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October 14, 2005

Why Courts Should Not Defend Darwin

TPMCafe is engaged in "evolution week", and I fully appreciate the need to publicly challenge the scientific idiocy of "intelligent design", so Chris Mooney and Jeremy Gunn are doing yoeman work in taking on this public debate.

But before we rush to put the courts in the role of "truth squad" to stop stupid majorities from pushing what is seen as bad science, it's worth remembering that the courts have a long, terrible history in forcing "Darwin" on society before the New Deal.

I put Darwin in quotes because the Darwin imposed was the Herbert Spencer's economic Darwinism, but the legal idea was the same as those looking for courts to stop intelligent design: stop crude majorities from imposing rules on others that violate scientific truth.

From the landmark New York case In Re Jacobs, Herbert Spencer's popular book Social Statics was cited repeatedly to justify striking down minimum wage and other labor legislation violating the "truth" of "survival of the fittest." (Spencer's phrase, not Darwin's)

And when the Supreme Court in its 1905 Lochner v. New York struck down an eight-hour law day limiting the hours of bakers, it was Justice Oliver Wendall Holmes, no friend of labor on policy grounds, who dismissed the court's role in enforcing truth on majorities engaging in stupid legislation:

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples...The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.
Some may respond that legislating economic rules is different from legislating religious beliefs like creationism-- but there is a clear link in the person of William Jennings Bryan.

Bryan was the Presidential standard bearer of resistance in the 19th century and early 20th century to corporate imposition of the free market.  He railed against this court imposition of "truth" and demanded that the people should rule.

And just as he was an opponent of social Darwinism, he also became a key figure in the Scopes trial as an opponent of the scientific "Darwin."  But I put Darwin again in quotes because the Darwin of the Scopes trial was that of the textbook used, Hunter's Civic Biology, which reflected Social Darwinism in passages that argued that criminality, pauperism, alcoholism, prostitution and feeblemindedness were inherited:

"Hundreds of families such as those described above exist today, spreading disease, immorality, and crime to all parts of this country.... Just as certain animals or plants become parasitic on other plants or animals, these families have become parasitic on society"
If the local Tennessee government wanted to ban the teaching of eugenics-based passages like this, should they be prohibited from being able to control what textbooks their children use?  

And if the courts are allowed to say that the intent of "intelligent design" is religious, and thus illegitimate, can laws promoting care for the poor, which are supported by church leaders citing the Sermon on the Count, be rightfully banned as illegitimate as the Lochner Court did?

Where is the line where it makes sense to entrust courts with decisions over truth, when those judges are likely to reflect the politics of use and misuse of science as much as any other group?   The Courts have no honorable long term track record as guardians of truth, so it makes little sense to depend on them now as we face at least a generation of conservative court dominance.

Yes, we need to fightfor the truth of scientific accuracy and evolution in the public sphere, but using the courts because we have failed to convince a majority of the population of evolution is both anti-democratic and bad strategy over the long term.

Posted by Nathan at October 14, 2005 01:07 PM