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At Panda’s Thumb: Worry that the U.S. Supreme Court will rule for creationism

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Remember them? Maybe you’d have to be there:

Unfortunately, one of the fatal flaws in the now-dominant constitutional theory of Originalism is that it substitutes appeals to past generations’ subjective understandings for any conceptual and logical legal argument. Since such a substitution is not literally possible, some of the better Originalist thinkers have fashioned clever ways to smuggle in the latter by dressing up “abstract and ahistorical” arguments in ancient clothing (this is called “the Construction Zone”). Pointing to historical practice is not only confusing, since these practices sometimes conflicted and can be interpreted in different ways, but because we must infer general rules from those practices, and inferring general rules is, like it or not, necessarily an “abstract and ahistorical” undertaking. It’s no surprise, therefore, that the Kennedy decision itself employs an “abstract an ahistorical” principle, when it bases its decision on the presence or absence of “coercion” — which is an abstraction; a concept, not a list of specific historical events. Obviously history can inform a proper grasp of the law — just as the views of previous generations of scientists can help us understand a natural phenomenon — but actually understanding what the law is requires an objective analysis, which must rely on abstractions and “ahistorical” appeals to principle rather than, as Alexander Hamilton put it, rummaging through musty parchments. Given this confusion, it’s unsurprising that the Court drops the entire issue at that point, and gives us no guidance as to what exact kinds of “historical practices and understandings” should govern the question of whether something constitutes an “establishment of religion” or the “free exercise thereof.”

Given that government-funded schools are a century and a half older than the Constitution itself, and were in America’s early years quite heavily saturated in religion, it seems unlikely that a court relying on history alone — without any “abstract and ahistorical principle” to reinforce its constitutional understanding — would reach the same conclusion as the district court in the Dover case. Of course, schools — both public and private — were teaching Intelligent Design in 1791 (when the First Amendment was ratified), since it was the state of the art back then. And the Establishment Clause itself expressly allowed states to maintain their state-established churches; it was only over the course of the nineteenth century that they were abolished, and later still that the Fourteenth Amendment was viewed as forbidding states to force people to subsidize churches.

Timothy Sandefur, “Religious Conservatism on the Supreme Court: Implications for Creationism?” at Panda’s Thumb (June 28, 2022)

For some, tormenting themselves with this stuff probably seems to make more sense than confronting the fact that Darwinism (which is generally what they mean by “evolution”) isn’t as widely believed as it used to be within biology. Never mind what a judge thinks should be taught to kids in school.

From Mind Matters News:

Note: The issues around evolution have become much more complex in the last couple of decades. Many evolutionary biologists find traditional Darwinian theory too narrow to encompass the broad range of changes observed in life forms over time. Groups like the Third Way, for example, are not in any sense creationists; they incorporate recent evidence for horizontal gene transfer,  epigenetics, and devolution into their thinking. Just today in The Guardian, there was another call from mainstream evolutionary biologists for a new approach to evolutionary theory. It is possible that some bloggers who were comfortable defending a traditional Darwinian point of view have gotten tired of keeping up with the changes the field is undergoing.

22 Replies to “At Panda’s Thumb: Worry that the U.S. Supreme Court will rule for creationism

  1. 1
    AaronS1978 says:

    Oh no whatever will we do
    https://tenor.com/brzDe.gif

  2. 2
    kairosfocus says:

    Re:

    one of the fatal flaws in the now-dominant constitutional theory of Originalism is that it substitutes appeals to past generations’ subjective understandings for any conceptual and logical legal argument.

    This commits the error of relativism and/or subjectivism. Text such as DoI and US Const have objective meanings that can be reconstructed with quite adequate warrant; informed by relevant historical evidence. That is, we can capture with responsible confidence the OBJECTIVE sense of the text, another strawman collapses. In particular, Alito is precisely correct and well warranted, which is why so many objections fail to actually go through the precise merits in his case. (See the summary as put up at UD here June 27 https://uncommondescent.com/intelligent-design/developing-the-us-supreme-court-reverses-roe-v-wade-is-it-cry-havoc/#comment-759305 )

    This rhetorical tactic tells us a lot, none of it good.

    KF

  3. 3
    kairosfocus says:

    PS, If these folks will so twist direct public text, what will they do to evidence relative to origins? We have reason to have no confidence.

  4. 4
    jerry says:

    People rant without foundation here and elsewhere.

    The best take on what is happening with the Supreme Court is by Francis Menton.

    There Are Two Fundamentally Irreconcilable Constitutional Visions

    The two visions can be summarized in just a few sentences each:

    Vision 1. The Constitution allocates powers to the three branches of government, and also lists certain rights entitled to constitutional protection. The role of the courts is (1) to assure that the powers are exercised only by those to whom they are allocated, (2) to protect the enumerated rights, and (3) as to things claimed to be rights but not listed, to avoid getting involved.

    Vision 2. The Constitution is an archaic document adopted more than 200 years ago, and largely obsolete. The role of the courts is to implement the current priorities of the academic left and then somehow rationalize how that is consistent with the written document. If a right is enumerated in the Constitution but disfavored by the current left (e.g., the right to “keep and bear arms”), then the courts should find a way to uphold enactments that minimize that right down to the point that it is a nullity. If a right is not enumerated in the Constitution, but is a priority of the left (e.g., abortion), then that right can be discovered in some vague and unspecific constitutional language (“due process”). And if the left has a priority to transform the economy and the way the people live, but the Congress does not have sufficient majorities to enact that priority, then the Executive agencies can implement that priority on their own authority, and the role of the courts is to assist the agencies in finding something in the tens of thousands of pages of federal statutes, however vague and dubious, that can be claimed to authorize the action.

