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.