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What Law Students Are Learning About Intelligent Design

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A law student at the University of Washington recently let us know what the textbook in his education law class, American Public School Law by Kern Alexander and M. David Alexander, has to say about intelligent design. I was disappointed, but hardly shocked, to learn that the textbook adopts a grossly unbalanced approach to the issue, promotes incredible misinformation and is riddled with misstatements. But I was surprised to see how little the authors actually knew about intelligent design.

Let's jump right in. On page 381, the book states:

The latest attempt to insert creationism into the classroom is what is known as the Theory of Intelligent Design. The theory is that all of the complex natural phenomena could not have happened randomly; there had to be a design and a designer. Since the concept of the designer does not require a biblical interpretation, its advocates believe that it could possibly pass constitutional muster. Some states have proposed that science standards be rewritten to include requiring teachers to compare and contrast the design hypothesis with evidence that supports evolution.
So first off we see the equation of intelligent design (ID) with creationism. Is ID a form of "creationism"? For the purpose of a legal textbook, surely it's important to see how courts have defined creationism. When the U.S. Supreme Court defined creationism, they found that it "embodies the religious belief that a supernatural creator was responsible for the creation of humankind." Leading scholars on both sides of this debate agree that creationism generally holds that "supernatural" powers created life. Even under this broad definition of creationism, ID is not creationism. This is because ID does not try to address questions about whether the designer acting in biological nature is natural or supernatural, and in fact explicitly allows that the designer could have been natural. (We've discussed this before in detail; see "ID Does Not Address Religious Claims About the Supernatural.") As should be clear, then, intelligent design lacks the key defining characteristic that makes creationism both unscientific and unconstitutional.

American Public School Law goes on to cite the Kitzmiller v. Dover ruling as having demonstrated that intelligent design is creationism. Does the evidence from that case in fact show that intelligent design fits the U.S. Supreme Court's definition of creationism? Here's how biologist Scott Minnich testified in explaining intelligent design to the court:

Q. Do you have an opinion as to whether intelligent design requires the action of a supernatural creator?
A. I do.
Q. What is that opinion?
A. It does not.

(Scott Minnich testimony, November 3, 2005.)
Or as Michael Behe testified:
Q. So is it accurate for people to claim or to represent that intelligent design holds that the designer was God?
Behe: No, that is completely inaccurate.
Q. Well, people have asked you your opinion as to who you believe the designer is, is that correct?
Behe: That is right.
Q. Has science answered that question?
Behe: No, science has not done so.
Q. And I believe you have answered on occasion that you believe the designer is God, is that correct?
Behe: Yes, that's correct.
Q. Are you making a scientific claim with that answer?
Behe: No, I conclude that based on theological and philosophical and historical factors.

(Michael Behe testimony, October 17, 2005.)

The judge in the case, John E. Jones, refused to allow ID proponents to define their own theory and ignored this testimony in his ruling. But far from being a mere exercise in rhetoric, Behe's argument is principled, based on a commitment to respect the limits of science. His belief in God is not a hard-and fast conclusion of intelligent design, but something he concludes for different reasons, "based on theological and philosophical and historical factors." He makes clear that ID doesn't identify the designer.

For example, let's say (for the sake of argument) that the DNA encoding the bacterial flagellum gives evidence that it did not arise by a random and unguided process like Darwinian evolution, but instead arose by a non-random and intelligently directed process. The raw data here is a highly complex molecular machine encoded by information in DNA. But that genetic information, and that machine has no way of directly telling us whether the designer is Yahweh, Buddha, Yoda, or some other source of intelligent agency. Based on our present knowledge, identifying the designer lies beyond the competence of science. It is strictly a philosophical or theological matter and, for the scientific theory of ID, it is beyond its scope. Since ID is based solely upon empirical data, the theory must remain silent on such questions.

