Merry Kitschmas: Darwinists still crowing about Kitzmiller decision

Five years later, Darwinists are still crowing about their Pyrrhic victory in the Kitzmiller v. Dover case. So far as I know, never before has so much weight been given to the opinion of a single judge. Furthermore, Judge Jones is a crackpot activist judge who said in a Dickinson College commencement speech that the decision was based on his cockamamie notion that the Founders based the Establishment Clause upon a belief that organized religions are not "true" religions -- here is what he said:

. . . . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

There is no way that the above interpretation can be derived from the Establishment Clause, which says, "Congress shall make no law respecting an establishment of religion." Ironically, when Judge Jones gave the commencement speech, he was standing behind the Dickinson College seal -- designed by USA Founders Benjamin Rush and John Dickinson -- containing a picture of an open bible and the Latin-language Dickinson College motto which translates, "Religion and learning, the bulwark of liberty."

Unfortunately, the speech is no longer posted on the Dickinson College wesite.

In contrast to their harping on the Dover decision, the Darwinists have been mostly silent about the Comer decision. That is not too surprising -- in the Comer case, all four federal judges who heard the case -- the district court judge and the three appeals court judges -- ruled against Chris Comer. The Comer decisions showed that there is a limit to how far judges are willing to go in opposing criticism of evolution in public schools. Now we have the "Comer trap" in addition to the "Dover trap"! LOL

READ MORE

Judge Jones is hypocritical about "judicial independence"

It may seem hard to believe, but five years after the Kitzmiller v. Dover ruling, Judge John E. "Adolf" Jones III is still on the lecture circuit. Here is a recent lecture by Jones hypocritically titled, "From Scopes to Kitzmiller and beyond: lessons in judicial independence." I know that this lecture is recent because Jones said that the Kitzmiller trial testimony had concluded five years previously (my, how time flies). I say that the lecture was hypocritical because his blatant chumminess with the Kitzmiller plaintiffs' representatives -- e.g., plaintiffs' expert witness Barbara Forrest and plaintiffs' attorney Richard Katzke -- is not consistent with the idea of "judicial independence."

Judge Jones has falsely characterized criticism of his decision as just an issue of "judicial independence" -- as I have previously pointed out, some of his biggest critics have been Darwinist, atheist, or neutral.

READ MORE

Darwinists still missing the point regarding the "plagiarism" charges against Judge Jones

On Panda's Thumb, Timothy Sandefur writes,

Y’all remember how, years ago, Casey Luskin and the boys were calling Judge Jones a plagiarist because the final decision in Kitzmiller drew a lot of language from the briefs? I pointed out at the time that, well, that’s what briefs are for. Now here’s an article in Political Research Quarterly that uses software to find that even the U.S. Supreme Court draws a lot of language from the briefs filed by the parties in any particular case,

But the "plagiarism" charges against Judge Jones were not based on just the copying, but were based on the extreme one-sidedness of the copying. Larry Moran, a hardline Darwinist himself, summed it up nicely:

Any junior clerk could have copied the material in a single afternoon, making some minor changes of wording. This is not a case of picking and choosing from both sides and writing a summary that incorporates a few phrases here and there. It's wholesale copying, the order is the same and entire paragraphs are copied for 34 pages.

Ironically, Sandefur also says, "For most of us, it’s nice to know that court opinions show the judges actually read the briefs." On the contrary, the Kitzmiller opinion shows no evidence that Judge Jones actually read the ID-as-science sections of the defense briefs, because the opinion did not quote or cite those sections, directly or indirectly.

I think that a major reason for the one-sidedness in the Kitzmiller opinion was that Judge Jones felt fairly safe in ignoring the defense briefs' arguments because an appeal was not expected because of the changeover in the school board membership.

READ MORE

Kitzmiller decision violated Federal Rules of Evidence

Casey Luskin said,

During the Dover trial, plaintiffs’ expert witness, biologist Kenneth Miller, testified that he presented Judge John E. Jones with “more than three dozen scientific studies showing the origin of new genetic information by these evolutionary processes.” The plaintiffs’ attorneys, working with the NCSE, successfully convinced Judge Jones to parrot Miller by stating in the Kitzmiller v. Dover ruling that Miller had “pointed to more than three dozen peer-reviewed scientific publications showing the origin of new genetic information by evolutionary processes.”

Federal Rules of Evidence Rule 803(18) says,

Learned treatises: To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (emphasis added)

The above publications presented by Ken Miller were apparently "received as exhibits" instead of being "read into evidence," in violation of the above FRE rule (what Miller did is sometimes called "bibiliography bluffing"). This rule was also violated when a stack of publications was dumped in front of defendants' expert witness Michael Behe.

The scientific questions in the case should have simply been declared to be "non-justiciable." A question is considered to be non-justiciable when there is a "lack of discoverable and manageable standards for resolving the question" (Vieth v. Jubelirer).

READ MORE

Even atheists and Darwinists have attacked Dover decision

Judge "Jackass" Jones and his supporters want you to believe that all the critics of his Kitzmiller v. Dover decision are holy-rolling, bible-pounding fundy-type creationist crackpots. However, that decision has recently come under heavy criticism from two atheists, Thomas Nagel [link] {link] and Bradley Monton [link]. Previously, the Dover decision was criticized by three Darwinists: Jay Wexler and J. Scott Turner [link], because they felt that Judge Jones should not have ruled on the issue of ID-as-science, and Larry Moran [link], who agreed with the opinion's ID-as-science section but was disturbed that it was merely copied nearly verbatim from the plaintiffs' opening post-trial brief. I certainly don't agree with all the views of these atheists and Darwinists, but I am happy that their criticisms of the decision are a source of great embarrassment to Judge Jones and his supporters.

