:

When Englin sat, Hargrove reached over and softly patted Englin on the arm. Then, Hargrove rose to speak and, looking down at his seatmate, said, "I didn't even know you were Jewish, I had no idea of what your religion, (and) I don't care what your religion is."

A related post on this blog is here.

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Some Jews love Darwinism because they hate Christian fundies

This blog has previously noted that some Jews and Jewish organizations are strongly opposed to any criticism of Darwinism. Jews and Jewish organizations have often been co-plaintiffs and submitted supporting amicus briefs in lawsuits against teaching or even mentioning criticisms of Darwinism in the public schools. And Abraham Foxman, head of the Anti-Defamation League, bitterly denounced a TV program about Social Darwinism's influence on Nazism. I assert that the reason for many Jews' fanatical love of Darwinism is their hatred of Christian fundies. These Jews associate anti-Darwinism with the Christian fundies' efforts to break down the separation of church and state and turn the USA into a "Christian" nation. A Time article gives the following description of paranoid Jewish hatred of Christian fundies:

In early November 2005, the Prime Minister of Iran stated his intention to wipe Israel off the map. At almost exactly the same time, leaders of the American Jewish community declared war on the Christian Right.

Abe Foxman, head of the Anti-Defamation League, issued the first call to arms. The Jews, he said, faced an organized, sophisticated coalition of enemies. He described as "openly arrogant" the supposed Evangelical goal: "To Christianize us, to save us!" Within a few weeks, Rabbi Eric Yoffie, leader of the liberal Reform Movement, America's largest Jewish denomination, and Rabbi James Rudin of the ultra-establishment American Jewish Committee, reprised Foxman's complaint.

Never before in U.S. history had Jewish leaders shown such bold hostility toward Evangelical Christians, the largest Protestant community in America and, by most measures, the most philo-Semitic and pro-Israel. In normal times, this would be paradoxical. In an age of jihad it was dangerously perverse.

. . . . . .The Democratic party, with its many Jewish activists, has traditionally supported Israel. But the Republicans have no such ethnic affinity. It is the Evangelicals, major stakeholders in the G.O.P., who have made it a bastion of pro-Israel and pro-Jewish sentiment.

This blog has the following related articles:

Culture war over "Darwin and Hitler" is in full swing

Jewish IDism

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More on Internet censorship

Here are the latest news and ideas:

New hacker's tool for fighting Internet censorship

This is a follow-up to this post. The psiphon hacking program was supposed to be available on December 1, but the psiphon website now says that the user guide will be released in March. I don't think that the program is of much use without the user guide.

Blogging awards

As I said before, one of the biggest problems with Internet censorship is that they don't just ban you, but they also ban your ideas. To change that situation requires changing the whole Internet culture -- and one of the best ways to help change the Internet culture is by changing the criteria for giving blogging awards.

The Panda's Thumb and PZ Myers' Pharyngula blogs proudly display logos for blogging awards that they have received. Two less-deserving blogs could hardly be imagined. How in the hell a blog that is not an open forum can get a blogging award is beyond me. Organizations that make these blogging awards should have some minimal standards for the finalists in regard to censorship of comments:
(1) No arbitrary censorship -- censorship allowed only for comments that are extremely offensive, harassing, etc.
(2) No IP address blocking (blog services should not even offer IP address blocking)
(3) Comment moderation feature must be turned off
(4) No cutoff of comment threads
(5) No "bathroom walls" (Panda's Thumb's term) -- off-thread places for dumping undesired comments
(6) No registration required to post comments (registration procedures often cause problems even where censorship is not an issue).

Also, the awarding organization should have a censorship complaints department.

Ed Brayton's blog

Not only is Ed crazy (maybe I should call him "Crazy Ed" -- I can't decide what to call him), but some of his commenters are crazy too. "Dan," a law teacher who is a friend of Ed's, began a polite on-topic comment with the following statement:

Ed: I'm not sure if this is the direction you want this thread to move in; if not, feel free to delete this.

Now that is the most abject, kowtowing, groveling, bootlicking, brown-nosing statement that I have ever seen on the Internet. It just goes to show the mindset of a lot of the people who comment on Ed's blog. BTW, "Dan" is the jerk who responded with nothing but invective in an answer to my argument that FRCP Rule 12 gives judges the authority to dismiss cases where the plaintiffs reject offers of out-of-court settlements that would provide relief equal to or greater than the maximum relief that could be provided by the court. It was at that time that Crazy Ed banned me permanently from his blog.

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Germany proposes Europe-wide ban of Holocaust revisionism and Nazi symbols

A news article reported,

Germany intends to introduce a Europe-wide law banning the display of Nazi symbols and making denial of the Holocaust a crime to fulfil its “historical obligation” 62 years after the liberation of Auschwitz.

