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The smartest thing I think I’ve ever heard Scalia say

October 21, 2009 By: John Kindley Category: Uncategorized

From his dissent in Aquillard v. Edwards, 482 U.S. 578 (1987):

The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it.

Relative to the dumbest thing I think I’ve ever heard Scalia say, which coincidentally was also about the Establishment Clause, this is pretty smart. Scalia’s dissent (joined by Rehnquist) seriously called into question the so-called Lemon test‘s inquiry into legislators’ purported intent or purpose, which in my opinion (at least in this context) smacks of ad hominemism. (The federal district court judge’s 2005 ruling in Kitzmiller v. Dover Area School District relied an awful lot on Lemon’s ad hominem approach.)

This post is occasioned by my comment on a Popehat post by Ken in which he lamented as a sign of the end times that apparently every viable Republican candidate for the 2012 presidential election favors teaching Intelligent Design in schools. My comment was:

Allow me, being by nature contrarian and lazy, to say what I said in a comment to an Althouse post back in 2007:

“When One Hundred Authors Against Einstein, a collection of essays by 100 physicists attempting to discredit relativity theory, was published in 1930, Einstein reputedly responded to a reporter’s query about the book with the remark: ‘Were my theory wrong, it would have taken but one person to show it.’ [Incidentally, if memory serves me correctly, I originally lifted this paragraph from a book by Kenneth Rothman titled Causal Inference. I thought I should come clean now.]

This is why I’m not automatically convinced by claims that a purported ‘consensus’ exists on some scientific question to accept that purported consensus. Some day I hope to have the opportunity to really dig into the debate between the Darwinists on one hand and the critics of evolution / the Intelligent Design movement on the other. But not yet having had that opportunity I reserve judgment. That doesn’t seem to stop many liberal [an overly exclusive word choice on my part] partisans (all of whom can’t have truly engaged with the scientific debate), whose knee-jerk reaction to any critique or skepticism re: evolutionary theory is to accuse such skeptics of being fundamentalist neanderthals. (Notwithstanding the fact that natural intuition and common sense is arguably on the side of design rather than evolution, and that believing in evolution without actually engaging with the science is therefore itself a leap of faith, a blind trust in the ’scientific community.’)”

Granted, since 2007 I still haven’t dug into the debate between Darwinism and the Intelligent Design critique for myself, as I keep telling myself I’ll get around to doing. But how many people have?

Several critical responses followed, including this one from Chris (aka Gorko):

You need roughly one of the following to be able to dismantle the ID claims: a college-level biology class, a single popular book on the controvery, any class on the history/philosophy of science, a basic introduction to information theory, or the ruling for the Dover case .

This really isn’t something that requires massively detailed investigation or specialized knowledge in a specific field to sort out.

Taking Chris’ advice, I pulled off the bookshelf “a single popular book on the controversy” — my heretofore unread copy of Darwin on Trial by Phillip E. Johnson. As Chris would probably have to agree, my hopes of settling this question once and for all in my own mind by reading this book are likely forlorn.

But I think I can already advance some tentative conclusions after only reading the first chapter of Darwin on Trial and a few random things on the internet. While I am for good reasons based on personal experience not prone to accept on faith what is represented to me as the scientific “consensus” on evolution, and would not be surprised to find that the grander and more notorious claims of evolution (e.g., that man evolved from apes) are not as supported by the scientific evidence as people have been led to believe, I am from the get go skeptical of the notion that Intelligent Design can be demonstrated by scientific evidence. Disproving (or at least debunking) evolution is one thing; proving Design quite another.

When I said above that “natural intuition and common sense is arguably on the side of design rather than evolution,” I think what I had in mind is not so much the classical argument from design but what I might call an “argument from pragmatism,” as I expressed it here as follows:

Perhaps we should trust our senses, moreso than what we think we know, or can infer from all the evidence we’ve gotten secondhand, about evolution and how it is has hardwired our brains. Perhaps one of the most fundamental senses we should, must, trust is the sense that life makes sense. If everything we know will ultimately pass into oblivion, will eventually disintegrate into nothing but mindless space dust, then life makes no sense. Then there would be no point in doing anything, including talking or thinking about anything. But all of our science and all of our thinking and all of our doing is premised on our sense (the sense of all senses) that life makes sense.

I don’t think this “argument from pragmatism” can be dismissed as mere wishful thinking. Rather, I think it’s simply a reasonable recognition that there’s a very good chance that the premises upon which we necessarily base everything we do are true.

