Evolution Only?

It is a popular misconception that the clause “separation of church and state” exists in the Constitution. That exact phrase was coined by Jefferson in a letter to a church (1), but the principle is one that has been upheld by the Supreme Court because of its constitutional basis in the First Amendment. The First Amendment has two religious clauses: the Establishment Clause and the Free Exercise clause. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (2). The former merely states that the government shall not endorse an official religion, while the latter obviously allows one to practice his or her own religion.

While the Supreme Court has dealt mainly with cases concerning prayer and the displaying of religious icons in public places, there have been several cases in federal and lower courts dealing with the question of whether religious models of the origin of life should be taught in schools. Historically, the question has been whether to allow evolution to be taught in schools, but evolution has typically prevailed after the Supreme Court ruled in Epperson v. Arkansas (3) that any bans on teaching evolution in school violated the Establishment Clause (of course, the controversy of evolution v. creationism originated with the famous Scopes Trial of 1925). Recently there has been a controversy surrounding the federal case of Kitzmiller v. Dover Area School District regarding the validity of teaching intelligent design in schools as an alternative to creationism (4).

While I am not going to debate to what extent intelligent design resembles or does not resemble creationism, I am in agreement with the U.S. District Court for the Middle District of Pennsylvania, which ruled that teaching intelligent design violates the Establishment Clause of the First Amendment (4). Intelligent design, after all, does assume the existence of a supernatural "designer" and has no basis in scientific fact. Evolution may be called a theory, but there is a consensus in the scientific community about its validity (theory is a misleading term at times; technically gravity is a theory too, but no one will challenge its validity).

It is true that by teaching intelligent design, the state, through the school, would seem to be endorsing religion. But at the same time, doesn't the free speech clause of the First Amendment hold priority over the other clauses? Shouldn't teachers have the academic freedom to teach alternative theories, especially since the subject matter concerned is also endorsed by the parents of students? These parents are the ones who are mostly paying for their kids' education, and they did not send their kids off to school to learn material that they do not approve of. In the Kitzmiller v. Dover case, of course, it was the opposite way around; teachers and parents objected to the school board's endorsement of intelligent design, but I believe that in most cases the former assumptions hold true.

After all, proponents argue that there is no harm in letting students know about an alternative view. Students should be able to make up their own mind concerning whether intelligent design, creationism, or evolution is the best theory. All viewpoints should be heard so that truth can prevail in the marketplace of ideas, and even false theories shouldn't be suppressed just because they are false.

I personally believe that it is in the students' best interests to learn a scientific theory instead of a religious one in a science class. In a religious studies class, students should be free to learn all about the Bible, but there is no and can be no scientific evidence for intelligent design or creationism because they involve proving the existence of a Creator himself, a formidable task many philosophers have attempted (and failed, in my opinion, for it is a matter of faith). Furthermore, it is not the interests of the parents or teachers that the Establishment Clause is protecting in this case. It is protecting the minority from the tyranny of the religious majority. This case illustrates the basic principles of the separation of church and state; that is, protecting nonbelievers and those of different faiths from the proselytizing of one religious sect's views.

And while the marketplace of ideas may lead students to truth eventually if they are given choices of what theories to accept, imagine the controversy that would occur in other subjects if theories not held by the consensus of academics were taught. If a Communist or Fascist interpretation of history were taught in an American history class, I am sure that not many would be keen on accepting this alternative "theory" of history.

Sources:
(1) http://www.usconstitution.net/jeffwall.html
(2) http://www.law.cornell.edu/constitution/constitution.billofrights.html
(3) http://en.wikipedia.org/wiki/Creation-evolution_controversy#Creation-evolution_controversy_in_the_age_of_Darwin
(4) http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf

Genocide

Undoubtedly the Holocaust was a nadir for humanity. The story of the systematic killing of about 6 million Jews is taught throughout most of the world as the worst atrocity that could ever happen. However, in spite of the overwhelming academic and public consensus on the facts and existence of the Holocaust, some believe that this event did not occur. They claim that the Holocaust was a hoax, “a deliberate Jewish conspiracy to advance the interest of Jews at the expense of other people” (1). These Holocaust deniers have spurred outrage among not only survivors but many others sympathetic and cognizant of the horrors of the Holocaust.