    One vision is very limited and definitely not arbitrarily while the other vision is not limited and more importantly arbitrarily. Those arguing for the second vision fail to realize that what they claim they fear is a possibility under their vision but not under the other vision.

    https://www.manhattancontrarian.com/blog/2022-7-1-there-are-two-fundamentally-irreconcilable-constitutional-visions

  5. 5
    JHolo says:

    KF: Text such as DoI and US Const have objective meanings that can be reconstructed with quite adequate warrant

    To which I counter:

    any person who was not free would be counted as three-fifths of a free individual for the purposes of determining congressional representation.

    And

    The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

  6. 6
    chuckdarwin says:

    Given the Supreme Court’s ideological rampage over the last ten days, I wouldn’t put anything past the Trumpsters on the court. We are about to enter a Dark Ages of constitutional jurisprudence for the next twenty years. Hold on to your seats…….

  7. 7
    TAMMIE LEE HAYNES says:

    Us Creationists, we say this:
    Teach the Science.

    Teach the Settled Science,
    using precisely stated Settled Scientific Laws,

    A “Scientific Scientific Law” is a statement describing 1) a regularity obsevred in nature that 2) has been confirmed by a large body of empirical evidence, 3) that could be shown to be false (falsified) if it were, in fact, false, 4) but has never been falsified in practice in spite of a major effort to do so.

    Here’s an example of a Settled Scientific Law:
    The Creationist Law of Biogenesis:
    “Absent Divine Intervention, life comes only from life”

    Teach the Science!!

  8. 8
    JHolo says:

    CD: Given the Supreme Court’s ideological rampage over the last ten days, I wouldn’t put anything past the Trumpsters on the court. We are about to enter a Dark Ages of constitutional jurisprudence for the next twenty years. Hold on to your seats…….

    Lawfare at its worst. Or, declarations under false colour of law.

    Although, I was amused by Maine’s response to the court’s ruling that public funding must be extended to religious schools. Maine has accepted this ruling but promptly passed legislation that any school receiving public funding must teach about LGBQ rights.

  9. 9
    relatd says:

    CD at 6,

    Chuck predicts the future! The Supreme Court is doing things Atheists/Leftists don’t like! The Supreme Court, based on evidence, did something the 1973 Supreme Court ignored: There’s nothing in the Constitution to legalize permissive abortion. Nothing. So Leftists are ranting. It’s the End of the world !!!

  10. 10
    relatd says:

    JH at 8,

    Another one. “Dark Ages” and “dangerous.” Words to use when certain people don’t get their way. Like a 5 year old asking his mom if he can do something that has bad consequences. “But moooo ooom! I want it!”

    OOh, Maine! What are these rights? Are they in the Constitution? If not, oh well.

  11. 11
    AaronS1978 says:

    ChuckyD OH NOES THE RAMPAGE!
    I’m soooooo sorry your subjective self has be disrupted by the ruthlessness of the Supreme Court and their not conforming to your ideals rampage!

    So sad would you like a huge?

    Wasn’t your view that of moral relativity and cultural relativity in general?

    https://tenor.com/bCzUt.gif

  12. 12
    chuckdarwin says:

    HHolo
    Sounds like the Maine legislature is smarter than all the ivies on the Supreme Court. Well, played…

  13. 13
    Silver Asiatic says:

    any school receiving public funding must teach about LGBQ rights

    If that conflicts with religious rights then the state is limited to what it can do.

  14. 14
    relatd says:

    CD at 12,

    Smarter how?

  15. 15
    relatd says:

    SA at 13,

    Religious rights? There is such a thing 🙂

    Thank you for bringing that up.

  16. 16
    relatd says:

    Here’s what’s actually going on. No mention of “rampage” or “Dark Ages.”

    https://apnews.com/article/abortion-us-supreme-court-health-de9e1e2c764bf61b95aeef756a66f8a5

  17. 17
    JHolo says:

    Relatd: OOh, Maine! What are these rights? Are they in the Constitution? If not, oh well.

    The constitution doesn’t say anything about murder either. Oh well.

  18. 18
    relatd says:

    JH at 17,

    An example of: How Not to Answer the Post and How To Deflect from the Issue at Hand.

    Keep it up and I’ll call a foul on the play.

    There will be penalties…

  19. 19
    BobRyan says:

    A lot of people claim the 1st Amendment means certain things that it does not mean. They read about the 1st Amendment from those sources that supports their already skewed views, rather than read the amendment as it was written.
    1st Amendment:
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    It has five clauses that limit what the federal government can do, which is why it starts out with Congress shall make no law. There is no inclusion in state governments, since such issues were left to the states. That is the reason some states did have religious requirements for holding office that did not violate the 1st Amendment.

  20. 20
    ET says:

    Just rule against the teaching of evolutionism in a science classroom. Evolution by means of blind and mindless processes, aka evolutionism, doesn’t belong in a science classroom. Perhaps these justices will understand that science requires evidentiary support.

  21. 21
    relatd says:

    BR at 19,

    The First Amendment is easy to understand. The problem is those who misrepresent it or push for ‘freedom from religion’ in an attempt to evade God. Example: “Organized religion is a problem.” What is actually being said is “I don’t want any God ruling over me, I’ll do what I want.” OR “I don’t want to be judged by God.”

  22. 22
    tjguy says:

    They are worried that the U.S. Supreme Court will rule for creationism?

    LOL! Pure fearmongering!

    This is not an effective way to fight the battle. Addressing the issue clearly and answering critics is much more effective. But this is a difficult road for Leftists because they don’t stand a chance. SO, this is the best they can do.

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