READ MORE

Proposed principle of "judicial objectivism": Judges should try to avoid basing judicial opinions on personal opinions

JUDGE "JACKASS" JONES, POSTER CHILD OF JUDICIAL ACTIVISM

=================================================

My proposed principle of "judicial objectivism" is that judges should try to avoid basing decisions on their own biased personal opinions and should try to use reasoning that is so airtight that no reasonable person could find fault with it. I call it "judicial objectivism" to distinguish it from the general philosophy of "objectivism" and the "objectivism" of Ayn Rand in particular, though my "judicial objectivism" is related to those other philosophies' idea that there are truths or realities that are independent of individual perceptions. IMO the principle of "judicial independence" is actually harmful when it encourages -- as it did in the case of Judge "Jackass" Jones -- judges to base their decisions on their own biased personal opinions. Judges should have the humility to recognize that their personal opinions, even if valid, might be in disagreement with one or more other valid opinions. This proposed principle of "judicial objectivism" -- like my proposed principles of "non-justiciability" and the "compelling reason" test for non-literal interpretations of the Constitution -- is aimed at eliminating or reducing the courts' arbitrariness, capriciousness, "activism," and "legislating from the bench."
.
"Opinion," like "theory," is a term that has a technical definition that differs from the everyday, colloquial definition. The technical definition of "opinion" in the law is, according to my Webster's New World Dictionary, Third Collegiate Edition, "the formal statement by a judge, court referee, etc. of the law bearing on a case." One of this dictionary's colloquial definitions is: "(1) a belief not based on absolute certainty or positive knowledge but on what seems true, valid, or probable to one's own mind, judgment." In comparing "opinion" to several synonyms, the dictionary also says, "opinion applies to a conclusion or judgment which, while it remains open to dispute, seems true or probable to one's own mind . . ." My "judicial objectivism" idea is aimed at eliminating or reducing the openness to dispute. As for "theory," maybe the Darwinists should hire process servers to serve process on governments in lawsuits charging that the government officially uses the term "evolution theory" even though the technical meaning of "theory" is different from the colloquial or everyday meaning.

The statement "ID cannot uncouple itself from its creationist, and thus religious, antecedents," in the conclusion section of Judge Jones' Kitzmiller v. Dover opinion, is a good example of a statement that violates this principle of judicial objectivism, because reasonable people can easily find fault with that statement. For example, many reasonable people believe that ID "uncouples" itself from creationism by strictly using only scientific arguments and avoiding religious sources. For example, intelligent design can be defined as the scientific study of the extent to which some living things appear to be designed rather than appearing to be a product of unintelligent causes, or can be defined as a scientific determination of the probability that living things could have arisen solely from natural genetic variation and natural selection.

IMO a good example of a ruling that satisfies "judicial objectivism" is the ruling in Romer v. Evans that particular groups of people cannot be barred from seeking the aid of the government, which Colorado's Proposition 2 did in effect (Proposition 2 prohibited all laws and regulations aimed at protecting homosexuals from discrimination). The majority opinion said,

Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

There was a lot of moaning and groaning that the courts, by striking down a proposition approved by the voters, had overturned the "will of the people," but IMO there is no reasonable argument against the above reasoning. The only counterargument that dissenting justice Antonin Scalia could raise was the feeble argument that this reasoning appears (in his opinion) to be new:

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.

Well, Antonin, there is a first time for everything, and the next time the principle is raised you certainly won't be able to argue that "[t]he world has never heard of such a principle."

I find other arguments of the majority to be unpersuasive -- for example, the majority said that Proposition 2 shows animus against homosexuals. But a lot of legitimate government laws and regulations arguably show animus -- for example, laws against gay marriage arguably show animus against homosexuals.
.

READ MORE

Judge Jones' constitutional interpretation fails proposed "compelling reason" test

Judge "Jackass" Jones' "true religion" interpretation of the Constitution's establishment clause fails a new test that I am proposing, which I call the "compelling reason" test. I am defining this test as follows: when a constitutional interpretation cannot be derived explicitly or implicitly from the language of the Constitution, such an interpretation is valid only if it serves a truly compelling purpose. An example of such an interpretation is the prohibition on shouting "fire" in a crowded theatre -- such a prohibition is not explicit or implicit in the freedom of speech clause. I am using the word "interpretation" here very loosely, since the word usually means an explanation or clarification of the meanings of some words but here there are no words to interpret -- I am using the word "interpret" in the second sense given in the AOL's online dictionary: " 2. to conceive in the light of individual belief, judgment, or circumstance : construe." I also propose the following rules: (1) the "compelling reason" test should not be strictly applied to constitutional interpretations that are not used as the basis for a court decision, and (2) the test should apply only to general principles and not to how those principles apply to a specific situation (IMO there should be some allowance for differences of opinion as to how a "compelling reason" principle applies in a specific situation). I propose this "compelling reason" test for the purpose of helping to reduce arbitrariness, capriciousness, subjectivity, and general "activism" and "legislating from the bench" in judicial opinions. Judges are merely told that they should not be "activists" or should not "legislate from the bench," without being given a set of principles or guidelines that they should follow to avoid those things.

As I noted above, an example of a judicial principle that satisfies the "compelling reason" test is the famous prohibition on shouting "fire" in a crowded theatre. This prohibition cannot be expressly derived from the freedom of speech clause of the 1st amendment but is obviously necessary for compelling reasons. Another example of a judicial principle that satisfies the "compelling reason" test is the so-called "dormant commerce clause." The Constitution grants Congress the power to impose burdens on interstate commerce but does not expressly prohibit the states from imposing such burdens without the permission of Congress, so the courts, realizing that allowing states an unrestricted right to burden interstate commerce would result in chaos, invented a "dormant commerce clause" which denies such an unrestricted right. Another judicial principle of the courts allows -- for truly compelling reasons -- exceptions to the dormant commerce clause.

