Positive Liberty

Jacob Bronowski used to say that the greatest discovery of scientists was science itself. The scientific method, with its resolute search for causation, its refusal to cower before tradition and authoritarianism was responsible for the great advancement of humanity over the past centuries. Obviously scientists have not always lived up to these standards, but those who have took man to places he could only have imagined before (and not even imagined very well). Central to this accomplishment is science’s refusal to be satisfied with magical explanations of phenomena. Magic, after all, is not an answer—it’s the feeling of satisfaction without answers. It’s the willingness to tolerate a big blank spot in one’s understanding of the universe.

Creationists, of course, can’t stand the fact that science has prevailed over magical thinking, and that, as a result, we teach science and not magic to our children. They want equal time for unscientific appeals to supernaturalism. Moreover, they want their acceptance of magic to receive the same respect that rigorous scientific discourse receives.

This is the real motivation behind the argument, which we’ve heard before from Francis Beckwith and others, that the government is somehow legally forbidden from giving preferences to scientific explanations over magical “explanations.” The Establishment Clause, according to this argument, requires the government to treat all epistemologies as equal. Otherwise—if the government bases its policies only on science, or advocates science, or subsidizes science, and not magic—why, then, it’s “establishing” the “religion” of “secular humanism.”

A law review article—which I’m ashamed and embarrassed to say was published in the law review of my own alma mater, Chapman University Law School—makes just this argument at length. Stephen W. Trask, Evolution, Science, And Ideology: What The Establishment Clause Requires Neutrality In Science Classes, 10 Chap. L. Rev. 359 (2006) (not available on line).

Adopting fashionable pomobabble, Trask argues that magical understandings of the universe are just as acceptable as scientific understandings, but that preferences for science and reason over “revelation,” emotionalism, whimsical impulse, and other “ways of knowing” is just so much prejudice. “Scientific epistemologies,” he writes, “legitimize the exclusion of those who do not understand truth exclusively through empirical verification.” Science is cruelly shoving magical theories away from the table, through its emphasis on such things as testability, or evidence, or replication of results and silly stuff like that. See, it’s just cultural imperialism to prefer a medical treatment that’s been subjected to rigorous double-blind field trials, instead of a witch doctor shaking his rattles and chanting.

Of course, Trask pulls out the old canards about how science is really based on faith and all. This is false: science has demonstrated in real-world practical results the greater effectiveness of its method. The predictive power, not to mention the analytic power, of science, has proven itself through repeatable, experimental results time and time again. Now, of course, this will only matter to those of us who believe in repeatable, experimental results, a position Trask characterizes as a mere prejudice. But as C.P. Snow put it, if you don’t believe in it, go off and do a modern Walden and live without the comforts science has produced, and I’ll respect you for the strength of your aesthetic revulsion—but don’t come around here saying that repeatable, experimental results are only a desideratum for those who have been “indoctrinated” or colonized by science’s “hegemony.” We demand experimentation, evidence, and proof, not as an irrational prejudice or because we have been brainwashed, but because we know that this is the best way to get real-world results that actually work.

Moreover, a demand for evidence and experiment is not a religion. A religion is a belief in something in the absence of, or in spite of, the evidence. It is faith—that is, belief in something which is not subject to evidence and cannot be proven. (Of course, if God were a physical, corporeal entity, He would be subject to what Trask dismissively refers to as “study through the five senses,” and would therefore be a legitimate research subject for science—whereupon Trask’s childish argument would collapse. But religion wisely does not put itself to such tests; it posits a Being insusceptible of such examination.) Science is certainly an epistemology, and, I would argue, part of this complete, nutritious worldview. But it is not a “religion,” and certainly it is not a “religion” in the Constitutional sense of the term. At the time of the Constitution’s writing, “religion” was not understood as referring to secular, scientific worldviews.

Trask needs for science to be a religion, though, so that he can argue that the government is required to treat science and religion equally, and that excluding magic from government science classrooms is somehow censorship and a violation of the Establishment Clause. We’ve heard this silly argument before, and Colin McRoberts and I answered it in our article Piercing The Veil of Intelligent Design: Why Courts Should Beware Creationism’s Secular Disguise, 15 Kan. J.L. & Pub. Pol’y 15, 39-47 (2005), an article which, like most other important publications in the field, Trask fails to cite.

But we can see why Trask is wrong by simply changing the terms. One could with equal plausibility argue that the government is forbidden from teaching heliocentrism, or from teaching them that astrology is untrue, or that the world is round. After all, there are surely non-scientific beliefs that cling to geocentrism, or astrology, or flat-earth theories. One can argue against all of these things on scientific grounds, but that would be ratifying science’s hegemony, right? If government schools must treat all epistemologies as equal, then any nonsense at all must be allowed in the classroom; indeed, if all epistemologies are equal, then there is no such thing as nonsense.