21 Comments to “The smartest thing I think I’ve ever heard Scalia say”


  1. I don’t think “Darwin on Trial” even addresses intelligent design as a thing separate from creationism, does it? It’s published awfully early to be able to address ID specifically, since it didn’t really come into being until after Edwards v. Aguillard.

    The problem with intelligent design isn’t that people believe in creation or evolution guided by an interventionist god. The problem with intelligent design is that it’s a clean room re-inventing of creationism. Literally a find-and-replace job, in some cases (see the Dover case where evidence shows just that).

    Intelligent design sets forth some very specific technical and mathematical arguments that just don’t hold up under any sort of scrutiny. Because ID intentionally and carefully removes any dependence upon god, you don’t inherit any of the faith arguments. It’s meant so that the faithful can replace “designer” with “god” and ignore the math, but that doesn’t make it a good set of arguments.

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    • John Kindley says:

      There are 4 references to “intelligent design” in the index of the edition of “Darwin on Trial” that I have, which was published in 1993. But it doesn’t elaborate the specific technical and mathematical arguments you refer to. It looks like it’s primarily a critique of Darwinism without advancing ID per se, which at this stage is fine by me.

      I had a real problem with the Dover decision’s emphasis on what it believed to be the school board’s “real” motives for promoting ID. So what if there was some nefarious “wedge strategy” lurking in there somewhere? What should have mattered to the district court was the substance of what they proposed to introduce into the curriculum. I realize the district court also addressed this, but I think that’s basically all it should have addressed.

      While I’m sure all the IDers believe that God creates the universe, I don’t get the sense that many of them, at least in the leadership, are Genesis-bound fundamentalist New Earthers.

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  2. And “truth,” whatever exactly that might be, remains truth regardless of what you or I or anyone else might believe. But the real point is that natural selection, which is the mechanism Darwin posited for evolution (which is not “evolution” in the improving sense, but merely in the sense of changing) is what science teaches. ID, even if true, is not science, though it may wrap itself in a faux scientific lab coat.

    So what ought we teach in a SCIENCE class? That which is science, regardless of whether it’s true, or that which is fake science, regardless of whether it’s true? It seems evident to me that the subject of a science class ought to be science.

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    • John Kindley says:

      Well, as Chris describes ID above (as setting forth some specific technical and mathematical arguments from which intelligent design could presumably be inferred) it seems it could conceivably qualify as science, though Chris tells me those arguments haven’t held up under any kind of scrutiny. (I’ll have to look into that a little more for myself.)

      You say that “science” “teaches” “natural selection.” The word “science” comes from the Latin word for “knowledge.” The fact that it has been more narrowly defined by some doesn’t change the fact that knowledge of what is true is the proper object of the intellect, and the endeavor to know the truth shouldn’t be hindered by how we might arbitrarily divide up the fields of human knowledge.

      I don’t know that science — good science — demonstrates, e.g., that man evolved from apes, via natural selection. That’s precisely what I want to investigate for myself before I’ll believe it.

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      • I don’t presume to know what “the proper object of the intellect.” But I’m comfortable with the idea that if we’re going to have classes in science (and in this world, I think that’s probably a good thing, and certainly it’s the current reality), they ought actually to be classes in what science does. That may or may not make them classes in truth.

        Science is, regardless of the etymological roots of the word, a method of looking at and attempting to understand the universe – big and small. Other methods of looking at and attempting to understand the universe include art, music and literature (each a species of art, of course), history, philosophy, economics, and religion (that’s not an all-inclusive list). Different people value those methods differently. We do a disservice to science when we try to shoehorn religion into it in a different guise, just as we do a disservice to religion when we pretend it’s science.

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  3. If everything we know will ultimately pass into oblivion, will eventually disintegrate into nothing but mindless space dust, then life makes no sense. Then there would be no point in doing anything, including talking or thinking about anything.

    I don’t understand this argument. Why would cosmic transience invalidate what we do? Even if it doesn’t make sense – why does it need to?

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    • Right. And although it’s not what I addressed before, I have to say that my intuition doesn’t indicate that “life makes sense.” Frankly, neither my intuition nor my intellect nor anything else in me even understands what that means. (I assume you’re not merely saying that we’re sensate.)

      I love my wife and children because I do. I read Shakespeare and Spenser, Chaucer and Dante, and also hard boiled detective fiction because they give me pleasure. I practice criminal defense because being a criminal defense lawyer is who and what I am. I argue and pontificate because I care about ideas and language and politics not because I think they’re of some cosmic importance but because they have quotidian value, give me pleasure, and have the chance to make some positive change in a world deeply offensive, mostly wrongheaded, and seriously chaotic.