Judge Jones' "true religion" interpretation of the establishment clause fails this proposed test -- the interpretation cannot be derived from the language of the establishment clause, and there was no compelling reason for the interpretation, even if it is supposed that maintaining the separation of church and state is truly compelling. Judge Jones showed extreme prejudice against intelligent design and the Dover defendants by saying in a Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions [link]:

Ironically, but perhaps fittingly for my purposes today, we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Unfortunately, the original speech is no longer posted on the Dickinson College website.

Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto, in Latin, which translates, "religion and learning, the bulwark of liberty." Also, Judge Jones has claimed that the work of judges is "workmanlike," but there is nothing workmanlike about his "true religion" interpretation of the establishment clause.

Believe it or not, some trolls -- Kevin Vicklund and others -- claimed that I misinterpreted Judge Jones' above statement. But no statement could be clearer --"church" and "Bible" represent organized religions, and Judge Jones said that "true religion was not something handed down by a church or contained in a Bible." Under the principles of Social Darwinism, these trolls would be euthanized to protect themselves and others from the possible consequences of their own stupidity, or at least would be sterilized to prevent them from transmitting their mental defectiveness to future generations.

Law professor Robert Tsai, in a post on the Volokh Conspiracy blog, comments about his book Eloquence and Reason:

Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision. Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted. Judges have always played a role in this social process, even if theirs is rarely the last word on a subject. There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.

"Eloquence and Reason" examines historical episodes in which activists, lawyers, and presidents such as FDR and Ronald Reagan worked to dislodge reigning constitutional ideas and reshape our understandings of free speech and religious freedom . . . .

A second episode has to do with the Anti-Establishment Clause. The “wall of separation” metaphor appeared as part of an official post-war strategy to keep the peace. As originally conceived, Justice Black’s version of the boundary idea conveyed liberalism’s commitment to equal respect, to the protection and empowerment of religious minorities, and to guaranteeing a strong state uncorrupted or divided by religious strife.

Over time, these connotations were consciously reconfigured through litigation, activism, and the electoral process. Through a process of composition, reaction, adaptation, and dissolution, the wall of separation began to acquire negative connotations. Those outside of the courts began to say that the wall signified hostility or discrimination, oppression of religious minorities, and a state weakened by the alienation of its citizens. Eventually judges endorsed this way of describing the wall of separation, shunning it as a trope and divorcing it from their analyses of the controversies that arose.

The title of the book, "Eloquence and Reason," is a misnomer -- what the book criticizes is not reasonable or eloquent (of course, it would be hard to be both unreasonable and eloquent).
.

READ MORE

Judge "Jackass" Jones should be disqualified

Judge John E. "Jackass" Jones III should be retroactively disqualified from deciding the Kitzmiller v. Dover case. The Kitzmiller decision has little precedential value to begin with, but the whole decision should just be declared to be null and void. It was bad enough when Judge Jones said in a Dickinson College commencement speech that the decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. But now Judge Jones is scheduled to participate in a five-person panel discussion titled, "Overcoming Resistance to the Reality of Evolutionary Change in Nature." What is worse, Jones is scheduled to receive the 2009 President's Medal from one of the two sponsors of the panel discussion, the Geological Society of America (the other sponsor is the Paleontological Society). What stronger indications of bias are possible? Also, Judge Jones has many times broken his pledge to not speak about the Kitzmiller case directly.

The title of the panel discussion, "Overcoming Resistance to the Reality of Evolutionary Change in Nature," is of course very condescending. And the announcement for the discussion again shows that the Darwinists overestimate the importance of religion and underestimate the importance of the scientific evidence as factors that cause many people to question evolution theory:
.

. . . . less than 40% of Americans are convinced of the reality of biological evolution. In one study, 31% of respondents said that humans and other living things have existed in their present form since the beginning of time.

These studies show that a majority of Americans accept or deny evidence of evolution, geologic processes and the age of the Earth to the extent that they can be reconciled with their religious or other core beliefs. All too often many people, including scientists, accept what they want to believe about the world.

Jerry Coyne is right -- in twenty-five years, the Darwinist cafeteria Christians and their accommodationists have not made a dent in the size of the Darwin-doubting percentage of the public.

A few definitions:

Darwinist Cafeteria Christians: These Darwinists believe that evolution and religion are compatible. These Darwinists take the gospel literally but expressly reject the bible's more credible creation story (the creation story is fairly straightforward whereas the gospel is full of illogic, inconsistencies, ambiguities, and unintelligibility). Examples are Ken Miller and Francis Collins.

accommodationists: Darwinists who are not Cafeteria Christians but who have a policy of coddling them. Examples are the National Center for Science Education, NCSE director Eugenie Scott, and Chris Mooney.

new atheists: These atheists refuse to accommodate Darwinist Cafeteria Christians. Examples are PZ Myers, Jerry Coyne, Richard Dawkins

Thoughts for the day:

If those who teach Darwinism and evolution, as applied to man, insist that they are neither agnostics nor atheists, but are merely interpreting the Bible differently from orthodox Christians, what right have they to ask that their interpretation be taught at public expense?

-- William Jennings Bryan link

Unfortunately, some theologians with a deistic bent seem to think that they speak for all the faithful. . . . . The reason that many liberal theologians see religion and evolution as harmonious is that they espouse a theology not only alien but unrecognizable as religion to most Americans.

-- Jerry Coyne in the New Republic magazine link
.

READ MORE

The breathtaking inanity of Kitzmiller v. Dover

The Kitzmiller v. Dover case is in the news again. Southern Methodist University recently held a series of events concerning the case. The first lectures and a panel discussion are apparently very one-sided, with only supporters of the decision:

The programs begin Sept. 24 with a 10 a.m. reception and 10:30 a.m. lecture at DeGolyer Library, featuring Paula Apsell (right), senior executive producer, and Melanie Wallace, senior series producer of NOVA's documentary, "Judgment Day: Intelligent Design on Trial" . . . . .