Moving along, American Public School Law repeats a crude version of the standard Darwin Lobby metanarrative about how creationism "evolved":

The efforts of Christian Fundamentalists to insert the biblical Book of Genesis' explanation into the teaching of science in the public school classroom evolved in stages from direct state prohibitions to teaching Darwinian evolution, to teaching creation as a science, to balanced treatment of both creationism and evolution, and finally to the latest intelligent design movement (IDM). (American Public School Law, p. 381)
Well, here's another way of looking at it:

The efforts of Darwinian Fundamentalists to insert materialist explanations into the teaching of science in the public school classroom evolved in stages from opposing direct state prohibitions to teaching Darwinian evolution, to opposing balanced treatment of both creationism and evolution, to opposing any mention of scientific alternatives like intelligent design, to refusing to allow even mainstream scientific critiques of their viewpoint to be taught. Thus, while Evolution activists might have had the moral high ground in 1925 during the Scopes trial, Justice Scalia notes that today we have "Scopes in Reverse," where they try to censor critics by creating a climate of fear and intimidation.

But I digress. The textbook goes on to promote the Darwin Lobby's account of how intelligent design came to be:

Evidence in the case indicated how the progenitors of intelligent design had adapted their wording and tactics immediately after the U.S. Supreme Court decision in Edwards v. Aguillard. Edwards had struck down a legislative attempt to give "balanced-treatment" to "creation science" along with evolution in public school science classes. The federal court in Pennsylvania said that: "The weight of the evidence clearly demonstrates . . . that the systemic change from 'creation' to 'intelligent design' occurred sometime in 1987, after the Supreme Court's important Edwards decision. This compelling evidence strongly supports plaintiff's assertion that ID is creationism relabeled." (American Public School Law, p. 381, internal citations omitted)
We've discussed this false history of intelligent design many times here on ENV before. In short, the claim is that pre-publication drafts of an early ID textbook, Of Pandas and People, show ID is "creationism" because they used the term "creation." The actual theory of intelligent design in 2013 is being judged by the word choice employed by some writers back almost 30 years earlier in the mid-1980s in the early drafts of a textbook that were never published. We explained what really happened in our law review article "Intelligent Design Will Survive Kitzmiller v. Dover":
In more recent decades, the resurgence of ID in science and philosophy arose from the confluence of information theory with the discoveries of the astonishingly complex and digital nature of DNA and cell engineering. It was not a response to the legal flaws associated with Biblical creationism, but a recognition that the mechanisms proposed by neo-Darwinism could not adequately explain the informational and irreducible properties of living systems that were increasingly being identified in biological literature as identical to features common in language and engineered machines. The term "intelligent design" appears to have been coined in its contemporary usage by cosmologist Dr. Fred Hoyle and soon thereafter Dr. Charles Thaxton, a chemist and academic editor for the Pandas textbook, adopted the term after hearing it mentioned by a NASA engineer. Thaxton's adoption of the term was not an attempt to evade a court decision, but rather to distinguish ID from creationism, because, in contrast to creationism, ID sought to stay solely within the empirical domain:
I wasn't comfortable with the typical vocabulary that for the most part creationists were using because it didn't express what I was trying to do. They were wanting to bring God into the discussion, and I was wanting to stay within the empirical domain and do what you can do legitimately there.
In their effort to tie ID to creationism, the plaintiffs introduced as their "smoking gun" a comparison of the language in early pre-publication drafts of Pandas that used the term "creation" and later pre-publication drafts as well as published editions that used the term "intelligent design." They alleged the terminology was switched merely in an effort to evade the Edwards v. Aguillard ruling, which found "creation science" unconstitutional. But the plaintiffs (and Judge Jones, who relied on them) were wrong both historically and conceptually.

Historically, it is clear (as just pointed out) that the research that generated the Pandas textbook came years before any of the litigation over "creation science." Conceptually, early drafts of Pandas, although they used the word "creation," did not advocate "creationism" as that term was defined by the Supreme Court.

In Edwards v. Aguillard, the Supreme Court found that creationism was religion because it referred to a "supernatural creator." Yet long before Edwards, pre-publication drafts of Pandas specifically rejected the view that science could determine whether an intelligent cause identified through the scientific method was supernatural. A pre-Edwards draft argued that "observable instances of information cannot tell us if the intellect behind them is natural or supernatural. This is not a question that science can answer." The same draft explicitly rejected William Paley's eighteenth century design arguments because they unscientifically "extrapolate to the supernatural" from the empirical data.