Brigitte Zypries, the Justice Minister, will today outline plans to punish with up to three years in prison anyone in the European Union who publicly rejects the Nazi slaughter of six million Jews.

. . . . Laws banning the denial of the Holocaust already exist in 10 of the 27 EU states and Latvia and Estonia ban the display of communist symbols.

Enough is enough. The USA should impose economic sanctions on these countries that deny freedom of expression. Private boycotts of products of these countries would also be in order. I was disappointed to see France on the list of European countries that ban holocaust revisionism -- I have bought a lot of French-made bicycle equipment over the years.

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Kenyan fundies demand censorship of hominid fossils and statue of hominid evolution

A three-page news article reports that Kenyan fundies are demanding that hominid fossils and a statue of hominid evolution be removed from a museum in Kenya. This blog has related articles here, here, and here.

Christian fundies have a lot of clout in Africa -- probably even more than in the USA. For example, the influence of Christian fundies is one of the reasons for the extreme homophobia in Nigeria.

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Update on Museum of Unnatural History

The update is here. My original article is here.

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ID and the Purpose Prong: Ed Brayton's Stupidity on Display

Some time ago, I posted an article titled Another legal scholar says that Dover decision was too broad , which is about an article -- written by Philip Italiano -- in the Rutgers Journal of Law and Religion. Ed "For crying out loud" Brayton (my new nickname for him is one of his favorite expressions) has just now posted a negative response to Italiano's article. The title of Ed's article, "ID and the Purpose Prong: Hypocrisy on Display," was the inspiration for the title of this article.

Ed took issue with the Rutgers article's argument that Judge Jones should not have ruled on the scientific merits of ID in the Kitzmiller v. Dover case. Before getting into that, though, I want to discuss a minor point that Ed raised. Ed, quoting Italiano's article, said,

Today's Lemon test provides that a government sponsored message violates the Establishment Clause of the First Amendment if: 1) it does not have a secular purpose, and 2) its principal or primary effect advances or inhibits religion.

There is a third prong as well, requiring that the policy not create "excessive entanglement" between church and state, but that prong is irrelevant to this case (and to most cases, frankly).

The district court opinion of Selman v. Cobb County said,

Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them. . . . . In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single "effect" inquiry. (citations omitted)

However, the appeals court decision that vacated and remanded Selman erroneously spoke of the third prong as though it still existed in the 11th circuit. Also, in her concurring opinion in Lynch v. Donnelly, Justice O'Connor said that the entanglement prong should be limited to institutional entanglement:

In this case, as even the District Court found, there is no institutional entanglement. Nevertheless, the respondents contend that the political divisiveness caused by Pawtucket's display of its creche violates the excessive entanglement prong of the Lemon test. . . . . In my view, political divisiveness along religious lines should not be an independent test of constitutionality.

Although several of our cases have discussed political divisiveness under the entanglement prong of Lemon, * * * * we have never relied on divisiveness as an independent ground for holding a government practice unconstitutional. . . . . .The entanglement prong of the Lemon test is properly limited to institutional entanglement.

So much for the minor point about the 3rd (entanglement) prong of the Lemon test -- now on to the important stuff. Ed said of Italiano's article,

. . . . . .he provides no analysis at all of the obvious differences between Epperson and Kitzmiller, the most important of which is that in Epperson there was no alternative theory to consider at all.

What in hell does that have to do with the question of whether the purpose prong was alone sufficient to decide the case?

Ed said,

. . . .the Edwards court in fact did exactly what Judge Jones did, considered the question of whether the alternative to evolution being advanced was a scientific theory or a religious idea, determined that it was religious, and declared the endorsement of that idea by a public school to be unconstitutional.

Wrong. The courts in Edwards v. Aguillard did not do exactly what Jones did, and astonishingly Ed quotes and ignores what the courts did differently in Edwards and why. Ed quoted from the Supreme Court's Edwards opinion,

"The District Court did not err in granting summary judgment upon a finding that appellants had failed to raise a genuine issue of material fact. Appellants relied on the 'uncontroverted' affidavits of scientists, theologians, and an education administrator defining creation science as "origin through abrupt appearance in complex form" and alleging that such a viewpoint constitutes a true scientific theory. The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law." Pp. 594-596

So in Edwards, no oral or written expert witness testimony was allowed. In contrast, there was about three weeks of expert witness oral testimony in Kitzmiller and there were also several expert witness reports, even though the situation in Kitzmiller was the same as it was in Edwards: none of the expert witnesses nominated for the Kitzmiller case had "participated in or contributed to the enactment" of the ID policy and so could "not illuminate the contemporaneous purpose" of the school board when it enacted the ID policy.

The key difference between Edwards and Kitzmiller is that the Court in Edwards was only considering the legitimacy of a motion for summary judgment, not doing a review of a full trial court decision.