A panel discussion on legal, ethical and journalistic issues surrounding the making of the film will follow from 7 p.m.-8:30 p.m. in Caruth Auditorium, Owen Arts Center. Panelists will include Judge Jones, documentary producers Apsell and Wallace, plaintiff's council Eric Rothschild and Lauri Lebo, author of The Devil in Dover.

BTW, Judge Jones, who was scheduled to appear in the above panel, only recently was a featured speaker at Bridgewater College (Sept. 17).

Another SMU panel discussion appears to be more even-handed -- it includes an attorney from Liberty Legal Institute, which looks like it would disagree with the decision:

On Sept. 25, from 10-11:30 a.m., First Amendment issues will get closer scrutiny in a panel discussion at SMU's Dedman School of Law. Jones, Rothschild (now in private practice), Liberty Legal Institute attorney Hiram Sasser and Dedman School of Law Professor Lackland Bloom will trade ideas and opinions in Karcher Auditorium, Storey Hall.

Also, the 3quarksdaily blog has an article that is highly critical of the Kitzmiller opinion.
.
The Kitzmiller decision has received far more attention -- and certainly far more praise -- than it deserves. It is, after all, just a decision of a single judge and is binding only upon a small school district. And much worse, it is a decision of a crackpot judge who is the poster child of activist judges. The Kitzmiller opinion is a piece of junk, not the masterpiece that the Darwinists claim it is. Kitzmiller was decided over three years ago and we really need to get the opinions of other judges, but no such opinions are on the horizon. And I have seen cases stalled in the lower courts for three years or more -- examples are Caldwell v. Caldwell and Association of Christian Schools Intl. v. Stearns. The best chance to get other opinions was lost when the Cobb County school district took a dive by settling out of court in Selman v. Cobb County -- the school district was actually in a very strong position because the appeals court panel indicated that it was leaning towards reversal before the panel remanded the case because of missing evidence. New court cases would also give us an opportunity to apply what we have learned from the mistakes that the plaintiffs made in the Kitzmiller case.

Judge Jones showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Kitzmiller decision was based on his cockamamie notion that the Founders based the Constitution's establishment clause upon a belief that organized religions are not "true" religions -- he said,

. . . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

He ruled that evolution is compatible with religion, a question that is completely inappropriate for judges to answer -- the opinion said,

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.

The question of the compatibility of evolution and religion is non-justiciable. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards for resolving the question.” Vieth v. Jubelirer, 541 U.S. 267 (2004).

He arrogantly assumed that he knows the answers to questions that have perplexed generations of scientists and philosophers. He dodged the crucial question of whether ID serves the genuine secular purpose of encouraging critical thinking:

Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. . . . .The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.

Judge Jones contradicts himself here -- why would the IDM (intelligent design movement) not have a goal to encourage critical thought if, as Jones accepted for the sake of argument, introducing ID to students will encourage critical thinking? And Jones nowhere states an opinion on whether ID encourages critical thiniking.

Without stating exceptions, he said that critics of the Kitzmiller decision had no respect for "judicial independence" and "the rule of law" (some of the opinion's biggest critics are hardcore Darwinists Jay Wexler and Larry Moran). And the whole Kitzmiller decision is badly tainted because Judge Jones likely showed a lack of restraint because an appeal of the decision was not expected because of the changeover in the school board membership. For example, the opinion's ID-as-science section was copied virtually verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and both sides' answering post-trial briefs -- it is doubtful that Jones would have done this had he anticipated an appeal, for then the opinion would have gone to the appeals court with no answers to the defendants' points about ID-as-science. The opinion is best described by the words it used to describe the defendants -- "breathtaking inanity."
.

READ MORE

Judge "Jackass" Jones is still on the lecture circuit

Bridgewater (a better name would be "Bilgewater") College announced that Judge John E. "Jackass" Jones III, the infamous judge who wrote the infamous Kitzmiller v. Dover decision, has been selected to give -- ironically -- the "Constitution Day Address" at the college on Sept. 17. Judge Jones said in a 2006 Dickinson College commencement speech that his Kitzmiller decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions -- a worse choice for a public speaker for Constitution Day could scarcely be imagined. Judge Jones has also said that those who disagree with his Kitzmiller decision have no respect for "judicial independence" and "the rule of law." Furthermore, in the Kitzmiller decision, Jones arrogantly assumed that he knew the answers to questions about evolution that have perplexed generations of scientists and philosophers.

The press release announcing the address said,

As chairman of the Pennsylvania Liquor Control Board, he gained national recognition in the area of alcohol education, with particular emphasis on underage drinking at college campuses, as well as drunk driving.

Actually, as a past chairman of the Pennsylvania Liquor Control Board, he is better known for banning Bad Frog Beer because of what some might consider to be an obscene gesture on the label.

READ MORE

Activist Judge "Jackass" Jones' pseudo-originalism

Judge "Jackass" Jones, poster child for activist judges

===============================

There has been a big debate going on over the legitimacy of "originalism" as a means of constitutional interpretation [link] [link] [link -- group of blog articles concerning originalism ], but Judge "Jackass" Jones' "Founders' true religion" interpretation of the establishement clause is not even genuine originalism -- it is pseudo-originalism. If originalists like Robert Bork and Justices Antonin Scalia and Clarence Thomas are often regarded as crackpots, then what can be said of Judge Jones?

Judge Jones said in a commencement speech at Dickinson College,
.