Holocaust denial is a crime in thirteen countries: Austria, Belgium, the Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (1). Despite the existence of these anti-hate speech laws, there are fears that Holocaust denial is spreading due to lack of awareness among youth. Since more than 60 years have passed since the Holocaust and there are less and less survivors alive to tell their stories every year, scholars are afraid that people will forget. “In 50 years from now, not only will there be no survivors alive, there won’t be anybody alive who even knew a survivor…” says Mr. Greenberg, president of a historical foundation (2). The promotion of Holocaust denying materials on the Internet is also a new cause for concern because many youth are unable to distinguish legitimate historical sites from false ones (2).

The existence of Holocaust deniers poses a distinct First Amendment problem, if the First Amendment were to be applied to European countries. For instance, a Frenchman named Vincent Reynouard was recently convicted and sentenced to one year in prison (with substantial fines) for publishing and distributing a pamphlet called “Holocaust? The Hidden Facts” disagreeing with the fact that six million Jews were killed (3). In the United States this conviction would be considered a case of subsequent punishment and infringement upon the freedom of speech. This hate-speech problem is more nuanced, however, than merely prohibiting the expression of one’s opinions concerning a controversial issue. Denying the Holocaust is also a distinct denial of the truth.

In fact, the French are accused of being hypocritical because they do not suppress any other expressions of falsity. “It is also not a crime for any politician in any European country to go to elections and lie to the nation about anything, including election promises…No citizen can bring a charge against anyone…for lying is not considered a crime under the law” (3). Prosecuting every instance when someone lied would seem to be a logistical impossibility, not to mention inherent problems in proving the truthfulness of an expression. In addition, shouldn’t preventing politicians from lying be a concern for the public interest of France also?

Nevertheless, the problem with Holocaust-deniers is that there is no doubt that what they are espousing is an untruth, so there is no need to prove the falsity of their assertions. Moreover, Europeans have been affected far more by the Holocaust than Americans have. How would we feel if someone denied the existence of Vietnam? Or the Civil War? There is assumedly a greater public interest in protecting the sensibilities of Holocaust survivors and their supporters than in assuming the risks of allowing Holocaust deniers to speak, which could include condoning genocide and allowing public attitudes towards it to become so lax that another genocide could possibly occur.

While I nevertheless believe that freedom of speech should be triumphant in this case, since truth is not a prerequisite for speech and the prerogatives of the speaker must be protected from governmental interference, there is the issue of solving this problem of anti-Semitism. Legislating it away is only a superficial solution. Education is the key towards instilling more tolerance in the people of both Europe and America.

Couldn’t one argue, however, that censoring of Holocaust denials constitutes education by the government? After all, people do learn the necessary lesson from this suppression and the existence of the Holocaust is upheld by the government reaffirming it through court rulings. This argument seems spurious to me, however, and various analogies could be applied to prove its invalidity, i.e. government suppression of Communists during the McCarthy era was not justified just because it can be said that the government was attempting to “educate” people about the evils of Communism.

There is an issue, however, in allowing Holocaust deniers to educate our youth. A ramification of this conflict occurred in the British courts, when historian David Irving, a Holocaust denier, filed a libel suit against Deborah Lipstadt for calling him a Holocaust denier (4). The court affirmed that Lipstadt’s allegations were correct and the judge caustically ruled that Irving had “deliberately misrepresented and manipulated historical evidence” (4). Thus the question arises of whether to allow Holocaust deniers to teach in schools because their beliefs may bias an accurate representation of history.

His defenders say that one should “judge what they [historians] do not by political intent, but by whether they produce work based on evidence” (5). His detractors counter that “[his] values are responsible for ultimately debilitating flaws in his work” (5). If a public school or university fired him, that would essentially constitute an infringement on his civil liberties: specifically on his freedom of association and right to hold his own expressions. If private institutions refuse to associate with him, that is their right as well. But the issue in the former instance is one of governmental suppression and censorship reminiscent of the blacklisting of Communist teachers during the McCarthy era. Should one be punished for his beliefs if they are driven by anti-Semitism and condemned throughout most of the world?

I would object to governmental punishment because the government should uphold the rights of all citizens under the law to prevent undue oppression and expansion of governmental power, but personally private blacklisting seems justified in this case.

(1) http://en.wikipedia.org/wiki/Holocaust_denial#Laws_against_Holocaust_denial

(2) http://news.bbc.co.uk/1/hi/world/europe/4436275.stm

(3) http://mathaba.net/news/?x=571009

(4) http://en.wikipedia.org/wiki/David_Irving#Libel_suit

(5) http://query.nytimes.com/gst/fullpage.html?res=9802E3D6153AF935A15755C0A96F958260

Freedom of Association

What exactly is freedom of association? It is not one of the five freedoms listed in the First Amendment—freedom of speech, freedom of religion, freedom of the press, freedom of assembly, and freedom of petition (1). However, some rights in the Constitution do not have to be enumerated clearly and distinctly in order for the Supreme Court to interpret that they are there.