      I don’t imagine there’s any prime mover in all of that. Never did think there was one. But I suspect that there’s been more at least as much evil done as good in the name of honoring and obeying the putative omnibenevolent, omniscient and omnipotent.

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    • John Kindley says:

      I don’t know. Maybe it is more of an “insight” than an “argument.” (That’s not to imply that an insight is not an act of the intellect; indeed, arguments proceed from insights and have new insights as their very object.) Is that a cop-out? I don’t know.

      Ivan Karamazov said “If God is dead, then everything is permitted.” If we know in our bones that everything is not permitted, maybe that suggests God isn’t dead. (And not simply because we fear punishment from God.)

      You ask why the world needs to make sense. I suspect that might almost be an irreducible question. Every living thing around us appears imbued with a sense of purpose, with an intention of self-preservation.

      Note that my argument, if argument it is, doesn’t imply that if the Earth were to crash into the sun tomorrow then life makes no sense. Rather, it implies that if everything eventually disintegrates into “mindless” space dust then life makes no sense. Here’s the final paragraph of the “argument” from my previous post which I omitted in the post above:

      “I have my doubts about personal immortality in the way it’s generally conceived. But it’s enough that God, in whom we live and move and have our being, and who is more authentically us than we are ourselves, exists. In him no one and nothing is lost, including whatever charm and value we experience from being separate and individual souls during our fleeting time in this world.”

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      • Actually, I wasn’t asking why the world needs to make sense. I was saying that (1) in every way that I can understand the the term, I don’t think or feel it does, and that (2) that doesn’t strike me as the least problematic intuitively, intellectually, or emotionally.

        I don’t think I’ve ever believed in a deity. That doesn’t leave me without a strong set of moral values (and not a particularly eccentric one, by the way) on which I try hard to live my life. I’ve never understood the claim that it is impossible to have a set of morals without there being a god.

        Ultimately, what you’re doing in these arguments is leaping from your own intuitions/sense impressions to the assumptions that they are both universally shared and in some larger sense markers of truth. That’s not argument, it’s solipsism. (Sorry, don’t mean to sound harsh, I know you’re serious about this.) So when you write, e.g., “Every living thing around us appears imbued with a sense of purpose, with an intention of self-preservation,” I’m not sure what to make of it. Either you’re saying that plants and amoebae have actual goals and drives or you’re saying that the mechanism of survival of the fittest (which underlies idea of natural selection) is basically right or you’re making a statement that’s just fundamentally trivial.

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        • John Kindley says:

          Jeff, when I said “you” ask why the world needs to make sense I was referring to Bruce’s comment. I think I hit reply to the wrong comment.

          My remark about “every living thing around us . . .” and about “self-preservation” was pretty random and unclear. What I was getting at was something similar to an argument C.S. Lewis once made: generally we don’t find in nature desires which have no corresponding basis in reality. If thirst exists, generally water exists somewhere also. The desire of things to preserve themselves (although — and this seems important — each and every living thing is actually changing and “dying” every day) suggests that the desire isn’t completely futile and vain.

          I see why you might characterize what I said as “solipsism,” and I’m not offended in the least. I know you’re serious about this too. I was thinking about this last night, and thinking about how I might make myself clearer. I remembered Tolstoy’s Confessions (available online). There came a point in his life when, despite his rampant success in life, he became paralyzed by the awareness of his own impending and inevitable death and that of everyone and everything he loved. What’s it all for, and how could he go on living, he asked himself, and found it for a time agonizingly difficult to do so. Victor Frankl, in his book Man’s Search for Meaning, as I recall talks about much the same thing.

          It may seem presumptuous to extrapolate from my experience and that of Tolstoy and Frankl and others to everyone else, but because it’s not based solely on my own experience I don’t think it’s solipsism. The suggestion is, and I again recognize it may sound awfully presumptuous, that if a man didn’t have a conscious or unconscious sense that life ultimately has sense and meaning (although it may be impossible for him to fully understand and articulate that ultimate sense and meaning) it would be intolerably difficult for him to go on living.

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          • “Yet man is born unto trouble/as the sparks fly upward.” Job, 5:7 KJV.

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          • It feels like you keep trying to insert God into the conversation. Some of us don’t think it matters. You can search for meaning in life and spend your whole life doing so – or you can find it right in front of your nose.

            What has the insertion of God into Frankl or Tolstoys search for meaning actually done for Frankl and Tolstoy? Did it make any manifest difference to their lives?

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          • John Kindley says:

            Bruce: The name of God is fraught with centuries of conceptual baggage. Some of these historical conceptions are good and true, some are bad and false. Only by the light of reason can we discern which is which.