Ironically, but perhaps fittingly for my purposes today, we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Judge Jones claimed that he got the above "true religion" idea from his undergraduate days at Dickinson College, but the statement is actually a quote mine plagiarized from a book that was published long after he graduated. [link] Some have claimed that it is not a plagiarism because quote marks and a citation are shown in the Dickinson College website's copy of the speech, but the quote marks were not added for several days and the oral speech itself had no indication of quotation. Furthermore, it is not a merely a quote but is a quote mine because the original statement was selectively quoted in a way that changed the original meaning. [link]

Two of the principal kinds of originalism are "original meaning" (a kind of "textualism") and "intentionalism." Wikipedia says of original meaning,

Original meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia. It contends that the terms of the United States Constitution should be interpreted as meaning what they meant when they were ratified, which is to say, it asks the question: "What would a reasonable person living at the time of ratification have understood these words to mean?"

"Original meaning" is a kind of textualism, which can be the current meaning of the Constitution or other legal authorities. The problem with original-meaning originalism is that it does not recognize changes in circumstances and societal standards. For example, in regard to changes in societal standards, the Founders had a much different view than we do in regard to how Constitutional protections should be applied to women and racial minorities and what Constitutional protections are needed by women and minorities. In regard to changes in circumstances, the Founders never had to consider how the establishment clause would apply to the teaching of evolution, so original-meaning originalism is of little or no help in illuminating that application of the establishment clause.

"Intentionalist" is defined as follows:

Intentionalist: An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.

Intentionalism is on particularly shaky ground as a method of interpreting the Constitution. Some problems are: (1) There were many Founders and they had different intentions; (2) after a span of more than two centuries, it is difficult to discern the Founders' intentions; and (3) as with original-meaning originalism, it does not recognize changes in circumstances and societal standards.

But for original meaning or intentionalism to be applied at all, there has be to something in the Constitution to be given meaning or intent. For example, intentionalism might illuminate the Founders' reasons for putting "well-regulated militia" in the 2nd amendment's right to keep and bear arms. But the establishment clause only says that "Congress shall make no law . . . respecting an establishment of religion." There is nothing there that has anything to do with "true religion." There is nothing there that can be given meaning or intent in regard to "true religion." "Intentionalism" does not mean that any idea can be just pulled out of the air and be claimed to represent the intent of a particular clause of the Constitution. Even if it can be shown that all or most of the Founders held a particular idea, there is no reason to believe -- and good reason to disbelieve -- that they wanted that idea to be part of the Constitution when they did not put that idea in the Constitution. Judge Jones' "true religion" idea is as bad as the fundies' idea that the USA was established as a "Christian nation."

It might be argued that Judge Jones tacitly repudiated or retracted his "true religion" idea. I have not heard him repeat the idea -- for example, he did not mention the idea in his talk at Case-Western Reserve University last year. However, I don't think that his "true religion" statement can be lightly dismissed as just a gaffe or a faux pas -- the statement must have represented his true beliefs at the time and probably represents his true beliefs now. The statement implies that Jones would go out of his way to attack anything he thinks might be associated with organized religion. The statement showed extreme prejudice against intelligent design and the Dover defendants, regardless of whether or not ID is a religious concept.

Judge Jones says that he is not an "activist judge." Bullshit. He is a poster child for activist judges.
.

READ MORE

Case-law history of monkey trials

.
Introduction

The Discovery Institute's Casey Luskin has written an excellent law-journal article about the case-law history of court cases concerning evolution education. The article is described here and the article itself -- in PDF format -- is here. Casey reviews 21 cases -- some are federal court cases and some are state court cases. Luskin's law-journal article shows that the case-law history of "monkey trials" is far more complex than the oversimplified, ignorant and cocky "you've always lost" and "you lost -- get over it" views of the Darwinists. Luakin shows that the legal position of Darwin critics is much stronger than most people realize -- he shows that the judicial opinions in these cases have many important findings that are in favor of Darwin critics even though the overall decisions were against the Darwin critics. One big fault of the paper is that it fails to show how close Freiler v. Tangipahoa Parish and Selman v. Cobb County came to being reversed on appeal. Also, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link].

Attorney Timothy Sandefur wrote a blog post that was highly critical of Luskin's law-journal article, but I think that Sandefur misses the point that the purpose of Luskin's article is not just advocacy but is also to present an objective overview of the case-law history.

Here I will make some additions and corrections to Luskin's law-review article. Unfortunately, URL links to some of my original references no longer work.
.
Overview

The case law on evolution education is getting old. The last Supreme Court decision on evolution education, Edwards v. Aguillard (1987), was over twenty years ago, and the last definitive appeals court decision on evolution education, Freiler v. Tangipahoa Parish (2000), was nearly ten years ago (I am not counting Selman v. Cobb County because that decision was a vacation and remand), and the last federal district court decision, Kitzmiller v. Dover (2005), was 3½ years ago. As for precedential value, Supreme Court decisions of course have the most, federal appeals court decisions have a fair amount, and federal district court decisions have little or none. Why are there no current or very recent cases? Two reasons are: (1) curriculum-setting government bodies have learned how to "lawsuit-proof" criticisms of evolution, and (2) fear of the costs of attorney fee awards to the plaintiffs; because of incredibly tight-fisted taxpayers, this is a problem even where the potential financial burden to the government is negligible. An awful lot has changed since these cases were decided and it is high time to revisit them. It's is really a shame that there are no new cases, because new cases would give an opportunity to apply the many things that have been learned from previous cases.

Kitzmiller v. Dover (2005)

This blog has more posts directly and indirectly related to this case than for any other subject, as is evident from the post label list in the homepage's sidebar (post labels with Kitizmiller and Judge Jones). Luskin is of course highly critical of the Kitzmiller decision. I would like to make here some additions and corrections to what Luskin said about the case.

