It Just Takes One
February 9, 2004
Run and edited entirely by students, the Harvard Law Review may be the most prestigious legal journal in the country. According to the Harvard Gazette, its circulation—roughly 8,000—is the largest of “any law journal in the world.” And the Review's influence extends far beyond the number of copies lying around. Partly thanks to the Harvard name, publication in this journal automatically elevates an academic’s legal scholarship above the rest of the pack.
Given all this, it was more than a tad shocking to find a highly promotional article about the latest pseudoscientific rival to Darwin’s theory of evolution—so-called “Intelligent Design” theory (ID)—in the January, 2004 Harvard Law Review. Several thousand words in length and titled, “Not Your Daddy’s Fundamentalism: Intelligent Design in the Classroom,” the piece glowingly reviewed Francis J. Beckwith’s Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design, a recent book arguing that teaching ID in public schools would be legal under the First Amendment. Beckwith, the anonymous reviewer writes, ”persuasively argues that presentation of ID in public schools would not impermissibly ‘establish’ religion"; he “provides four potent secular reasons why schools may permit or require the presentation of ID"; he ”pulls the trigger in the final chapter"; and so on (italics added).
In light of such stroking, it’s no surprise that pro-ID groups like the Access Research Network and the Alliance Defense Fund quickly cited or linked to the piece. The Seattle-based Discovery Institute, the granddaddy of ID organizations, even seemed to hint that the unsigned article represented the institutional view of the Harvard Law Review. “By: Harvard Law Review,” proclaimed Discovery on a web page that is now blank, but that used to contain a full length reposting of the Harvard Law Review piece (I printed out a copy on January 19).
In fact, the article was an unsigned “book note” and, like all law review “notes,” was written by a student editor. It did not represent the views of the Harvard Law Review, as president Daniel Kirschner assured me when I called him to inquire. (Though other leading law journals like the Stanford Law Review do identify the authors of student notes, the Harvard Law Review has stuck with traditional anonymity.)
Still, you can understand why a rave review in the Harvard Law Review would get the ID crowd excited. Such a publication represents intellectual legitimization of a sort that traditional creationists never achieved. “The whole game plan here is to credential the movement,” observes Florida State University law professor Steven Gey, a specialist in legal issues surrounding the teaching of evolution. Gey calls the Harvard Law Review piece “very weak” in its assessment of the legal case for teaching ID in public schools. But he adds, “I suspect this Harvard note is going to cause problems. I suspect they're going to make reprints and scatter it here and yon, as if this were really some valid legal approach.”
For this P.R. victory, the ID movement can thank the inner workings of student law journals. All Harvard Law Review student editors get to publish a total of three articles, and to say more or less whatever they want. “Basically, the policy is to let students express their own opinions through the pieces,” says Kirschner. “They're not at all vetted for their ideologies.” In this case, the article in question was authored by a law student named Lawrence VanDyke. VanDyke politely declined, by e-mail, to be interviewed for this column. But given what he’s written, it’s safe to assume that he’s highly sympathetic to the arguments of ID promoters like Francis Beckwith. It only takes one such person—placed at the Harvard Law Review, anyway—to provide the ID movement with an impressive form of legitimization.
The point of this column isn’t to call for the censorship of pro-ID viewpoints, whether in the Harvard Law Review or elsewhere. Rather, it’s to explore the process whereby the pseudoscientific ID movement enhances its credibility and achieves the “credentialing” described by Gey. By showing just how easily this can happen, this column should help promote a greater skepticism of ID claims even when they receive favorable treatment in legitimizing outlets like newspapers and law reviews.
Furthermore, given that ID proponents are clearly gearing up to use them in court, it’s important to answer the legal arguments laid out by Beckwith and endorsed by VanDyke. Legally speaking, the pro-ID case is very weak, and relies heavily upon a highly questionable description of what Intelligent Design theory actually is. Still, it demands refutation.
At its core, “Not Your Daddy’s Fundamentalism” reiterates Francis Beckwith’s argument that because ID does not represent a religious theory—but, rather, is scientific in nature—it can be taught as science under the First Amendment, which bans government establishment of religion. In the process, the article recycles numerous Discovery Institute talking points. Once these claims are refuted, the legal argument for teaching ID to public school students crumbles.
