Alschuler’s confusions


Steve Story pointed out to me that I had failed to provide a reference to Alschuler, who is a distinguished criminal law expert at the university of Chicago

The Dover Intelligent Design Decision, Part II: Of Science and Religion

Albert Alschuler Wrote:

The Dover court is wrong, however, when it says that anything that “implicates” religion also “endorses” it.

Alschuler is talking about a part of the endorsement analysis presented by Judge Jones where Jones considers the letters and editorials introduced, as prima facia evidence of endorsement.

Judge Jones Wrote:

Accordingly, the letters and editorials are relevant to, and provide evidence of, the Dover community’s collective social judgment about the curriculum change because they demonstrate that “[r]egardless of the listener’s support for, or objection to,” the curriculum change, the community and hence the objective observer who personifies it, cannot help but see that the ID Policy implicates and thus endorses religion.

As the Judge argues, the letters and editorials provide substantial additional evidence that the community perceives the ID policy as endorsing a particular religious view.

Opponents of ID might ask themselves whether, if they did not regard ID’s scientific claims as junk – if they concluded that ID posed a serious intellectual challenge to Darwinism – they would nevertheless forbid discussing it in the schools because it is religious.

This is a strawman argument, and although various ID proponents have raised a similar objection, they are wrong for the simple reason that Judge Jones used the scientific vacuity as essential to the endorsement finding.

Judge Jones Wrote:

Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

In other words, as the DI argued, if it could be shown that ID does not primarily have the effect of endorsing religion, it would pass constitutional muster. The DI Amicus Brief continues to argue that ID is science and scientifically relevant. Since the Judge observes however that ID is purely a negative argument, his ruling cannot be seen as making the strawman argument presented by Alschuler. Judge Jones recognizes that ID may be correct

Judge Jones Wrote:

After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science.

So what about “teaching the controversy” where ID serves a secondary purpose of arguing how certain features may be unlikely to have arise via Darwinian mechanisms?

Judge Jones Wrote:

Moreover, ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. To conclude and reiterate, we express no opinion on the ultimate veracity of ID as a supernatural explanation. However, we commend to the attention of those who are inclined to superficially consider ID to be a true “scientific” alternative to evolution without a true understanding of the concept the foregoing detailed analysis. It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science.

ID’s entanglement of religion and ‘Darwinian criticism’ and its avoidance of scientific relevance have made the ID concepts scientifically vacuous. Science continuously raises challenges against Darwinian theory and evolutionary theory and thus if ID wishes to contribute scientifically relevant arguments, they are surely free to do so. So far however, the few ID arguments against evolution have been poorly argued and unnecessarily intertwined with religious concepts.

Alschuler Wrote:

The academic role of the ID biologist is essentially negative – to challenge Darwinist explanations and look for phenomena that the Darwinists cannot explain or, more realistically, can explain only by stretching. This critical role (“look at all those epicycles”) cannot fairly be excluded from science.

Nor is ID excluded from science if it were to play such a role. In fact Del Ratzsch has argued that this may be the role ID may play “keeping science honest”. What the Judge found however is that ID’s motivation is not to “teach the controversy” but rather replace evolutionary theory with “intelligent design”. By conflating these two purposes/roles, ID has unnecessarily and irrepairably intertwined itself with its creationist antecedents.

Judge Jones Wrote:

In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

Alschuler Wrote:

If the court’s point were simply that science excludes faith, mysticism, revelation, and appeals to unchallengeable authority, the proponents of ID would agree. But nothing can be said for a convention that excludes intelligent design by fiat if that is where the evidence leads.

But that’s not where the evidence leads. And certainly Intelligent Design has nothing not to contribute to ‘where the evidence leads’ as ID is not about positive arguments. It can only argue where the evidence does not lead.

Alschuler Wrote:

The exclusion of ID from science “by definition and by convention” becomes particularly unfair when ID and natural selection provide competing explanations of the same phenomena.

Another common misconception. ID does not provide ANY competing explanation. It is scientifically vacuous. Alschuler may prove me wrong by presenting such an alternative scientific explanation. Not evolution is NO explanation. ID is not about presenting explanations or ‘pathetic details’… Just ask Dembski.


“What the Judge found however is that ID’s motivation is not to “teach the controversy” but rather replace evolutionary theory with “intelligent design”. By conflating these two purposes/roles, ID has unnecessarily and irrepairably intertwined itself with its creationist antecedents.”

It seems to me that you are conflating proponents of ID (it is people who have motivations and who conflate things) with concepts/notions of ID. How could ID have “irreparably intertwined itself with its creationist antecedents,” and why should the origins of a set of concepts *alone* be enough to make it religious/unconstitutional?

There *could* be something scientific developed out of ID. There hasn’t yet, but it could happen, and the mere fact that it came out of ID wouldn’t be enough to make it religious. Where ID as presented in the Dover case (in the form of Of Pandas and People) failed is that it really was identical to the same old creationism, relabeled.

I missed the part where you explained who Alschuler was.

There’s a previous thread where the Altschuler guy–some sort of very-poor-lawyer/law professor–makes a fool of himself Part I…

I have updated my posting to give the missing info. Thanks Steve

Oops! I see my previous post was unnecessary…so quickly did the thread’s originator respond.

Way to go! And sorry about that.

Ah, I didn’t see the previous post about Alschuler. I’m sneakily using someone else’s Wifi connection in my Apt complex until the Time Warner people get here, and it’s been really crappy today.