The "key difference" between Kitzmiller and the Edwards decisions that Ed is talking about here is that Kitzmiller was a district court decision whereas the Edwards decisions were at the appellate and Supreme Court levels, so Kitzmiller was not a review of another decision whereas the Edwards decisions were.

Italiano also ignores the basic role of a district judge. A district judge's goal is not to be overturned by a higher court, which means not giving either side grounds for appeal. And that means allowing both sides to present the strongest possible case for their position. In this case, both sides made the question of the nature of ID the key component of their case.

For crying out loud, Ed, a judge does not have to decide something just because both sides ask him to. I thought that the judge was supposed to be the great big honcho here. If two opposing parties ask a judge to decide whether string theory is right or wrong, would he be obligated to decide?

As for your statement that a district judge's goal is "not to be overturned by a higher court," judges often risk a remand by ruling on narrow grounds. For example, a precedent might prescribe the following sequence of tests for "dormant commerce clause" cases and also specify that the sequence is to stop as soon as one of the tests is failed:
(1) does a state burden on interstate commerce exist?
(2) is the burden intentional or incidental?
(3) does the burden serve a compelling public interest?
(4) is there an absence of less-burdensome alternatives?
According to some precedents, the judge is supposed to end the sequence of tests as soon as a firm decision is reached, regardless of whether the judge thinks that the decision can be strengthened by continuing the tests. For example, if a court firmly decides that a burden on interstate commerce does not serve a compelling public interest, there is no need to determine whether there are any less burdensome alternatives, is there? Look at it this way. Supreme Court CJ John "Ump" Roberts says that judges are like umpires, so here is a baseball analogy: if a batter flies out, the batter does not also need to be forced out at first and tagged out too.

Ed says,

Now, having debunked this argument I want to focus on the clear hypocrisy of the ID movement in promoting it. The hypocrisy is this: for years creationists and IDers have been arguing that the purpose prong of the Lemon test is constitutionally dubious, unfair to religious voters and should be done away with. Now, when it's convenient for them, they're suddenly arguing that the courts should consider only the purpose prong and nothing else.

Only a profoundly retarded nitwit like Ed Brayton would see an inconsistency between (1) opposing the purpose prong and (2) trying to take advantage of the purpose prong so long as the courts insist on using it.

Also, anti-ID legal scholar Jay Wexler also said that Jones should not have ruled on the scientific merits of ID, and to my knowledge Ed never said anything about that.

It is no wonder that Ed won't let me post on his blog -- he can't stand to have a commenter who tells the truth.

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Intelligent design forces scientists to confront weaknesses of Darwinism

One of the classic arguments against intelligent design is that it is a "science stopper" -- that pro-ID scientists, when confronted with something that they cannot readily explain, just throw up their hands in despair and say "goddidit." However, far from being a "science stopper," intelligent design (as well as other criticisms of Darwinism) advances science by forcing scientists to confront weaknesses of evolution theory. While the two-faced Darwinists scoff at ID as pseudoscience, they make long, highly technical arguments against it, as in this Panda's Thumb post about a research paper by Douglas Axe. If it were not for ID, this research paper and the accompanying debate might not even exist. In the Kitzmiller v. Dover case, 85 scientists filed an amicus brief urging Judge Jones to not rule on the scientific merits of ID. As we know, Jones ignored them and went on to make a complete fool of himself by giving an ID-as-science ruling that he virtually copied from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs (Jones has been criticized just for his extensive copying, but IMO the one-sidedness of his ID-as-science ruling is much worse than his extensive copying, which I can excuse because of the great volume of material in the case).

Also, it is not clear how Dr. Axe himself views the question of whether or not his paper supports ID. The author of the Panda's Thumb post, Arthur Hunt, says near the bottom,

Acknowledgements:
Thanks to the efforts of the PT crew, and particularly Ian Musgrave, who helped me keep this on topic. Also, many thanks are due to Douglas Axe, who graciously helped me with early drafts of this essay. Please note that all of these ideas are mine, and I make no claim that any of these thoughts represent Axe’s views. (emphasis added)

Though Hunt makes no claim that his post represents Axe's views, the fact that Axe helped him write the post suggests that Axe at least partially agrees with Hunt's view that Axe's paper does not support ID. However, according to a post by Casey Luskin in Evolution News & Views, Axe gave the following unpublished response to a reporter from New Scientist magazine:

I have in fact confirmed that these papers add to the evidence for ID. I concluded in the 2000 JMB paper that enzymatic catalysis entails "severe sequence constraints". The more severe these constraints are, the less likely it is that they can be met by chance. So, yes, that finding is very relevant to the question of the adequacy of chance, which is very relevant to the case for design. In the 2004 paper I reported experimental data used to put a number on the rarity of sequences expected to form working enzymes. The reported figure is less than one in a trillion trillion trillion trillion trillion trillion. Again, yes, this finding does seem to call into question the adequacy of chance, and that certainly adds to the case for intelligent design.

