Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

 
Judge John Roberts has come under fire from environmental groups because of his dissent in the Rancho Viejo v. Norton case, in which he questioned whether the Endangered Species Act, passed pursuant to Congress' power under Article I, section 8 of the Constitution to regulate interstate commerce, applies to "a hapless toad that, for reasons of its own, lives its entire life in California." That is, we're not dealing with an interstate toad here.

Judge Roberts' reasoning is consistent with the Supreme Court's holdings in the Lopez and Morrison cases, in which the Court, for the first time since the 1940s, ruled that the Commerce Clause is not a license for the federal government to regulate any old thing. There has to be some connection between what is regulated and interestate commerce that passes the laugh test.

Typically, this argument -- essentially a procedural one interpreting the mechanics of the Constitution -- is being spun as supposedly showing that Roberts opposes environmental protection. As I wrote in my last post, this is consistent with the Left's confusion of judges with legislators. A constitutional law judge is supposed to apply the law, not make it. (Common law judges are a different story, but we're not dealing with the common law here.)

Saying that Judge Roberts is opposed to environmental protection because he doesn't conclude that the Constitution, as it's written, gives the federal government a particular regulatory power is like saying that if a judge thinks the Constitution's prohibition of cruel and unusual punishments forbids us to flay rapists alive and impale their heads on pikes, he's in favor of rape. posted by Thomas at 10:41 AM

 
An op-ed piece in yesterday's Boston Globe suggested that Catholic judges should be disqualified from hearing abortion-rights cases.

The author, one Christopher Morris, points out that during the last election, certain Catholic bishops suggested that the Eucharist ought to be withheld from John Kerry because of his political support for abortion. As I understand it, this is consistent with the Catholic Church's position that politicians may not support abortion rights, as this purportedly denies justice to the unborn.

Morris goes on to say that the bishops ought to be asked whether the same threat of denial of communion would apply to a federal judge who refused to overrule Roe v. Wade and its line of cases -- and then seems to assume that it would.

The problem with Morris's logic is that he misunderstands the essential difference that there is supposed to be between a legislator and a judge -- which isn't surprising, since an awful lot of political liberals don't seem to see much difference.

Without passing judgment on whether the Catholic Church is right to make a Catholic legislator's political position on abortion a criterion for judging his faithfulness, it seems unlikely that a legislator and a judge would be treated the same way. A legislator has discretion as to what laws he promotes. In constitutional law, the function of a judge, on the other hand, is to say what the law is. A judge is not empowered to hand down any decision he pleases: if the law says one thing, that's what the judge has to say. Given the Catholic Church's emphasis on free will, it's hard to see how the Church would deem a judge's application of a constitution that supposedly contained a right to abortion to be an act of willful wickedness.

Morris can be forgiven for assuming that a judge has the same discretion as a politician to allow or forbid abortion, since more and more of the social-liberal agenda is being advanced by judges acting as politicians, declaring the Constitution to contain mandates to allow this or that despite the manifest absence of any such constitutional content. The whole "privacy" line of cases beginning with the Griswold decision and running through Roe, Casey, and Lawrence are glaring examples of what happens when judges begin with the decision in mind and work backwards to come up with arguments (however facile) to support the preordained conclusion.

But that's not the way the Constitution is supposed to work, and with any luck and the appointment of a few more honest jurists, it will stop working that way. posted by Thomas at 11:48 AM

 
Lileks and I are thinking similarly about intelligent design. Which makes me feel warm and fuzzy; "great minds think alike" and all that. Difference is, his thoughts get read by gazillions of people, and mine just get preserved for posterity.

For all the historians mining my writings to track the progression of the Great Man's thoughts. Which will happen someday. Really. Or maybe not.

Anyway, via the Corner at NRO, I ran into this, from an upstate New York newspaper:

"Diary of a mad liberal trapped in Stupidland (reg. req'd.) By Beth Quinn

Day 1,654. I continue to be dumbfounded by how dumb he really is.

I don't know why I can't just accept it as some of the others here at the outpost have. We've known it for more than four years. Even so, my jaw drops whenever we get a harsh reminder.

Today he told a captive audience of journalists that teachers in what is left of our public school system should be teaching "intelligent design" as an equal alternative to the theory of evolution.

"Intelligent design" is his code word for creationism – the belief that God waved a magic wand one day and – poof! – there we were, fully evolved humans standing in the garden, partially clothed and hankering after apples.

The mere fact that he was made president should be proof enough that we aren't even yet fully evolved! We were headed in the right direction, but logic has now taken a U-turn down the neural pathways of the collective American brain into a cul de sac labeled The Dark Ages.

And now he wants creationism – a belief as anachronistic as the sun revolving around the earth – elevated to the status of scientific theory.

***

Actually, I thought this was all settled back in the 1920s. But here we are. Millions of people of both logic and faith have no problem with the idea that God and Darwin can coexist. They figure God created the raw materials for humans, then humans evolved so the species would survive. That's still a heck of a creation!

***

Yet now the leader of the free world – if not free thought – wants teachers to tell our children that creationism and evolution are equal but different scientific theories."

And much more, in a similar vein.

My response:

"Dear Ms. Quinn,

I have little use for the "intelligent design" argument, and I know you've got a "Bush Is Dumb" template to cram the facts into, but when you say "intelligent design" is just a "code word" for creationism -- that is, the full-bore literal Genesis-style magical poofing of the whole biological world into existence in one week a few thousand years ago -- you're just wrong. If I may posture as one of the citizens of Stupidland, 't'ain't that simple.

One of the problems with "intelligent design" is that it's too broad a term. (Sort of like "liberal" or "religious right," but that's another story.) "Intelligent design" can include old-school creationism -- but it can also encompass the more nuanced version of creation that you mentioned approvingly in your column.

It's not "Dark Ages thinking" to state, correctly, that given what is known the age of the earth, the amount of organic material on it, the rate of mutation of genes, and some other factors, the odds against basic cells appearing spontaneously are very long. Some of the logically possible conclusions to draw from this are (1) we're still missing some key facts, which may show spontaneous evolution of life to be more plausible; (2) we just got really, really, lucky, or (3) at some point, there was some fiddling with the parameters.

Would having a biology teacher include that last sentence in the unit on evolution (a theory which must absolutely be taught, the howls of the genuine snake-handlers notwithstanding; it's the prevailing scientific consensus on the origin of species, and the only theory by which biology makes any sense at all) be so stupidly horrible?

I suspect what gets people of traditional faith upset about evolution is that many of its leading lights, including Richard Dawkins and the late Stephen Jay Gould, used evolution as a kind of vehicle for defending their own atheism -- and in so doing, went beyond the theory's capacity. As you correctly pointed out, faith and Darwinism aren't necessarily incompatible. But it's not just the traditional religionists who insist that they are. When a simple person of traditional faith is confronted with a highly educated scientist who says evolution proves there's no God, he or she may not understanding that evolution proves no such thing -- and faced with a perceived choice between contesting the reality of evolution and abandoning faith altogether, may accept battle along those lines without recognizing the falsity of the choice.

And it's not as if "intelligent design" would be the only instance of stupidity in schools. If I had a dime for every social studies teacher I had who subscribed to the labor theory of economic value (usually without being aware of it, or knowing David Ricardo from Ricky Ricardo) -- well, I could almost buy an ice cream cone." posted by Thomas at 12:46 PM