Casey classified Kitzmiller in the category "cases rejecting the teaching of alternatives evolution," but IMO Kitzmiller belongs in his category "cases rejecting disclaimers regarding the teaching of evolution." The Dover school board's Intelligent Design policy was just a one-minute oral statement -- no alternatives to evolution were actually taught, and the book referred to in the statement, "Of Pandas and People," was not required reading.

IMO the Kitzmiller decision is badly tainted because it is likely that Judge "Jackass" Jones showed a lack of restraint because he knew that his decision was not likely to be appealed because of the changeover in the school board membership. If an appeal had been anticipated, I doubt, for example, that Judge Jones would have copied the opinion's ID-as-science section nearly verbatim 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 often-heard claim that the defendants' arguments were so bad that there was no need to address them does not hold water -- if those arguments were really bad, all the more reason to attack them.

Judge "Jackass" Jones has charged that critics of his Dover decision have no respect for "the rule of law" and "judicial independence."[link] Judge Jones dodged the question of whether ID encourages critical thinking, which was a crucial question in determining whether the Dover ID policy satisfies the Lemon test's requirement of a "secular purpose that is not a sham." [link] He called judges' work "workmanlike," trying to give the false impression that any other judge would have written the same opinion that he did [link] [link] . Judge Jones showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions:

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Jones said that he got the above "true religion" idea from his undergraduate days at Dickinson College, but the above statement is actually a quote mine that he plagiarized from a book that was published long after he graduated. [link]

Freiler v. Tangipahoa Parish (2000)

This little-known case is especially noteworthy because of how close it came to being overturned by an en banc (full court) appeals court and/or the US Supreme Court. [link]

Luskin wrongly stated that six 5th Circuit federal appeals court judges dissented from the vote to deny an en banc rehearing of Freiler -- the number given in the dissenters'opinion (page 2) is seven. It is hard to tell how many of the judges voted against an en banc rehearing -- the 5th Circuit had 17 authorized seats in 2000 but at least one and maybe tow or three of the seats were vacant [link] when the vote was taken. In any event, the vote was very close.

Luskin failed to note that the Supreme Court's three votes in favor of granting certiorari (Scalia, Thomas, and Chief Justice Rehnquist) was just one vote short of the four votes normally required for a grant of certiorari. Luskin also failed to note that Scalia's long opinion (joined by Thomas and Rehnquist) dissenting from the denial of certiorari was unusual -- denials of certiorrari are usually made without comment (the frequency of dissents from denials of certiorari is discussed below). In his dissent, Scalia minced no words -- in addition to Luskin's quotations of Scalia's dissent, Scalia also said,

I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal. (emphasis added)

BTW, it is widely known that Supreme Court's denials of certiorari are normally made without comment, but the frequency of dissents from certiorari is generally not known -- however, I managed to find some statistics on that frequency, though the statistics are old. There are three possible outcomes for dissents from certiorari: (1) the dissenting opinion is first circulating among the justices and if it succeeds in causing a reversal of the denial, the dissent is of course not published; (2) the dissent fails to cause a reversal, and a decision is made to publish the dissent (Scalia's dissent here is an example of this type), and (3) the dissent fails, and a decision is made to withdraw the dissent. Here are the statistics for the period 1971-1981: total number of dissents, 385; dissent fails and is published, 273 (70.9%); dissent fails and is withdrawn, 29 (7.5%); dissent succeeds, 83 (21.6%). [link -- see page 31] That works out to an average of 27.3 published dissents from cert denial per year for the period 1971-1981, or an average of about three per year per justice. However, some of the dissenting opinions may be trivial -- for example, I have seen just a statement from a justice that he is opposed to the death penalty. Dissents from denials of certiorari are discussed in here, for those that are interested.

Selman v. Cobb County(2005/2006)

This blog has a whole post-label group of articles for Selman [link]. Post labels are listed in the sidebar of the homepage.

Casey fails to mention that before vacating and remanding the decision because of missing evidence, the appeals court panel indicated that it was leaning towards reversal even if the missing evidence were found [link] Appeals Judge Ed Carnes said that the three-sentence disclaimer seemed to him to be "literally accurate" and told the attorney representing the opponents of the stickers, "Your difficulty is that you've got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment." [link] Judge Frank Hull questioned how the district-court judge could have found the sticker's language misleading to biology students when there was no evidence to support that view.

Luskin's paper says,

Like Hurst [Hurst v. Newman], this case represents a school district being forced to abandon what it believed was a constitutional policy over threats of an ongoing and expensive lawsuit

Casey is just plain wrong here. The Cobb County school district is big and rich, unlike the El Tejon school district of Hurst and the Dover Area school district of Kitzmiller, which are small and poor. Cobb County was getting free legal representation in its appeal and received offers of more free legal assistance. The Cobb County school district's actual and potential legal expenses were much lower than the ~$1 million paid by the Dover Area school district. [link] Furthermore, before vacating and remanding the decision because of missing evidence, the appeals court panel indicated in an oral hearing that it was leaning towards reversal even if the missing evidence were found. The Cobb County school board simply took a dive.

Attorney Edward Sisson's open letter about the Selman decision is also good. The letter's "political insider/outsider" idea appears to be based on Justice O'Connor's "endorsement test" as originally described in her concurring opinion in Lynch v. Donnelly:

The . . . . more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Comer v. Texas Education Agency (2008)

As I said in the introduction to this post, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link]. Apparently the decision was not appealed. Unfortunately, this case does not fit into any of the three categories devised by Luskin: (1) Cases upholding the right to teach evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. This blog has a post-label group of articles about Chris Comer (post labels are listed in the sidebar of the homepage).