            I personally have found my “conception” of God to be illuminated by the writings of Angelus Silesius. A couple examples from memory:

            “Man, if thou something love, true love thou dost not know; God is not this or that, so let the something go.”

            “Love is like unto death. It kills my every sense. It breaks my heart in me, and takes my spirit hence.”

            “God nothing is at all; and if he something be, Only in me it is, he having chosen me.”

            So I may be among the “us” who don’t think it much matters whether one consciously inserts “God” into the conversation or ascribes to Him the meaning of life.

            The point as it relates to this post and this comment thread is this: Do we think what we do and intend in life matters? If we do, is this compatible with a completely materialistic worldview, with the notion that existence is abjectly purposeless and that nothing but random dumb “luck” explains everything that is? And as I suggested before, if we really in our heart of hearts truly believed that nothing we do matters and that everything we do is futile and vain, life would be exceedingly hard to live — a lot harder than it actually in fact is.

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          • NOTE: I’m actually responding to John’s reply of Oct. 26, at 5:17 p.m., currently no. 13, but the system won’t let me put this reply there.

            I reject your dichotomy. You’re essentially positing a choice in which there’s a world/universe or something with a creator of some sort, some kind of god, which has purpose and direction and in which things “matter” and a world without that creator/god in which “nothing we do matters and that everything we do is futile and vain.” But those aren’t the only options.

            I find it much easier to believe in a universe without a creator/god, one which arose by random quantum or something fluctuation than in a designed universe. But I also think all sorts of things matter and that what we do is not inherently “futile and vain.” We endow the substance. It matters because we make it matter. And if it doesn’t matter, in some cosmic sense, because no overseeing or creative intelligence cares, so what? If things matter to us, then they matter.

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          • John Kindley says:

            Jeff, it seems your last comment itself assumes a dichotomy that is questionable. I can understand why someone might look at the world around us, “red in tooth and claw,” and find it easier to believe that it wasn’t designed by an Intelligence, let alone a benevolent one. On the other hand, Jesus taught that “The Kingdom of God is within you” (incidentally, the title of one of Tolstoy’s books). You recognize that if things matter to us, then they matter. But if all we are are our physical brains, and if therefore things only matter for the duration of our physical brains, then it seems they don’t really matter. Our desire to live our lives honorably would seem to be of no more moment and would seem to matter no more than our momentary desire to eat lunch. Our sense that things matter would then appear to be, on this hypothesis, an illusion inside our heads.

            Some people seem to think that it’s somehow more noble and courageous to conceive of existence in a way that posits no reward for virtue other than virtue itself. But as I’ve said elsewhere, I have my doubts about personal immortality in the way it’s generally conceived. This isn’t a matter of comforting myself and others with dreams of the hereafter. It’s a matter of honoring what I perceive to be real and indeed most real. It’s a matter of honoring the noblest impulses in myself and others, and recognizing that they come from somewhere and that I didn’t on my own invent them out of thin air.

            I’ll grant you one thing though: no argumentative “proof” for the existence of God by itself convinces anyone that God exists.

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  4. The key “scientific” argument that ID makes is the idea of irreducible complexity. It’s a bad argument that apparently relies on people not knowing anything about math or science.

    I’m far more sympathetic to vanilla creationists or to religious people who see the hand of god in the mechanisms that lead to change over time. They’re not claiming to make a science/math argument. There’s nothing in modern biology that necessarily denies god as a creator or god as the source for “random” mutation. There’s plenty in modern biology and math that refutes ID.

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    • John Kindley says:

      Because I know you (even though we’ve never met) and think you’re a smart, honest, and well-informed guy, I’m inclined to take your word for it regarding the merit of the positive “scientific” claims ID makes for now, though I still plan to look a little further into it. Because I’m starting from my default common sense intuition that life makes sense and is not simply and only a random bouncing of molecules off of each other, these “scientific” arguments for ID aren’t all that important to me anyway. Funny how I’ll take your word for it before I’ll take the word of a “consensus” of the “scientific community.”

      But Darwinism itself is a different matter. Seems to me there is a lot to be skeptical of there, and I’m skeptical of your claim that Darwinism says nothing about whether life has any purpose and that Darwinism is compatible with Intelligence in Creation. Here’s a couple passages from the first chapter of Darwin on Trial that I found interesting:

      “A second point that caught my attention was that the very persons who insist upon keeping religion and science separate are eager to use their science as a basis for pronouncements about religion. The literature of Darwinism is full of anti-theistic conclusions, such as that the universe was not designed and has no purpose, and that we humans are the product of blind natural processes that care nothing about us. What is more, these statements are not presented as personal opinions but as the logical implications of evolutionary science.”