The draft stated that Paley was wrong because "there was no basis in uniform experience for going from nature to the supernatural, for inferring an unobserved supernatural cause from an observed effect." Another pre-publication draft made similar arguments: "[W]e cannot learn [about the supernatural] through uniform sensory experience . . . and so to teach it in science classes would be out of place . . . [S]cience can identify an intellect, but is powerless to tell us if that intellect is within the universe or beyond it."

By unequivocally affirming that the empirical evidence of science "cannot tell us if the intellect behind [the information in life] is natural or supernatural" it is evident that these pre-publication drafts of Pandas meant something very different by "creation" than did the Supreme Court in Edwards v. Aguillard, in which the Court defined creationism as religion because it postulated a "supernatural creator."

(David DeWolf, John West, and Casey Luskin, "Intelligent Design Will Survive Kitzmiller v. Dover," Montana Law Review, Vol. 68:7 (Winter, 2007) (internal citations omitted).)

Jonathan Witt also has a wonderful discussion of the history of ID, "The Origin of Intelligent Design: A Brief History of the Scientific Theory of Intelligent Design." Our law review article went on to point out the danger of Judge Jones's reasoning:
Even if early editions of Pandas had embraced "creationism" in the way alleged by Judge Jones, the removal of creationist terminology should have protected Pandas, not rendered the textbook unconstitutional. While there are no canons of textbook interpretation, traditional rules for statutory interpretation suggest that language removed from an earlier draft of a statute should be understood as a rejection of that language. This form of reasoning is common among scholars of constitutional law, who refer to language rejected from drafts of constitutional amendments in order to determine what was not the intent of the Framers. Had Judge Jones fairly applied such a canon of construction to Pandas, Thaxton's exclusion of the word "creation" should have been properly understood by Judge Jones as a rejection of some aspect of creationism.

Judge Jones's inquiry into pre-publication drafts of Pandas presents a troubling development for those who support freedom of the press for textbook publishers. In his inquiry, pre-publication drafts, which never saw the light of day, were used against the final published version of the Pandas textbook. The judge construed language which was removed as relevant to the final published version. This effectively removes the ability of editors of textbooks for usage in public schools to improve upon their terminology, language, and arguments so as to ensure constitutionality of the material. The truth is that, from its early days, ID was formulated as something distinct from what caused the Supreme Court to declare creationism unconstitutional. This formulation took place prior to the Edwards ruling, and stemmed from a desire to construct a scientific theory distinct from creationism that did not stray into unscientific religious questions about the divine or the supernatural.

(David DeWolf, John West, and Casey Luskin, "Intelligent Design Will Survive Kitzmiller v. Dover," Montana Law Review, Vol. 68:7 (Winter, 2007) (internal citations omitted). For another discussion of the pre-publication drafts of Pandas see New England Journal of Medicine Traipses Into the Kitzmiller Decision.)

Unfortunately, the textbook doesn't just get the early history of ID wrong. After assuring the reader that ID is just a form of creationism, it goes on to finally attempt to define intelligent design resulting in a botched discussion that is amazingly incomplete and outdated. It states:
The intelligent design theory was revived from the work of eighteenth-century theologian William Paley, who wrote a well-known treatise in 1802 entitled Natural Theology -- or Evidence of the Existence and Attributes of the Deity Collected from the Appearances of Nature, an intellectual exposition of the "Argument for Design," the argument for the existence of a God.... Paley then asks what the beginning was of something as intricate and delicate as the human eye, and he concludes that the eye must have had a designer. Paley thereby attempts to explain the creation as the work of God, the watchmaker. This is the "intelligent design theory." (American Public School Law, p. 382)
This is "the 'intelligent design theory'"? Really? Nothing more than how "Paley thereby attempts to explain the creation as the work of God, the watchmaker"? No mention of any modern ID theorists, such as those who have lived in the past 100 years? No mention of irreducible complexity or specified complexity? Just Paley -- and nothing more.

This doesn't even rise to the level of Wikipedia's treatment of ID -- itself a tangle of bias, errors and distortions. The authors must have learned everything they know about intelligent design from Judge Jones's inaccurate ruling, rather than considering what ID proponents say about their theory. Sadly, this is the level of discourse from high-profile ID-critics in the legal community. In other words, this is what some law students are learning about intelligent design.

Image: University of Washington Law School, dailybeatz/Flickr.