Justiciability of scientific questions concerning evolution

I am not aware of any judicial opinion that has addressed the issue of the justiciability of scientific questions concerning evolution, but I nonetheless consider this to be a very important issue. IMO the courts should declare these questions to be non-justiciable -- many of these questions are like the question of how many angels can dance on the head of a pin. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards.” Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004). Also, appellate courts are unsuited for reviewing days or weeks of scientific testimony -- appellate courts are mainly suited for deciding questions about points of law. This blog has several articles about justiciability.
.

READ MORE

Kitzmiller and "accommodationism"

.



In the conclusion section of his Kitzmiller v. Dover opinion, crackpot activist Judge "Jackass" Jones wrote,

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.(emphasis added)

Fundy creationists of course disagree with the above statement in bold, but it is now apparent that many Darwinists also disagree with that statement because of its "accommodationist" stance. "Accommodationism" means making nice with theistic evolutionists or people who believe that evolution and religion are compatible. The debate over accommodationism has really been heating up lately [1] [2] [3]. Sleazy PZ Myers is quite blunt about his opinion of accommodationism:
.

What I really object to is the goofy "if you don't be nice to god belief, the churchy scientists will take their ball home". I metaphorically puke on the shoes of anyone who tries to make that argument.

As for Jones above statement that "the theory of evolution represents good science," there is no constitutional principle of separation of bad science and state (it has also been claimed that there is really no constitutional principle of separation of church and state, but that is another matter).

The above statement that evolution "in no way conflicts with, nor does it deny, the existence of a divine creator" is a personal religious or philosophical belief that has no place in a judicial opinion. The Kitzmiller opinion is arbitrary and subjective but Judge Jones has been trying to give the false impression that it is objective and unavoidable. In an effort to give the false impression that any other judge would have made the same decision and written the same opinion that he did in Kitzmiller, Judge Jones claimed that judges "operate in a very workmanlike way" :

We operate in a very workmanlike way, believe it or not. We find the facts, as we did in this case, by listening to the testimony, and then we apply well-established law to those facts. It's a sequential process that is time-tested. Every judge does it in the United States.

Judge Jones also charged that critics of his Kitzmiller decision have no respect for "the rule of law" and "judicial independence." Also, he has not acknowledged criticism from legal scholars but has only acknowledged criticisms from personalities of the popular media -- e.g., Phyllis Schlafly and Pat Buchanan.

Of course, the Darwinists treat Judge Jones like he can do no wrong. The most irritating thing about Judge Jones is that the general media treats him as a brilliant judge instead of the crackpot activist judge that he is. He is too stupid to be a judge.
.

READ MORE

Darwin-doubting often based on science and not just religion; Dover opinion is worthless

Darwinists seem unable to believe -- or pretend to be unable to believe -- that Darwin-doubting could be based on science and not religion. On his Discovery magazine blog named "The Intersection," Chris Mooney writes in his debate with Jerry Coyne,

I believe the central reason we have such massive problems with the teaching of evolution to be precisely this — millions of America believe, incorrectly, that they must give up their faith in order to learn about it or accept it. This misconception is highly prevalent, and is regularly reinforced in a number of ways: Through the media, by church leaders, by the New Atheists, and so on.

If this incorrect view could somehow be dislodged, then, we might also have a better chance of defusing tensions over the teaching of evolution, and thereby improving “scientific literacy” . . .

The Darwinists have deluded themselves into thinking that all they have to do is persuade the fundies that evolution is compatible with the bible and then everything will be hunky-dory.

Geocentrism, like creationism, is supported by the bible, but the fundies accept heliocentrisn but not evolution because they find the scientific evidence to be persuasive for heliocentrism but not for evolution. There is a lot of evidence for an old earth and some evidence for common descent, but the net evidence is actually against an evolutionary process that was driven solely by natural genetic variation and natural selection. Teaching that such an evolutionary process is fact is lying to students.
.
Another mirage is Darwinists' belief that the fundies reject evolution in order to maintain a belief in the inerrancy of the bible. But that belief in biblical inerrancy has already been undermined by the bible's erroneous teaching of geocentrism.[link]

Yet another Darwinist myth is that all they have to do is persuade the clergy that evolution is compatible with religion and then the faithful will follow the clergy like sheep following a Judas goat. The infamous Clergy Letter Project is an example of this kind of thinking. But, for example, a lot of Catholics don't follow the church's very strict teachings about abortion, so why should Catholics follow the church's teaching about evolution?

Loony Mooney's post also praises the Kitzmilller v. Dover decision, but that decision should not be taken seriously. Judge John "Jackass" Jones is a crackpot activist judge who showed extreme lack of restraint in the Dover opinion because he knew that the opinion was unlikely to be reviewed by higher courts because the school board was unlikely to appeal because of a change in the school board membership as a result of an election. The extreme one-sidedness of the Dover opinion's ID-as-science section, which was copied nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs, is evidence of this lack of restraint. If Judge Jones had anticipated an appeal, he probably would have -- as a precaution -- addressed the defendants' arguments about ID-as-science even if he thought those arguments were bad. Judge Jones lied when he said that the school board election results would not affect his decision. And after the release of the decision, Judge Jones gave further evidence of what a big crackpot activist he really is. For example, he showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by stating in a Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. [link] Also, he has extolled "judicial independence" and "the rule of law," charging that critics of his Dover opinion have no respect for those things. [link]

Some bloggers' reactions to Mooney's debate with Coyne are discussed here. Mooney has another follow-up post here.
.

READ MORE

Judge "Jackass" Jones contradicted by Darwinist experts

(The above statement is actually a quotation of creationist Texas state board of education member -- and former chairman -- Don McLeroy)

======================================

In his Kitzmiller v. Dover opinion (page 136), Judge "Jackass" Jones said, "ID cannot uncouple itself from its creationist, and therefore religious, antecedents."

Darwinist scholars Ronald Numbers and Francis Collins, who are experts about the relationship between intelligent design and creationism, disagree with Judge Jones' above statement. The Discovery Institute says,
.