The first dubious contention of “Not Your Daddy’s Fundamentalism” is that Intelligent Design represents a scientific theory. For example, the piece describes the ID movement as a “small but tenacious group of sophisticated and well-credentialed scientists, philosophers, and legal scholars,” and discusses the “scientific evidence” that favors ID as well as its “scientific and philosophical basis.” From such language, you would hardly know that the American Association for the Advancement of Science (AAAS), the world’s preeminent scientific organization, has adopted a resolution explicitly stating that ID is not science.
In omitting this telling fact, the Harvard Law Review piece doesn't merely misrepresent ID; it also fails as a piece of legal analysis. After all, the opposition of AAAS, not to mention the National Academy of Sciences (NAS), represents a rather huge impediment to the constitutional case for teaching ID in public schools. Just think: If it ever came to a major court challenge, it’s a safe bet that scientific groups like the AAAS and the NAS, as well as scores of Nobel laureates, would sign on to amicus briefs labeling ID for what it really is—a pseudoscientific religious theory with no place in science classes. Such documents would have immense weight with virtually any judge.
Even more astonishingly, the Harvard Law Review piece paints the ID movement as entirely divorced from religion, citing its “exclusive focus on empirical evidence and philosophical argument.” This statement is extremely misleading. As Barbara Forrest and Paul R. Gross document in their new book Creationism’s Trojan Horse: The Wedge of Intelligent Design (Oxford: 2004), there’s virtually nothing to Intelligent Design but religion. The leading ID organization, the Discovery Institute, owes its most generous funding to three conservative Christian foundations: The Stewardship Foundation, the Maclellan Foundation, and Howard F. Ahmanson’s Fieldstead & Company. The latter connection is particularly troubling, giving Ahmanson’s longstanding ties to the theocratic Christian Reconstructionist movement.
Meanwhile, Discovery’s major players—Phillip Johnson, Stephen Meyer, William Dembski, Jonathan Wells—have all outwardly confessed their religious motivations. As Dembski put it in Touchstone magazine in 1999, “intelligent design is just the Logos theology of John’s Gospel restated in the idiom of information theory.” Wells, a member of Sun Myung Moon’s Unification Church, has even written that “Father’s words, my studies, and my prayers convinced me that I should devote my life to destroying Darwinism.”
Once again, the Harvard Law Review piece’s failure to note any of this torpedoes its legal analysis. The motivations and funding sources of ID proponents, explains Gey, would be highly relevant to any serious legal consideration of whether ID can be taught in public schools under the First Amendment’s Establishment Clause. Gey cites the 1987 U.S. Supreme Court case Edwards v. Aguillard, in which the Court struck down, by a 7-2 vote, a Louisiana law that required equal treatment for creationism in schools. “The Court went into actually the existence of these creationist institutes, it looked at the founding documents of the institutes, and looked at the fundamentalist religious statements of principle by these institutes,” says Gey. “And the Court said, ‘look, if this is who’s pushing the statute, then this is clearly motivated by a religious purpose, and that’s unconstitutional.'”
Precisely the same thing would happen with ID if it came to a court challenge, of course. Indeed, the very notion that ID—which centrally postulates the existence of an Intelligent Designer (God)—doesn't count as “religion” for legal purposes is absurd.
And there’s yet another glaring weakness in the legal analysis provided by the Harvard Law Review piece. The review spends much of its time outlining evolution’s supposed connection with “methodological naturalism,” a philosophy that excludes the possibility of supernatural causes in explaining the way the world works. The idea seems to be that for Establishment Clause purposes, evolution may be just as much a religion as creationism. And it’s true that many evolutionary biologists are atheists. But once again, a crucial fact that contradicts the argument goes unmentioned: The pope himself has said that evolution presents no conflict with Catholic views. “I’m not sure that the pope would embrace methodological naturalism, it’s just not really part of his game plan,” says Gey.
Given all these legal weaknesses, the ID movement may have a rude awakening in store if it ever makes it to the Supreme Court. For now, though, the ID gang has made it into the pages of the Harvard Law Review, and that must feel pretty good. The legal arguments are now in place; the movement has made a kind of first lunge up the courthouse steps. Defenders of scientific science education should steady themselves for more.