An example is the right to privacy, which formed the controversial basis of Roe v. Wade (2). The Supreme Court ruled that women had the right to choose an abortion based on the right to privacy inherent in the Due Process Clause of the Fourteenth Amendment (2). This right to privacy, or a “guarantee of certain areas or zones of privacy,” is implied in the Constitution in the First, Fourth, Fifth, Ninth, and Fourteenth amendments, as well as in the “penumbras” of the Bill of Rights (2). Although opponents of the right to privacy have alleged that it is a construct of judicial activism and implied nowhere in the Constitution, the basic premise behind it—that an individual should be protected from government intrusion into private affairs—is one that undoubtedly most Americans would agree with.

Similarly, freedom of association is also a protection from governmental intrusion into private affairs—it encompasses an individual’s right to form relationships and interact with whatever groups and individuals one chooses. The Supreme Court has recognized two forms of freedom of association: intimate association as well as expressive association (3). The former stems from the right to privacy and establishes that an individual can form intimate relationships with whomever he wishes, and the latter stems from the First Amendment’s rights to assembly and free speech. We shall only be concerned with the latter right here.

The freedom of expressive association, in other words, encompasses an individual’s right to express his views by joining a group with whom he identifies. As a member of this group, an individual has the freedom to assemble with this group and speak out on behalf of it. An individual also has the right to divulge information about the group or to keep it secret as he wishes. Furthermore, in order for a group to qualify for protection under freedom of expressive association, it must be “defined by common political, cultural or economic activism” (4). Thus government cannot oppress an individual merely for associating with one group or another because the activities of that group fall under First Amendment protections.

Freedom of association protects—or should protect—unpopular minorities from oppression by the majority. For instance, in NAACP v. Alabama, the Supreme Court ruled that the state could not force the NAACP to reveal the names of its members (4). This is because the Court recognized that by naming names, the NAACP would compromise the confidentiality of its members and their ability to express their message would be undermined. In a period when civil rights issues were very controversial, revealing the identities of NAACP members in a location in which they would probably face censure and discrimination would limit their freedom of speech. Even though private organizations or individual citizens would most likely carry out this discrimination, the state still has a role in attempting to force the NAACP to name names. Thus the Supreme Court is protecting the right of members of the NAACP to freely associate with that group and their freedom to not speak out on sensitive group information.

Now freedom of association can become controversial because it implies the freedom to not associate with a group or individual of one’s choosing as well (5). Therefore the state cannot force a private organization to associate with individuals whom it excludes from its membership. This was established by Boy Scouts of America v. Dale, in which the Supreme Court ruled that the Boy Scouts had the freedom to fire a gay scoutmaster based on its expressive belief that homosexuality is unacceptable (6). Thus the Supreme Court ruled that the New Jersey state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation did not apply to the Boy Scouts as the Boy Scouts are considered an expressive private organization. In this case the Supreme Court prevented the New Jersey government from interfering with an organization’s freedom of association. This case does not indicate that anti-discrimination laws are invalidated completely. For instance, it is illegal to discriminate in hiring because of the Civil Rights Act (7). This is because there is a greater interest in protecting the Fourteenth Amendment rights of groups that have been historically discriminated against in the case of employment. In general, however, freedom of association indicates that private groups are free to discriminate if they are expressive organizations.

A court which espouses freedom of association must be a principled one. It will come under attack from both supporters of diversity and opponents of diversity. But its stand on freedom of association—that it should be equally applied to all—is the most tolerant one. Freedom of association will function best to protect a democratic society and system of government only when it is applied judiciously, however. The Supreme Court can easily abuse its application of the freedom of association to discriminate or to mandate relationships. We must trust the judicial branch of our government to function independently and justly so that our own freedom of association is free from governmental interference.

Disclaimer for the last paragraph: I recognize that the Supreme Court and the judicial branch are not the same entity.However, the Supreme Court is the most prominent representation of the judicial branch, and my use of it can be interpreted as synecdoche.

