Intelligent Design is not Atkins-friendly

I have recently discovered a major development in the ongoing controversy about the teaching of intelligent design. So what if President Bush has weighed in on the subject? A far more important actor is getting involved: the Church of the Flying Spaghetti Monster:

If the Intelligent Design theory is not based on faith, but instead another scientific theory, as is claimed, then you must also allow our theory to be taught, as it is also based on science, not on faith.

Some find that hard to believe, so it may be helpful to tell you a little more about our beliefs. We have evidence that a Flying Spaghetti Monster created the universe. None of us, of course, were around to see it, but we have written accounts of it. What these people don’t understand is that He built the world to make us think the earth is older than it really is. For example, a scientist may perform a carbon-dating process on an artifact. He finds that approximately 75% of the Carbon-14 has decayed by electron emission to Nitrogen-14, and infers that this artifact is approximately 10,000 years old, as the half-life of Carbon-14 appears to be 5,730 years. But what our scientist does not realize is that every time he makes a measurement, the Flying Spaghetti Monster is there changing the results with His Noodly Appendage. We have numerous texts that describe in detail how this can be possible and the reasons why He does this. He is of course invisible and can pass through normal matter with ease.

I’m sure you now realize how important it is that your students are taught this alternate theory. It is absolutely imperative that they realize that observable evidence is at the discretion of a Flying Spaghetti Monster. Furthermore, it is disrespectful to teach our beliefs without wearing His chosen outfit, which of course is full pirate regalia.

May I be the first to say: Yarrghh! Pass the parmesan!

On a slightly more serious note, I recently read Justice Scalia's dissent in Edwards v. Aguillard, the 1987 case in which the Supreme Court struck down a Louisiana statute to mandate the teaching of creationism in science classes. Reading a Scalia opinion is often harmful to the senses, like staring at the sun for an extended period. However there are a couple of points I want to discuss:

The Louisiana legislators who passed the "Balanced Treatment for Creation-Science and evolution-Science Act" were well aware of the potential Establishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly and specifically articulated the secular purpose they meant it to serve... I dissent. Had requirements of the Balanced Treatment Act that are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the manner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gallop, by impugning the motives of its supporters.

Edwards is a First Amendment example of the difficulty of divining the intent of a policy. The Court in Edwards had to evaluate whether the Louisiana law had "a secular legislative purpose" as mandated by the Lemon test. This may seem like a relatively easy question to answer. But the Court was smart enough to realize the Court could not just blindly accept the stated reasoning behind the policy. It had to discover "the actual intent." This is a fundamentally different and more difficult question to answer.

Louisiana claimed the itent of the policy was to advance academic freedom. (Hmm... how does a statute that mandates a particular teaching advance the freedom to teach whatever a teacher deems important? Not to mention forcing science teachers to teach non-science in their classrooms. WARNING: don't think about that for more than 10 seconds or blood may start shooting out of your nose.)

The Court was aided in this case by a number of fortunate circumstances. There was a record of debate in the legislature in which the bill sponsor said his real preference was that "neither [creationism nor evolution] be taught." There was testimony from the Louisiana Science Teachers Association "any scientific concept that's based on established fact can be included in our curriculum already, and no legislation allowing this is necessary." Then there was the text of law itself, which forbids discrimination against teachers who choose to be a creation-scientist but fails to offer protection to teachers who choose to teach evolution.

But the Court is not always so lucky. Challenges to employment policies, college admissions policies, or jury selection strategies most often do not have such conclusive evidence. In the absence of evidence demonstrating the "actual" intent of a policy, one of two dangerous things can happen. First, the Court can try to figure it out anyways, like Chief Justice Rehnquist did in Grutter (see the post below). Second, the Court can defer to the stated purpose of the policy as Justice Scalia did in Edwards. Both are equally pernicious.

The crucial issue for the Court to consider in Edwards was not whether state legislators were sneaky and cunning. The issue was that policy advanced religion. Effect is more important than impetus. In the realm of civil rights, I don't know what should replace the discriminatory intent standard. However, I would argue that putting the Supreme Court in charge of investigating the "actual" intent of a policy often requires a leap of faith.