Also, I am wondering how Luskin found out about the above response if it was not published.

Also, Luskin's article claims that the pro-ID Discovery Institute funded Axe's research, raising a question as to the impartiality of Axe's research paper. The Discovery Institute has been criticized for funding PR and not research, but this question of impartiality is a good reason why DI should not fund research.

Anyway, I don't think that Hunt's post is going to affect most people's views about ID. The post is too esoteric for most people -- even including many biologists -- to thoroughly understand, and even if one understands it, the author's word would have to be taken for a good part of it.

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Hypocrites at Pander's (sic) Thumb complain about censorship on Uncommon Descent

An article on the Panda's Thumb blog complains about censorship on the Uncommon Descent blog. Those lousy hypocrites over at Panda's Thumb have some nerve. Though my comments on others' blogs have generally been polite, on-topic and not frivolous, I have been deleted and banned on Panda's Thumb and on the personal blogs of Panda's Thumb bloggers Ed Brayton, PZ Myers, and Wesley Elsberry. Uncommon Descent of course practices censorship too, but at least UD does not make any bones about it, and UD, unlike Panda's Thumb, does not get blogging awards -- PT received a 2005 Scientific American magazine blogging award and was a finalist in a 2006 contest for the best science blog. One of the ugliest practices over at Panda's Thumb is moving comments to a website called "The Bathroom Wall," where the comments are forgotten and ignored. "The Bathroom Wall" is just a gimmick the PT bloggers use to pretend that they are not practicing arbitrary censorship when they really are.

The name should be changed to Pander's Thumb -- a blog that panders to Darwinists who like to keep a thumb on critics.

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Reasons for not blindly following the founding fathers

Originalist crackpots like Judge John E. Jones III and Ed Brayton just dive straight into pontificating about the founding fathers' thoughts while assuming that everyone agrees that we should be blindly following the founding fathers' thoughts. That is putting the cart before the horse.

Here are some of the many reasons why we should not blindly try to follow the founding fathers' thoughts when interpreting the Constitution:

(1) Commonly held views and principles change over the years. The Founders would not have been happy living under all of our principles, so why should we be happy living under all of theirs?

(2) After more than two centuries, the thoughts of the Founders -- particularly the lesser-known Founders -- are difficult or impossible to discern. There is often no consensus today about the thoughts of individual Founders.

(3) The founding fathers often disagreed sharply. Which founding fathers should we follow?

(4) Many big constitutional issues today, such as abortion, environmental protection, and freedom of expression on the Internet, were not even on the radar screens of the founding fathers. Consider environmental protection, for example. When current CJ John "Ump" Roberts was an appeals court judge, he actually argued that Congress had no authority to protect a particular species of toad because that toad lived in only one state and hence was not covered by the interstate commerce clause. As for abortion, Congress has absurdly tried to use the commerce clause as a basis for a law prescribing prison terms for bus and taxicab drivers who transport underage females across state lines for the purpose of evading state parental consent or notification laws concerning abortions.

(5) There were glaring omissions in the Constitution. For example, the general rule prohibiting states from burdening interstate commerce is not in the Constitution (!) -- this rule is sometimes called the "dormant commerce clause." The courts knew that giving the states carte blanche to burden interstate commerce would result in chaos, so the courts just invented the "dormant commerce clause" out of thin air. Our Constitution would not have survived so long with comparatively few changes if there had there not been great flexibility in constitutional interpretation.

(6) A lot of the Constitution cannot be interpreted literally. For example, the first amendment says that "Congress shall pass no law . . . . abridging freedom of speech." Interpreted literally, this clause would not apply to written and symbolic expression and state and local governments.

(7) The people did not have a chance to vote on the individual provisions of the Constitution (not to mention that popular views have changed greatly with time) -- the Constitution was just presented to the states for ratification as an all-or-nothing package deal. When ratifying the Constitution, some states said that they reserved the right to secede from the union.

(8) The Founders were not all-wise and all-knowing -- they were merely people who happened to be in the right place at the right time. If the War of Independence had failed, they would just be footnotes in history.

A lot of myths have been created about the Founders. For example, the Founders have been presented as a bunch of Voltaires and Rousseaus. However, I don't know of any prominent Founder who was a professional philosopher -- the Founders were generally lawyers, merchants, farmers, judges, bankers, etc..

It is unfortunate that so many prominent people in the field of law are members of the Federalist Society, which is dedicated to the worship of the founding fathers. I predict that this worship of the founding fathers is going to produce a backlash.

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