What is the Real Danger in Appointing a Conservative Supreme Court?
Richard Layton’s Discussion Group Report
“Liberals talk as if the world will end if President Bush gets to name some Supreme justices.” claims Benjamin Wittes in an article in The Atlantic, May 2005. He says that in general liberals fear conservative judges too much in almost all areas, except in one–where the stakes are truly immense and they dramatically understate them.
He says the threat to reproductive rights has been oversold by liberals for decades. With respect to civil rights the foundations of modern civil rights law are exceptionally secure. Conservative judges nibble around the edges sometimes, but almost no one seriously argues about the basic meaning or legitimacy of core civil protections. In criminal law? Hardly. True, the Court has curtailed the Warren era’s famed revolution in criminal procedure, and has rolled back review of state-court convictions. But this war is over; the conservatives have already won. Ironically some conservatives are now leading the court’s aggressive rights-creation effort in criminal sentencing.
Then where have liberals tended to ignore the biggest threat posed by a conservative Court? It’s in the environment. Environmental protection is not central to the fear-mongering of liberals that oppose conservative judges. “But the threat,” he says, “to basic environmental protections from conservative jurisprudence is broad-based and severe.”
Consider the Constitution’s commerce clause, which empowers the national legislature to regulate “commerce…among the several states.” Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power. The potential dangers to the environment of these decisions are hard to overstate. While the environment itself is intrinsically interstate, not all environmental protection measures are regulations of commerce among the several states–or even regulations of commerce at all.
“Can the government, under the Endangered Species Act,” asks one conservative judge, “protect a hapless toad, that…lives all its life in California?” The D.C. Circuit Court of Appeals upheld protection of the hapless toad, as the Fifth Circuit did of “six species of subterranean invertebrates found only within two counties of Texas.”
A dissenting judge wrote, “For the sake of a species of 1/8 inch long cave bugs, which lack any known value in commerce, much less interstate commerce, the panel has crafted a constitutionally limitless theory of federal protection.”
In recent years the Rehnquist Court has breathed life back into the notion of state’s immunity from suits for money–an immunity rooted in the Eleventh Amendment. In 2001, the Fourth Circuit used an Eleventh Amendment argument to block an environmental suit that sought to force West Virginia officials to stop letting mining companies blow the tops off mountains to get at the coal inside. “A reinvigorated Eleventh Amendment,” says Wittes, “could prove a disaster for federal environmental laws, which because of their unique structure could be unusually vulnerable to this doctrine.”
If the courts limit federal environmental protection, can’t the states step in and fill the gap? First, many environmental problems are inherently interstate and cannot be reasonably managed by state government. Winds carry polluted air across state borders, and migrating species don’t check local species-protection laws before entering a state. In addition, judicial conservatives have greatly energized the takings clause of the Fifth Amendment, which prohibits government seizure of private property without “just compensation.” But the courts in recent years have made aggressive use of the concept of “regulatory taking”–that is, government action that so diminishes property values as to constitute a taking even without a formal expropriation. The expanded concept of takings is already having dire consequences for environmental protection in the lower courts. Courts have found takings when the Army corps of Engineers denied a company a permit to mine limestone in wetlands in Florida and when federal agencies imposed water-use restrictions to protect restrictions to protect endangered smelt and salmon in California. The Rehnquist court has also tightened doctrinal requirements that limit citizen access to the courts. This greatly reduces the legal accountability of polluters.
What is the unifying theme of opposition to environmental protection? A libertarian suspicion of regulatory power, charges Wittes. Environmental laws represent some of the most aggressive uses of federal power, and by their nature they limit the use of private property, sometimes intrusively. They genuinely push up against the limitations on governmental power outlined in the constitution. Tighten these limitations, as conservatives tend to do, and the dominoes of environmental law quickly begin tumbling.
In recent years some conservatives have become sensitive to the problem. In fact, several of the most important recent pro-environment opinions–including the Fourth Circuit’s decision affirming protection for the red wolf–were issued by conservative luminaries.
But a portion of the judicial right harbors a strain of simple hostility to environmental values. According to Wittes, what hangs in the balance in the future composition of the Supreme Court, more than the fate of abortion rights, civil rights, or criminal justice, is the fate not only of the Flower-Loving Fly, of the red wolf, the hapless toad, the West Virginia mountains–but of the air we breathe and the water we drink.
Are We Back In Kansas, Toto?
State Senator Buttars, Republican-West Jordan, had a letter to the editor published in USA Today on August 8, 2005. In part it reads:
The campaign to eliminate God from the public forum has been going on for decades, having accelerated greatly since the Supreme Court’s ill-advised decision in 1963 to eliminate prayer from public schools. And I believe those fighting against the teaching of intelligent design in schools have an ulterior motive to eliminate references to God from the entire public forum…
Teaching evolution is really about the determined drive by activists to eliminate any reference to an intelligent power in the universe. That said, could it be that the reason they can’t find the missing link is that human evolution didn’t happen at all?
Predictably much of the (mis)information in Buttars’ letter is incorrect and misleading. However, the senator has also threatened our public schools to either knuckle under and give credence to the newly resurrected concept of Creationism called Intelligent Design or face legislation.
Both major Salt Lake Papers have published numerous letters to the editor from both sides of the issue. This issue of the Utah Humanist contains opinions written by chapter leaders, present and past, on the subject.
I don’t know if I am the most sage person to be addressing this question, but as one who appreciates and enjoys science, I have to try. I feel that I must express my opinion, because of what is being done and said by those who fear or hate science because it challenges many of the assertions of religious dogma.
There are many issues involved when dealing with this topic, but for this short essay a few is all there is space for. If we take up defending evolution, there are a few items that I feel need to be addressed.