Questioning questions of fact and law

A recent post on a constitutional law listserv (moderated by Professor Howard Gillman of USC) discussed an overlooked discontinuity in the Constitution concerning questions of law and fact. Article III of the Constitution states: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact." However, the Seventh Amendment states: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." You probably forgot that clause was in the Seventh Amendment, didn't you?

While the above is interesting, in my opinion the larger issue is this: appellate courts are better suited to decide questions of law than questions of fact. Of course, as Article III indicates sometimes appellate courts tackle questions of fact, but they do so with great deference to the determinations of the trial court. Trial courts are designed to hold trials (duh). The purpose of a trial is to collect and assemble facts from which a legal determination can be made.

However there is one area of law in which appellate courts regularly decide (or come very close to deciding) questions of fact - civil rights cases. The Court ruled in Washington v. Davis (1976) that claims of racial discrimination are judged whether the action or policy in question had a racially discriminatory intent. Policies or actions that lacked discriminatory intent but had racially discriminatory effects were not unconstitutional.

The determination of intent is a classic example of a question of fact. Juries determine whether a manslaughter becomes murder with the presence of malice aforethought. Ordinary crimes become hate crimes if a jury believes the crime was motivated by racial animus. A criminal conspiracy necessarily includes the intent to commit a crime.

If a murder case is appealed, the determination of malice aforethought is given great deference, and rightfully so. It would be unthinkable for an appellate court to review that issue de novo. But in race discrimination cases, appellate courts do review discriminatory intent - perhaps not de novo but certainly without much deference to the trial court.

Consider the following from Justice Rehnquist's dissent in Grutter v. Bollinger (2003):

• In practice, the Law School's program bears little or no relation to its asserted goal of achieving "critical mass."
• But the Law School's disparate admissions practices with respect to these minority groups demonstrate that its alleged goal of "critical mass" is simply a sham.
• The opinion also includes three data tables and a thorough review of admissions statistics.

I acknowledge that the distinction between questions of fact and law are murky. One could make the case the above excerpts from Grutter are legal conclusions drawn from the evidence passed up in certiorari. I also recognize there is nothing legally wrong from the Supreme Court taking this approach in discrimination cases. Nonetheless, I hope this discussion will make you think twice about what questions appellate courts are well suited to answer and what questions they are not.

The U.S. Supreme Court is not the proper place to make these determinations. The Court is limited to the records passed up by the lower courts; it cannot make independent factual inquiries. The Court is not a jury or a grand jury, institutions better designed to evaluate factual claims. More importantly, why should appellate courts have greater power to determine intent in civil rights cases rather than any other type of case?

I respectfully dissent.


P.S. Dr. John Birchall of the University of Leicester provides an interesting perspective on the delineation of questions of law and fact in appellate courts in an article for Law in a Box:

The reasons for making it difficult for an appellate court to interfere with a jury decision are easy to justify. There is the practical reason that the jury's thought process is not open to inspection (although historically juries were often asked how they arrived at their decision). And there is the overriding reason that the principle of allowing the parties to be tried by their peers would be meaningless if the judiciary could undo jury decisions which it did not like. Where the court, and not a jury, is the tribunal of fact, the reasons for refusing right of appeal where an issue is classified as one of fact are less compelling, although familiar enough to English lawyers, who are accustomed to the deep-rooted resistance of English courts to reviewing findings of fact.

Defining Dicta

dicta \ 'dik-te \ n. [L. fr. neut. of dictus, ptp. of dicere] (1599) 1: a noteworthy statement: as a: a formal pronouncement of a principle, proposition, or opinion b: an observation intended or regarded as authoritative 2: a judicial opinion on a point other than the precise issue involved in determining a case 3: a legendary coach of the Chicago Bears football team from 1982-1992.

Welcome!

Several months ago, I purchased this site in hopes of creating a blog dedicated to American public law. Unfortunately, life got in the way (as life tends to do), and the site remained devoid of any queries, musings, or rants, humorous or serious. At long last, let the discussion begin...

I, John Marshall Harlan, Supreme Dicta's Clerk of Blog, invite anyone who comes across this site to post comments early and often. If you think I am wrong, correct me. If you think I am off-course, guide me. And, most importantly, if you think I am right, inflate my ego.