Unlike creationism, the scientific theory of intelligent design is agnostic regarding the source of design and has no commitment to defending Genesis, the Bible or any other sacred text. Honest critics of intelligent design acknowledge the difference between intelligent design and creationism. University of Wisconsin historian of science Ronald Numbers is critical of intelligent design, yet according to the Associated Press, he "agrees the creationist label is inaccurate when it comes to the ID [intelligent design] movement." Why, then, do some Darwinists keep trying to conflate intelligent design with creationism? According to Dr. Numbers, it is because they think such claims are "the easiest way to discredit intelligent design." In other words, the charge that intelligent design is "creationism" is a rhetorical strategy on the part of Darwinists who wish to delegitimize design theory without actually addressing the merits of its case.

There is another big reason why Darwinists conflate ID and creationism: so that they can misuse the establishment clause to attack ID.

And Francis Collins' BioLogos website says,

Intelligent Design

Contrary to some interpretations, Intelligent Design, or ID, makes no specific theological claims.

ID is based on scientific observations and scientific reasoning whereas creationism is based on religious sources.

Judge "Jackass" Jones strikes out again.
.

READ MORE

Kitzmiller failed to follow Daubert standard of review for scientific questions

Every time I think that I have discovered everything that is bad about the Kitzmiller v. Dover decision, I discover something new. A decision that the Darwinists regard as a masterpiece is in reality a piece of junk.

The Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), is considered to be the de facto federal standard of judicial review for scientific questions. Daubert is based on the Federal Rules of Evidence. Daubert has been adopted as a standard of review by many states as well. However, I have been aware for a long time that although the Kitzmiller v. Dover opinion has a ~6000 word section that rules on the scientific merits of evolution and intelligent design, KItzmiller does not cite Daubert, the pertinent rules in the Federal Rules of Evidence, or any other standard of review for scientific questions. I thought that this very serious omission of the Daubert standard might have just been an oversight on Judge "Jackass" Jones' part, but recently I discovered what might be the real reason for the omission. In the Q&A session in Jones' recent talk at Case Western Reserve University, a questioner asked about the Daubert standard. Judge Jones' response showed that he mistakenly believed that Daubert applies only to jury trials, and that belief could be the reason for his failure to cite Daubert in his Kitzmiller opinion. The Daubert opinion discusses jury trials but does not indicate in any way that the decision is restricted to jury trials. Daubert's syllabus does not even mention jury trials at all. The rules of the Federal Rules of Evidence that the Daubert decision is based on are not restricted to jury trials. There is no reason whatsover to believe that Daubert is restricted to jury trials. And I assert that Daubert and the Federal Rules of Evidence are applicable not only to the admissibility and excludability of evidence but also to the analysis and evaluation of evidence.

I assert that Judge Jones' rulings on the scientific merits of evolution and intelligent design are not consistent with the Daubert standard. The Kitzmiller opinion says (pages 88-89),
.

After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.

Prior to Daubert and the adoption of the Federal Rules of Evidence, the standard of review for scientific questions was the Frye test (from Frye v. United States), which was general acceptance in the scientific community. Daubert ruled that this general acceptance would no longer be the sole criterion. Daubert also ruled that scientific arguments could not be rejected solely on the basis of lack of publication in peer-reviewed journals (incidentally, such publication is evidence -- but not proof -- of general acceptance). However, Daubert also ruled that general acceptance in the scientific community and publication in peer-reviewed journals could be factors in the judicial review of scientific questions -- they could just not be controlling factors.

The opinion of the court says in Daubert,

The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is " `sufficiently established to have general acceptance in the field to which it belongs.' " . . . .

The United States Court of Appeals for the Ninth Circuit affirmed. 951 F.2d 1128 (1991). Citing Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923), the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community . . . . .

The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review. 951 F. 2d, at 1130-1131. Those courts had found unpublished reanalyses "particularly problematic in light of the massive weight of the original published studies supporting [respondent's] position, all of which had undergone full scrutiny from the scientific community."

The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree. (emphasis added) . . . .

Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony,provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." (note: Rule 702 has since been amended)

Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard . . . .

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 J. Am. Med. Assn. 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130-133 (1978); Relman and Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised . . .

Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." United States v. Downing, 753 F. 2d, at 1238 . . . . .

Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free for all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions (note: this is one of the places where juries are mentioned, but there is no indication that the decision was intended to apply only to jury trials) . . . . . .

Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth.

Excellent point! The message that Judge Jones is giving to scientists and the publishers of peer-reviewed scientific journals is this: "If you want intelligent design to be rejected by the courts, don't show any support for it -- even when deserved -- and don't publish it in peer-reviewed scientific journals."

Unfortunately, Daubert does not mention that censorship and pressure to conform could prevent a good scientific idea from getting peer-reviewed publication or general acceptance.

The Daubert opinion of the court concludes,

The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.

I assert that the Kitzmiller opinion gave more weight to general acceptance and peer-reviewed publication than is warranted by the Daubert standard. In any event, the Kitzmiller opinion's failure to cite Daubert and the pertinent rules of the Federal Rules of Evidence is a very serious omission.

Anyway, my main position is -- as I have frequently stated -- that scientific questions in the evolution controversy should be declared by the courts to be non-justiciable. These questions are like the question of how many angels can dance on the head of a pin. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards for resolving the question.” Vieth v. Jubelirer, 541 U.S. 267 (2004). Even if a court could reach fair decisions on scientific questions about evolution after several weeks of scientific testimony, appellate courts would not want to rubber-stamp a district court's decisions about those questions, nor would appellate courts want to hear or review several weeks of scientific testimony. In Massachusetts v. EPA, the Supreme Court treated the global warming question as non-justiciable.
.

READ MORE