Professor Jay Wexler’s article on the Kitzmiller_case, _Kitzmiller And The “Is It Science?” Question, 5 First Amend. L. Rev. 90 (2006), has been the source of some glee for Creationist Casey Luskin. In the article, Wexler contends that Judge Jones’s finding that Intelligent Design isn’t science was unnecessary and unwise. Luskin, never one for, you know, legal thinking, immediately pounced on the article to say that Wexler “agreed in print with my position on this question.” Now that I’ve seen the article, I can say that, as is typical for Luskin, this is at best a half truth.
Wexler’s argument is that Jones needed only to find that Intelligent Design is religion, not to discuss whether or not ID might also qualify as science, or whether it is impossible for the two to cross over. For example, writes Wexler, “[w]hat if…a scientist performed a study indicating that there is at least some scientific support for the idea that people are reincarnated after death…? Would the existence of this one study allow schools to teach reincarnation as fact, even if most reasonable people still view the idea as religious? Does a certain belief cease being religious as soon as science steps into the picture, no matter how slightly? This hypothetical suggests the answer is ‘no.’“_Id._at 98. In other words, the fact that ID is religion is alone sufficient to prohibit government schools from teaching it as fact, regardless of any scientific bona fides it might or might not have. Not exactly Creationist Luskin’s view.
Judges, Wexler continues, are not well suited to determining what is or is not science. And their attempts to do so might be dangerous, because they might
open the door to future manipulation…. [I]f one judge can practice philosophy of science, what is to stop others from doing the same? Perhaps the next judge to hear an ID case will decide that science simply means “the process of searching for the best logical explanations for observed data.” In that case, schools might be allowed to teach not only ID but also perhaps the whole kit and caboodle of young earth Creationism. Is this really a can of worms that ID opponents want to open?
Id. at 107-08.
I disagree with Wexler’s analysis. First, the question of whether ID is science was relevant, because ID’s scientific masquerade is precisely what makes ID new, in comparison to the older versions of creationism. Analyzing whether ID is science is helpful in the overall analysis of whether it is constitutional for a school to teach it. Not dispositive, no—but helpful, and as Wexler notes, determining whether something is unconstitutional endorsement of religion “is necessarily a fact-intensive inquiry that considers the entire circumstances surrounding a government action or policy.” _Id._at 98. Wexler is right to say that ID’s religious nature is itself sufficient to make it out of bounds for government schools, but since ID claims to be scientific, it is important to conduct that analysis as well.
Moreover, as Wexler acknowledges, judges routinely engage in defining terms, or analyzing whether certain facts satisfy those terms. While it is true that judges usually do this with words that are “contained in concrete legal sources such as statutes, regulations, executive orders, or perhaps judicial opinions from higher courts,” id._at 101, this is far from being always the case. Every law student knows the famous _Frigaliment_case, which begins, “The issue is, what is chicken?” _Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp 116, 117 (S.D.N.Y. 1960). And there are many other examples of courts using trade practices or, of course, dictionaries, to determine the meaning of words used in a layman’s sense or in a technical sense outside of law. See, e.g., Matrix Intern. Textiles, Inc. v. Jolie Intimates Inc., 2005 WL 1074774, *9 (N.Y.City Civ. Ct. 2005) (determining the meaning of “baby rip” as used in the textile industry); Avon Products, Inc. v. S.C. Johnson & Son, Inc.,_984 F.Supp. 768, 770 (S.D.N.Y. 1997) (determining meaning of “insect repellant”); _Nix v. Hedden,_149 U.S. 304, 307 (1893) (determining difference between “fruits” and “vegetables”); _Robertson v. Salomon, 130 U.S. 412, 414-15 (1889) (determining the meaning of “seed.”) There is no reason why judges cannot determine the meaning of “science,” and, in particular, to determine that it is characterized by “methodological naturalism.”
It is true, of course, that if a court has the power to judge the meaning of “science,” that it will also have the power to mess up the meaning of science. Anyone who is asked to give an answer has the power to get the answer wrong. But I’m somewhat impatient with the argument that for this reason we should restrict the scope of the judicial role. Somebody, after all, has to make this decision, and while we should always ask the experts first, they, too, have the capacity to get it wrong. What’s great about Judge Jones’ analysis of the definition of science is that he relied on the experts to come up with his answer, rather than allowing the answer to spring from his head or from some preconceived notions. That’s what judges do at their best. But to say that because judges might get the answer wrong, we should deprive them of their ability to answer these questions is unconvincing, in part because the same argument could be made for taking criminal cases out of the hands of judges (or juries, for that matter), or for taking constitutional questions out of their hands, or for taking any other questions away from them. At the Virginia Ratification Convention, Patrick Henry and others argued that Congressmen could not be trusted with certain powers because they might abuse those powers. James Madison replied in words equally applicable to Wexler’s argument,
I have observed, that gentlemen suppose, that the general legislature will do every mischief they possibly can, and that they will omit to do every thing good which they are authorised to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it: Nor do I go on the grounds mentioned by gentlemen on the other side—that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.
Certainly judges can get things wrong. But their job _is_to judge things, and if they are asked to judge whether or not something is science, there is no reason they should not discharge that duty.
Wexler’s article is not available on line yet, but when it is, I will post a link.