      “‘Evolution’ can mean anything from the uncontroversial statement that bacteria ‘evolve’ resistance to antibiotics to the grand metaphysical claim that the universe and mankind ‘evolved’ entirely by purposeless, mechanical forces. A word that elastic is likely to mislead, by implying that we know as much about the grand claim as we do about the small one.”

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      • I’m not aware of any scientific viewpoint that says the current state of the world is “simply and only a random bouncing of molecules off of each other”. In such a world, no selection pressures could exist, there would be no populations, and evolution wouldn’t work. Science, in fact, requires that the world be significantly non-random and non-arbitrary – how else to discover the rules by which it works?

        And let’s skip the term “Darwinism”. The debate’s not between ID/creationism/whatever and the writings of a 130-year-old scientist. A lot has happened in biology since then. Darwin’s not some sort of scientific prophet, and, while his ideas were important, evolutionary biology is no more Darwinism than astronomy is Copernicusism or chemistry is Daltonism. The term is rarely, if ever, used outside of attempts to slander biology.

        Are there people in the scientific community that use evolutions (or astrophysics, geology, etc.) to attack faith and advocate for anti-theistic conclusions? Of course there are. Does that mean that those beliefs are universally held among the population of scientists or the set of people that find evolution to be a convincing model of natural phenomenon? That’s a hard argument to make, and one that I have evidence in my home to refute.

        Models of evolution do assume that the processes that create randomization and selection are blind natural processes that don’t care about the result.

        The blind, uncaring natural process is the parsimonious version of the theory – to add intentionality and agency would require scientific proof for both. An interventionist god, pretty much by definition, can’t be proven scientifically, and the theory does fine without one, so why include it? But that coin has two sides – who is to say that some/all transcription “errors”, “stray” cosmic rays, etc. aren’t due to intervention by a force that does care and have a goal in mind? Or that this process is a natural one that operates within a created world, much like photosynthesis or weather?

        “Ah”, you say, “but that’s what intelligent design argues”. Sadly, no, it isn’t. Theistic evolution and ID are not the same.

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        • John Kindley says:

          Well said. I do recognize that theistic evolution and ID are not the same. In fact, I remember from back in my Catholic days that the Catholic Church takes the position that theistic evolution is not necessarily incompatible with the belief that God creates the world. That is, we could have “evolved” from apes, but if we did God had a hand — or rather the hand — in man’s emergence. The Church, however, as I understand it doesn’t take a position on whether man did in fact evolve from apes, while affirming that science is a very good thing and does not conflict with “Faith.”

          I’ve become less, not more, fundamentalistic since my Catholic days.

          My original comment on Althouse, my reiteration of that comment on Popehat, and my post here are not so much reactions to a perceived threat to belief in God (though there is undeniably a bit of a culture war going on here) as a reaction to what I perceive as an overreliance on what others tell us about what “science says” and the outright dismissal without a hearing of dissenting viewpoints based on purported biases. You seem more informed than most and therefore more entitled to an opinion, and I appreciate that.

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  5. To begin with, I do not believe that evolutionary biology does teach that man is descended from apes. The current theory, as I understand it, is that men and apes have a common ancestor.

    Also, I don’t think that belief in God or Intelligent Design solves the problem of giving meaning to life. Unless you already believe in some normative vision, how do you distinguish between a good God, a morally neutral god, like those the Greeks and Norse believed in, and a very powerful Devil who, for his own inscrutable purposes, isn’t making life hell just at the moment? The mere fact that a very powerful being created you and wants you to do certain things doesn’t tell you whether doing those thing is good.

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    • John Kindley says:

      Thanks for your comment, and good to hear from you. A little odd that it’s on a post that’s over 3 years old. I wonder what prompted it?

      I think conceiving of God as external to us is an error and leads to the insolubility of the problem of evil and to the reasonable doubts you describe. I find my lights in Meister Eckhart, Angelus Silesius, Max Stirner, and Ernst Juenger. Several of my recent posts relate Juenger’s “conception” of God, which is also my own. Eckhart said God is nearer to us than we are to ourselves. It could also be said that God is more us than we are ourselves. Angelus Silesius wrote “Thou art the I in me . . .,” and also “God cannot be without me.” Hence the significance of Jesus’ teaching that we are “sons of God.” The son is equal to the father. As Jesus said “Before Abraham was, I am,” I am prone to say “Before Jesus was, I am,” or even “Before God was, I am.”

      I’ve tried to do a little reading on atheism lately. I noted the argument that infants are born atheists, as they have no conception of God. I might respond to that that infants also have no conception of dying.

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