One of the problems we face is that the opposition is very good at twisting word meanings around so that they become disparaging (i.e., “liberal,” “it’s just a theory,” etc.). We need to get better at this word game. This is a tactical problem when trying to debate these people, which results in our being put on the defensive right away. There is a good essay in Isaac Asimov’s book, The Roving Mind, called “Losing the Debate.” In this essay, he warns us not to debate at all if we are going to let the creationists force us to defend evolution, a long proven process.
I also believe that one of the best ways to defend science is to teach and advocate it enthusiastically, and not just in schools. Education is one of the ways we, as individuals and as a humanist organization, can make a difference. Letters to the editor, an op-ed., or a well worded statement of principle that supports science and specifically evolution, would allow us to explain factually what evolution is and what it is not. It will also allow us to clear up myths and misconceptions, and to bring some needed rationality into this debate (of course anything with the chapter name on it will need careful scrutiny and approval by the Board and perhaps even the general membership).
I plan to encourage the idea that we should see evolution as a discovery, a result of Darwin’s observations and the synthesis of his explanation of what is happening in nature. Evolution has always been here. In a way, evolution is another word for change. The whole cosmos is changing as we move through time, and everything that is a part of the cosmos changes in varying degrees. Some changes take place really fast, like in nuclear fusion where processes take place in a very small fraction of a second. Other things take place very slowly, like the formation of a solar system. Biologic change lies somewhere in the middle of those extremes of time. Whether the creationists like it or not, things change. And they should, for it is the relentless changes throughout time that have given us such a great diversity in life and indeed the cosmos itself. If many choose not to see the beauty of the universe as it is, obvious and laid out for us to observe, it is unfortunate.
There certainly is an abundance of ideas to discuss and consider when promoting and defending science and I plan to address some of these items in future issues. I encourage other Humanists of Utah members to do the same.
Place For Teaching Intelligent Design
Why not let them teach Intelligent Design in a Comparative Religion class without any proselytizing. It may backfire on these nice albeit misguided zealots. Students may not want to go to church when they realize that the Divine theory is as baseless as the stork story.
The church would be better off trying to forbid teaching the ID so as not to start their flock thinking that there might be a theory out there called evolution.
The Law of Evolution
Current challenges to teaching Evolution in our public schools misses one very important point. It really does not matter whether you “believe” in Evolution or not. Evolution is a “tool” that is used by scientists to understand life. It is not a belief system. It has certainly been an effective instrument! Many of the medical advances since Darwin are a direct result of applying Evolution to the study of life and life processes. The other biological sciences also have their foundation firmly seated in Evolution.
Much of the rancor could be removed, over time, from this debate if the general public would start referring to the “Law of Evolution.” The evidence is overwhelming and there is precedent; Physicists consider Gravity to be a theory. The evidence supporting Evolution, like the proof sustaining Gravity, is pervasive and overwhelming. Let scientists call these processes theories. These observable phenomena should be considered Laws of Nature by the general public.
Finally, we should understand that as soon as a new explanation (i.e., a better tool) surfaces that more thoroughly explains empirical observations, our current laws/theories will be dropped like hot potatoes and traded in on the new models. Science is in the business of explaining, not believing.
Do Not Include Divine Design in Public School Curriculum
Board Member Flo Wineriter had the following letter to the editor published in the Deseret Morning News. He wrote in response to an op-ed piece published on August 9, 2005.
Thanks to Marjorie Cortez for a thoughtful, rational editorial opposing the imposing of religious opinion on students in the public classroom. I am an active Humanist with a capital H. I served on the American Humanist Association board of directors for eight years and as president of the local chapter, the Humanists of Utah, for ten years. I also serve on the advisory committee of the Utah Three-R’s program. I am in complete agreement with Ms Cortez concerning the teaching about the role religions have played in world history, U.S. history and Utah history, both the positive and the negative.
Those of us who share this view have the responsibility, even the obligation, to help people understand the vital difference between education and indoctrination. Recognizing the difficulty adults have with this discernment we can appreciate the difficulty children will have. For that reason, among others, it is imperative that Divine Design not be included in the curriculum of Utah Public schools.
I am indeed confronted with individuals unexposed to traditional religion. I confront them every day. They are my children.
How do I teach my children humanism? Well, I don’t do it by running down religions they have never heard about. I don’t do it by exposing them to the varieties of religious experience. Instead, I expose them to the varieties of worldly experience. My children, ages four and five, already enjoy travel, pictures, movies, music, people, animals, flowers, daydreams, stories, words, numbers, shapes, colors, and the joy of learning. I want them to live the good life envisioned by humanism, to experience the promise first hand. That’s why, when I asked my eldest daughter, Livia, what the praying hands in front of the Oral Roberts medical complex were doing, she exclaimed, “They’re clapping!”
Are my children humanists yet? Time will tell, but other humanist parents I know who have used a similar approach have been pleased with the results. And the implication is clear. The promise of humanism is a good life here and now.
Source: The Promise of Humanism, an essay by Fred Edwords, Editor, The Humanist
If humanism needs a Patron Saint, surely Roger Williams (1603-1683) would be appropriate. The founder of Rhode Island strongly promoted complete separation of church and state, freedom of conscience, and urged that polytheists, deists, pagans, and atheists be excused from swearing on the Bible or to God. He preached the secular equality of all humanity, governance by consent, and fairness in trading with Native Americans.
Two sojourns to London finally resulted in a charter being granted July 8, 1663 by parliament and King Charles 11 recognizing Rhode Island and granting it “full liberty in religious concernment.” Religious and secular freedom owes a debt of gratitude to Roger Williams.
Roger Williams, written by Edwin S. Gaustad, and published by Oxford University press 2005, is only 132 pages but it is packed with inspiration for humanists.