Our friend Francis Beckwith has published a new article in the University of St. Thomas Journal of Law And Public Policy, which goes on for some thirty pages to show that he isn’t and never was, and really wasn’t ever and really isn’t and never even came close to being an advocate of Intelligent Design, and so forth. Normally, such self-indulgence would not merit notice, but in the process, he drops a few entertaining knee-slappers.
My own favorite is his criticism of the _Kitzmiller_decision-or, rather, of the “endorsement test” in Establishment Clause jurisprudence. The “endorsement test” is simply the rule that the Constitution bars the government from engaging in activities that send the message that the government endorses some religious belief or other. One obvious question is, message to whom? The answer can’t, of course, be the hypersensitive, or the complete ignoramus, but our old stand-by, the reasonable person.
Now, the reasonable person is a very old concept-indeed, it’s the cornerstone of whole areas of the law. It is, of course, a hypothetical construct, not an actual person. As humorist A.P. Herbert famously put it, the reasonable person
stands in singular contrast to his kinsman the Economic Man, whose every action is prompted by the single spur of selfish advantage and directed to the single end of monetary gain. The Reasonable Man is always thinking of others; prudence is his guide…. All solid virtues are his, save only that peculiar quality by which the affection of other men is won….
He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock…who never mounts a moving omnibus, and does not alight from any car while the train is in motion; who investigates exhaustively the bona fides of every mendicant before distributing alms, and will inform himself of the history and habits of a dog before administering a caress; who believes no gossip, nor repeats it, without firm basis for believing it to be true; who never drives his ball till those in front of him have definitely vacated the putting-green…never from one year’s end to another makes an excessive demand upon his wife, his neighbours, his servants, his ox, or his ass…never swears, gambles, or loses his temper; who uses nothing except in moderation, and even while he flogs his child is meditating only on the golden mean….
I have called him a myth; and, in so far as there are few, if any, of his mind and temperament to be found in the ranks of living men, the title is well chosen. But it is a myth which rests upon solid and even, it may be, upon permanent foundations. The Reasonable Man is fed and kept alive by the most valued and enduring of our juridical institutions–the common jury.
The reasonable man is not_expected–in tort law, constitutional law, or anything else–to be omniscient and perfect. The question is whether a _hypothetical rational person, with the relevant information and background, would understand the government school to be endorsing the truth of a religious proposition. While subject to legitimate criticism, this is at least a _reasonable_way to approach Establishment Clause questions. But Beckwith, whether out of ignorance or a desire to misrepresent the law, would prefer to caricature it. He writes that the reasonable person “would exhibit ideal epistemological excellence,” and would “not be limited by biases.” He oh, so cleverly asserts that the Judge Jones’s use of this common legal device was hypocritical, because “[t]he ROO [‘reasonable objective observer’] would seemingly possess…a ‘God’s Eye point of view,’” and therefore, “in order to expunge the divine, or at least allusions to it, from the public schools, Judge Jones requires the divine’s assistance, or at least the assistance of a hypothetical deity.”
This is worse than a straw man–it is a juvenile attempt to make a joke at the expense of logic and the law. Indeed, it is the only“argument” that Beckwith offers against the use of the reasonable person standard in Establishment Clause jurisprudence. All for the purpose of introducing levity and silliness into a scholarly proceeding, Beckwith indulges himself by mischaracterizing the reasonable man standard, and, without bringing any _substantive_criticism, or even explanation of his objections thereto, simply throwing this straw man overboard.
Meanwhile, he shamelessly misrepresents what Judge Jones’ opinion actually says. For the record, Jones was not seeking to, and did not, “expunge the divine, or at least allusions to it, from the public schools.” He faithfully applied existing precedent that enforces the Constitution’s absolute prohibition against government funding the propagation of religious opinions, or promoting them as true. Allusions to the divine are perfectly constitutional and perfectly routine, in the context of a literature or history class, where tax dollars may be, and are, spent teaching children about religion. But it is neither appropriate nor legal for the government to spend tax dollars finding clever methods to tell children that some religious doctrine or another is the truth.
Yet Beckwith happily continues stacking straw men. Another–and one that is a constant theme with Beckwith, and fully justifies Barbara Forrest’s dismissal of him as simply a non-epistemologist–comes when he repeats his now hoary assertion that science’s “methodological naturalism” is somehow unjustified, or, to be more precise, that methodological naturalism is just one way of knowing, and shouldn’t be “privileged” over “explanations” of phenomena that rely on supernaturalism and magic instead. Beckwith writes that he once believed
that the best way to understand ID is to see it as a counter to the hegemony of philosophical materialism that some thinkers believe is entailed by Darwinian evolution as well as a particular understanding of science. It is a view of science that maintains that the hard sciences are the best or only way of acquiring exhaustive knowledge of the natural world and its genesis and that these sciences, in order to function, require methodological naturalism.
We’ll lay aside the obvious fact that few if any scientists (or others) claim that the “hard sciences” are the “only way” of gaining “exhaustive” knowledge. As I’ve explained at length elsewhere (and Forrest has explained better than I) methodological naturalism is not just one among other possible ways of knowing. It is employed because it has consistently shown that it yields results–predictable hypotheses, working technologies, and all that. Praying to the rain god doesn’t increase crop yields; figuring out how fertilizers work does. But more. Naturalism doesn’t just produce better results, it is also preferable from the outset. Its “hegemony” is not based simply on the overwhelming evidence that it succeeds where other approaches fail. It is also based on the fact that the world into which we are born is full of natural phenomena that impinge on our senses and call for explanations–that is, accounts. Assertions that magic did it are not explanations, they are mere dazzle and mystery. They account for nothing. Moreover, given the obviousness of the material world, it appears prima facie that such explanations should be in terms of the natural world. Maybe there is some other dimension necessary for explaining natural phenomena, and maybe some other method is better suited to explaining them. But if so, the person who makes that assertion who bears the burden of production to justify that claim. The teapot orbiting Pluto doesn’t just stand for observable entities–it also stands for thought processes. Material explanations for phenomena are a natural baseline; they are the starting point of our knowledge of the world. If there is some other dimension, and some other epistemology, it is up to the person who claims such to prove it. That’s just how logic works…unless Beckwith wants to reject logic, too, as simply one among many possible methods that unfairly enjoys “hegemony.” Don’t laugh. Some of his allies…er, former_allies?…er, _something….have done just that.
As long as logic remains with us, it is the person who claims that there is an invisible Man in the sky, tinkering with the physical makeup of animals, who bears the burden of showing that the natural world we automatically see around us falls short for some reason. And Beckwith has demonstrated that if anyone’s going to satisfy that burden of production–it ain’t Frank Beckwith.
(Cross posted at Freespace)