I will rewrite a paragraph of Trask’s article to make this clear:

The exclusive teaching of [the germ theory of disease] in public schools is an advancement of the religion of secular humanism. There is an inherent connection between [scientific medicine] and the secular humanist worldview. Secular humanists generally reject knowledge that science cannot test [such as that illness is caused by demonic possession]. Since one cannot directly test the supernatural, secular humanists inevitably adopt a naturalistic worldview, which is the belief that there is only a natural realm and no supernatural. Any secular humanist theory about the [origin of disease] cannot rely on the supernatural because that would be inconsistent with naturalism. Therefore, there is an inherent link between secular humanism and [the germ theory] because [the germ theory of disease] is an exclusively materialistic theory about the origin of [disease]…. [T]he exclusion of supernatural theories from science classes marginalizes religious belief. It creates the impression that secular humanism is a practical device that allows people to understand the world today, and religion is only an object of historical study concerning some deranged people of the past.

Well, if the miter fits…. Trask doesn’t want to acknowledge that the reason (some) supernatural “theories” are excluded from science classes is that they have not fit the facts, and they have not yielded useful conclusions. The Greeks believed that Persephone’s visit to the underworld caused the winter cold. Does he really believe this ought to be accorded the same respect as our modern understanding of the causes of the seasons? After all, to call the Persephone myth a “myth” would denigrate it and make it seemed deranged…because, of course, it is, by our standards. It is simply not true. For those of us who believe that “truth” is something more than a cultural prejudice find that a pretty convincing reason to exclude the Persephone myth from science class.

Imagine what the world would be like if government really were required to accord equal respect to supernatural as well as scientific beliefs. As McRoberts and I point out in our article, this “would, if consistently followed, unravel every government undertaking. Suppose that a man has a patently absurd notion that his neighbor is reading his brain through highly sophisticated alien technology. Under current law, he cannot sue for a nuisance, because this is a frivolous and irrational claim. Some courts have taken judicial notice of the irrationality of certain pseudosciences, including phrenology and astrology. It is hard to imagine what would happen to tort law, or the law of evidence, if government were to seriously attempt to treat naturalistic and supernatural theories of the world as equally valid in every respect.” Supra at 45.

(I don’t mean to suggest that Trask would actually be consistent enough to argue in favor of teaching Hinduism, Greek polytheism, and the religion of the Aztecs in the science classrooms of government schools. Doubtless he would argue that only “major” religions deserve to be accorded equal time with science, just as Justice Scalia has argued that the Constitution “permits…disregard of polytheists and…devout atheists,” because “[t]he three most popular religions in the United States, Christianity, Judaism, and Islam–which combined account for 97.7% of all believers–are monotheistic.” McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 893-4 (2005) (Scalia, Thomas, JJ., Rehnquist, C.J., dissenting). This, of course, in the words of James Madison, “is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor.”)

Fortunately for us all, there is nothing in the Constitution that requires the government to treat supernatural and secular notions as equal. The Constitution, in fact, clearly contemplates a government which is devoted to secular concerns and is free to choose policies on the basis of secular reasoning. Not only does it forbid any religious test or oath—a pretty secular concept—but in many places it allows and even requires government to act on secular reasons. A person may not be convicted of treason, for example, except on the testimony of two witnesses to the same overt act: in other words, a court may not rely on a person’s supernatural belief or dream visions or religious dogma, when deciding innocence or guilt under this clause. Congress can grant copyrights so as to “promote the progress of science and the useful arts,” even if their doing so is purely based on secular reasoning.

To come down to earth, government certainly can allocate spending to the fire department based on its scientific understanding of the likelihood of fire during certain times of the year; or may adopt certain prison programs based on wholly secular considerations of prisoners’ needs. In none of these cases is government required to abide by competing supernatural notions such as that fire is brought by Huehueteotl and that a newlywed couple must be immolated to appease Him.

If the government is required to accord equal respect to supernatural as to secular “worldviews,” then people like Jerry Falwell (who founded Trask’s alma mater, Liberty University) who believe that AIDS is God’s punishment for homosexuality, would be accorded equal time to air their views alongside those who explain that it is caused by a virus. To prefer the latter explanation would, after all, “marginalize” those who hold the former view.

There is only one restriction on government’s preference of secularism over supernaturalism: it must not restrict individuals from freely exercising their religion if they wish. Otherwise, the government may subsidize and promote secular ideas—and it should be encouraged to do so, too, since those ideas are, in point of fact, far more likely to be true.

Finally, Trask ignores not only my law review article, but virtually every significant work in the field–he doen’t even cite Francis Beckwith! My objections to this article’s being published are not just a matter of a difference of opinion; this paper is below the standard expected of legitimate legal discourse, and did not deserve to be printed. Trask is a graduate of Liberty University, and of William Mitchell College of Law in Minnesota. He thanks Professor Russell Pannier for his help on the article. The Chapman Law Review’s editor in chief, Tim Kowal, chose the article for publication. All of these people—but most of all the Chapman Law Review—should be deeply ashamed of having their names on this tripe.

(Ed Brayton has more at Dispatches).

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