Sources:

(1) http://www.law.cornell.edu/constitution/constitution.billofrights.html

(2) http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZS.html

(3) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/association.htm

(4) http://www.firstamendmentcenter.org/assembly/topic.aspx?topic=freedom_association

(5) http://www.fee.org/publications/the-freeman/article.asp?aid=4229

(6)

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=99-699

(7) http://en.wikipedia.org/wiki/Freedom_of_association

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A (Biased) Horse Race Trailing the 2008 Presidential Campaign?

Ever since taking AP U.S. Government in high school, I’ve been curious to learn more about the 2008 presidential election, which will be held on November 4, 2008 (1). But where to turn for accurate and unbiased information covering the presidential campaigns out there? The only piece of information I remember learning in class about media coverage of presidential campaigns is that they always focused too much on the horse race of campaigning instead of relevant issues. Is there a way of changing this without infringing upon the media’s First Amendment freedoms of speech and press?

“Horse race coverage” focuses on the competitive aspects of the campaign—who’s ahead in the polls, which dirty tactics each campaign is using, and the amount of fundraising conducted. This type of reporting has been criticized for unfairly giving too much attention to candidates in the lead and for ignoring important topics such as a candidate’s background or stance on salient issues (2). The persistence of horse race coverage in the media today is well-documented in a recent study surveying 1, 742 news stories by the Project for Excellence in Journalism and the Joan Shorenstein Center on the Press, Politics and Public Policy at the Kennedy School at Harvard (3). This study reveals that 63% of all of the stories focused on the “political and tactical aspects of the campaign,” while only 15% focused on candidates’ policy proposals and only 17% focused on their personal backgrounds (4). This is sharply divergent from what the public wants the media to cover, according to a poll by The Pew Research Center for the People and the Press. This poll demonstrates that a majority of Americans want to learn more about candidates’ positions on the issues (77%), their personal backgrounds and experiences (55%), and information about lesser-known candidates (55%) (4).

This disparity between the realities of horse race coverage and the desires of the American public necessarily lead to a sober consideration of what can be done to change this situation, if anything. A libertarian interpretation of the circumstances results in the conclusion that the media cannot be fettered by the government in its editorial discretion. The government would necessarily be the judge regulating media coverage and determining whether or not something constitutes “horse race coverage,” a vague and ambiguous term. Thus the government could easily abuse its power and censor the media unnecessarily (prior restraint warning bells, anyone?). Logistically, also, the task seems impossible—there are so many subjective interpretations of whether or not an article is “tactical.” Furthermore, there is no selective audience here. Even if the mainstream media failed to provide crucial information, the public could always divert its attention to other forums such as the Internet.

But neoliberals would take a different stance. The role of the media as the Fourth Estate, after all, is to act as check on the government. This would seem to be in line with the libertarian interpretation of the situation. However, the media is also important in promoting the welfare of a democracy by necessarily serving a crucial role during election time. As former Senator Paul Wellstone says, “We depend on the media for the free flow of information that enables citizens to participate in the democratic process” (5). What exactly should the nature of this “free flow of information” be, however? The majority of the public seems to believe that the media is not doing its duty in presenting all of the relevant information needed to select the best candidate for President. The public knows almost nothing about the least-covered candidates who could potentially be powerful contenders. Without a transparent presentation of all of the facts, the public is not knowledgeable enough to make an informed decision about who the President should be (although this concern may have prompted the Founders to form the Electoral College, but there are still primaries to consider). In other words, there is the public’s right to know to consider also.

Although First Amendment considerations incline me towards the libertarians, I can’t help sympathizing with the neoliberals on an issue that is crucial to the preservation of our democracy. Citizens need to be informed before voting in order to make the best decision. Although governmental intervention infringes upon the media’s First Amendment rights, there are other methods the public can pursue to ensure more balanced coverage of issues important to them. These include lobbying the media itself or even starting citizen journalist blogs covering the campaign.

Addendum: I have already addressed this in a previous blog, so I didn’t bring up the biases inherent in political media coverage that the study also revealed, such as favoritism towards Barack Obama and dislike towards Senator John McCain. The issues surrounding the McCain-Feingold Act of 2002 apply to campaign coverage as well, but those are also discussed here.

Sources:

(1) http://en.wikipedia.org/wiki/United_States_presidential_election,_2008#Timeline

(2) http://en.wikipedia.org/wiki/Political_handicapping

(3) http://www.nytimes.com/2007/10/29/business/media/29coverage.html?_r=3&ref=media&oref=slogin&oref=slogin&oref=slogin

(4) http://www.journalism.org/node/8187

(5) http://www.freepress.net/news/27415

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