When Judge Jones ruled that the Dover (Pennsylvania) Area School Board had violated the First Amendment’s Establishment Clause by mandating a brief statement in biology class about “intelligent design” (ID), he characterized Dover’s action as “breathtaking inanity” (Kitzmiller v Dover, p 138 of the memorandum opinion). Traipsing purports to rebut Jones’s opinion, but virtually every page contains serious factual, legal, or analytical errors; out-of-context quotes; or inconsistent, irrelevant, or trivial arguments — so the rebuttal is very weak.
For example, the introduction accuses Jones of judicial overreach, partly because Jones ruled Dover’s action unconstitutional for two reasons: 1) it had no legitimate secular purpose; and 2) its primary effect would be religious, since ID has no scientific merit. The authors argue that the first reason was sufficient by itself to invalidate Dover’s policy; therefore it was overreaching for Jones to embarrass ID by adding the second reason (p 10–1). That accusation is groundless. When there are several possible justifications for a particular decision, it is common practice for judges to rule on each one. That way, even if appellate courts reject one justification, they might still sustain one of the alternative justifications. It is inexplicable that the authors, two of whom are attorneys, seem to be unaware of such a routine practice.
Chapter 1 says that Jones’s view of ID’s history was partisan, partly because he relied on “polemical ID critics” such as Barbara Forrest (p 20), who testified about ID proponents’ religious statements and creationist connections (Forrest 2005: 133–9 is a typical example). The authors label her testimony “ad hominem attacks” (p 68), which creates the impression that it was improper. Forrest’s testimony, however, merely showed that ID-proponents might be biased. Introducing evidence of bias is entirely legitimate, even according to ID’s own “intellectual godfather” Phillip Johnson (Johnson 1997: 40–1), and occurs in countless thousands of trials. It is unfortunate that the authors used such a prejudicial term for another routine practice.
Chapter 2 attacks Jones’s rejection of ID as science. Seemingly oblivious to the importance of context in interpreting precedents, the authors cite Daubert v Merrell Dow Pharmaceuticals for the proposition that Jones placed too much emphasis on ID’s lack of peer-review (p 54–6); but every lawyer knows (or should know) that rules announced in one context do not necessarily apply in others. Daubert involved a medical malpractice case, not public school education; two private parties, not the government; the interpretation of a procedural rule of evidence, not the constitutionality of a biology curriculum; a jury of adults, not a class of young students; and scientific evidence which was genuinely new, not a theory which, according to the authors, dates back to Socrates, Plato, and Aristotle (p 17). Where exactly is the similarity of context that makes the authors think Daubert applied to Kitzmiller? Complaining that Jones did not follow Daubert makes about as much sense as complaining that Steven Spielberg did not put any sharks in Schindler’s List.
Michael Behe’s essay at the end of the book (Appendix A; p 79–92) also attacks Jones’s rejection of ID as science. Jones ruled that ID’s negative arguments, in which alleged evidence against evolution is taken as evidence for ID, are illogical, because they are based on a contrived dualism or “false dichotomy” (Kitzmiller, p 64, 71). Behe responds by describing a theoretically valid dichotomy, the essential features of which are that it has two causes, natural and intelligent, which theoretically are cumulatively exhaustive (no other causes exist) and mutually exclusive (the two causes never interact) (p 80). The problem is that the essential features of Behe’s theoretical dichotomy are missing from the negative arguments that ID-proponents — including Behe himself — actually use. Behe seems not to understand that valid dichotomies are like sensible diets: they do not work if we do not follow them.
Jones also rejected ID’s arguments comparing biochemical systems to man-made machines, partly because some of the essential features relevant to the comparison were so dissimilar (Kitzmiller, p 79–82). Since Behe relies so heavily on such comparisons, one might expect his rebuttal here to be sharply focused. Instead, he resorts to frivolous word-games. Jones called the comparisons “analogies” or “inductions” at various times. Behe seizes on that, claims (without explanation) that there is a crucial difference between the two words, and accuses Jones of inconsistency (p 89). Some authorities, however, view analogies as a type of induction (Moore and Parker 2001: 392). Under that view, Jones’s alleged “inconsistency” disappears, making Behe’s argument appear not only frivolous, but wrong. Furthermore, although Behe denies that ID’s argument is an analogy (p 89), he repeatedly used that word himself, explicitly or implicitly, both in his testimony (Behe 2005a: 28, 74, 75; 2005b: 93; 2005c: 59) and in his book Darwin’s Black Box. “I liberally use analogies to familiar, everyday objects to get the ideas across” (Behe 1996: xii). Hair-splitting semantics aside, the point here is that playing word-games on important issues does not help Behe’s credibility.
Behe has his own problems with consistency. He originally indicated that irreducibly complex systems met the standard established by Darwin’s phrase: “could not possibly have been formed by numerous, successive, slight modifications” (Behe 1996: 39). Under that standard, merely plausible evolutionary explanations would be effective rebuttals; but whenever evolutionists offer such explanations, Behe arbitrarily changes the standard to “rigorous, detailed explanations” (p 86). Moving the goalposts like that destroys the rigor of Behe’s argument.
Chapter 3 addresses religious issues. Claiming that ID’s religious implications are only indirect religious effects, the authors complain that Jones did not follow the precedent of Agostini v Felton, which held that an otherwise religiously neutral policy is not rendered unconstitutional merely because it has indirect religious effects (p 63–4). But Agostini explicitly emphasized that the challenged action — public school teachers leading remedial classes in sectarian schools — had no impact on curriculum content; while teaching ID obviously does. Given Agostini’s context, its support for ID seems highly dubious, even without considering the issue of whether ID is in fact religiously neutral.
The authors also take Jones’s seemingly innocuous statement that evolution is compatible with belief in God and interpret it as an unconstitutional endorsement of religion (p 68–70). Following that logic, ruling that Copernican theory is compatible with belief in God would also be unconstitutional. I doubt any court would accept such a strained interpretation.
Chapter 4 says Jones’s decision has limited precedential value, partly because district court decisions bind only the parties involved (p 73). Well, the McLean case was also a district level case, and yet it was essentially the death knell of creation science. Judge Overton’s decision there, following a full trial, exposed creation science’s flaws so effectively, that other courts, including the Supreme Court, subsequently disposed of similar cases by way of summary judgment, without wasting time on another full trial. That’s an ominous precedent indeed.
As for the rest of the book, the conclusion is a call to arms to protect academic freedom. Appendix A is Behe’s defense of ID as science. Appendix B contains a very short list of peer-reviewed publications allegedly supporting ID. Appendix C is a supporting brief from 85 scientists. Much of that is irrelevant; some of it contradicts arguments in other sections; none of it is very persuasive.
The fact that Traipsing, written by some of ID’s leading advocates, contains so many serious errors does not inspire confidence in ID’s scientific or constitutional vitality; rather it tends to confirm Judge Jones’s characterization: “breathtaking inanity.”