Typical, put a law professor in a room and get 15 opinions, 14 1/2 of them with no basis in reality.

Actually, I am entirely unsurprised by Alschuler’s position, given that he’s a criminal law oriented law professor. (For a bonus point, can you name the criminal law oriented law professor who essentially started this whole mess?) There are two “mindset factors” that independently predispose a criminal law oriented attorney (let alone professor) to this error:

(1) In criminal law, the burden of proof is almost always “beyond a reasonable doubt.” The assumption that Professor Alchuler (and the other unnamed guy makes) is that this is also the correct standard of proof for evaluating the Establishment Clause. It is not. “Strict scrutiny” is not an analog to “beyond a reasonable doubt”; all that “strict scrutiny” says is “intent isn’t just interesting, but a critical element of the matter.” The standard of proof, however, remains the same as for all civil cases: preponderance of the evidence, also called “more probable than not.” This is an understandable, and probably unconscious, mistake easily (and commonly) made when criminal law types comment on civil law (not Civil Law) issues, and vice versa.

(2) More invidiously, though, there is the question of “Who is the defendant, who gets the benefit of not having the burden of persuasion?” This is independent of the burden of proof; it is roughly the converse of “the tie goes to the runner” for some value of “a tie.” The subtext of the ID movement is that ID is the “defendant,” and science is obligated to prove itself. We don’t need to consider whether ID or evolutionary theory is the default condition that the other side must attack on their merits; the Constitution (and case law interpreting it) answer that question for us. Establishment Clause jurisprudence mandates (and the clause itself implies) that the “defendant” who need not “prove” its validity is always the non-religious-doctrine side. Thus, as soon as one establishes (pun intended) the connection between ID and religious doctrine, the burden of proof falls on ID.

Put these two mindsets together, and it’s pretty easy to see why Judge Jones is correct and Professor Alschuler (and his unnamed colleague�that bonus point is still available!) is not.

Jim Lippard Wrote:

“There *could* be something scientific developed out of ID. There hasn’t yet, but it could happen,…

- emphasis added by me.

There “could” be something scientific developed out of scientific creationism, too. Since, you know, they’re the same thing.

But it hasn’t.

So ID, like creationism, is not science.

In the meantime, while we’re waiting for the robust theory if ID to develop through experimentation and peer reviewed publication, proponents of ID wish the courts to ignore that the only thing holding ID up to the masses is a serving tray of religion, and the only morsels on the tray are tired old anti-evolution arguments first posited by scientific creationism. Hmmmm. How possibly could Judge Jones have ruled this as religious?! Huh.

(For a bonus point, can you name the criminal law oriented law professor who essentially started this whole mess?)

Hint; he also doesn’t believe that HIV causes AIDS.

Some of you may have met me through the NCSE. I know Professor Alschuler well, and while I may not agree with his posts over at that blog, he deserves respect and serious consideration. I don’t think he’s in any confusion about the burden of proof.

Mr Mahnke, I do not know Professor Alschuler. Based upon some of the language in his writings upon Kitzmiller, though, I don’t agree; I do see signs of confusion—possibly subconscious, but confusion nonetheless—on the burden of proof and the burder of persuasion in First Amendment litigation. Admittedly, Alschuler’s confusion is not nearly so obvious as the unnamed other criminal law professor (nobody has picked up the bonus point yet)… nor, so far as I can tell, willful (again, in contrast).

Thus, we’ll have to agree to disagree on this. That’s what the scholarly are supposed to do; we’re not supposed to accuse those who disagree with us of being blind, enthusiastic acolytes of the evil alternative to our own preferred deity.

I exchanged some thoughts with Professor Alschuler by e-mail, but because I now work for the federal government I would rather not post legal analysis here or on the comments at the U of C blog. I don’t think Alschuler was trying to stick to the Establishment Clause jurisprudence that lower courts must follow. For example, I think he questions whether the intent behind a government action should have anything to do with the analysis, although the caselaw is pretty clear on the point.

Fyi, Part III is up with Alschuler peddling more of the same vapid nonsense.[…]ent-12564910

What I enjoyed about Alschuler’s latest effort is his subtly interesting illustration of the “Christian persecution syndrome.” He claims Jones errs in making the claim that evolution is consistent with mainstream religion. Clearly, evolution is not consistent with Alschuler’s religion. So when scientists describe how they think evolution works according to the evidence, Alschuler notes that they are contradicting HIS beliefs, therefore “the scientists who debunk this argument must have entered the religious sphere, not the other way around.” This is exactly like saying that if you slug some unsuspecting schmuck in the face with your fist, the schmuck has “entered the fighting sphere” and it’s HIS fault as much as yours.

In saying that ID is not scientific, scientists have made a “traditional religious argument”, which means THEIR religion is allowed in school but HIS is not. No fairsies, he called it!

This seems to be a regular pattern. The Christian lays claim to somewhere he has no business, and whoever defends their territory against the Christians are persecuting them!

He continues on making one self-serving logical or factual error after another. Really kind of sad, but I see it with engineers I work with all the time. They can have steel-trap minds in every other respect, but cross the line into the “sphere of their faith” and their logic, knowledge, and abilities are instantly and fully abandoned. It’s like riding a fast train from bright sunlight into a tunnel.

He claims Jones errs in making the claim that evolution is consistent with mainstream religion. Clearly, evolution is not consistent with Alschuler’s religion.

This post would have been more interesting if it had anything to do with what Alschuler actually wrote.

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This page contains a single entry by PvM published on December 27, 2005 2:40 PM.

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