Ramesh:

I agree that we have got ourselves into an absurd pickle over the

establishment clause. Federal judges cost a ton of money to train and

keep. If I were to draw up a list of 100 things I’d like to see the

federal judiciary get busy writing 139-page rulings about, the

contents of local high school science syllabuses would not feature on

that list.

Leaving aside the issue of federalism, though, I think you are a bit

harsh on Judge Jones (a GWB appointee, by the way) when you write of

him “mak[ing] authoritative pronouncements about what ‘is science’.”

If the judge were setting himself up as a metaphysician, that would

indeed be nuts, but I don’t see that in the ruling. Judge Jones is

obliged, by the nature of the case, to consider whether Intelligent

Design falls within the definition of “science” as that word is

commonly understood; and, if it does not, to discover the motives of

the school board in recommending I.D. to students as part of their

science instruction. In other words, he has to make a determination

as to whether a certain party’s use of a word–the word

“science”–agrees with our common definition of that word. This is

the kind of thing judges have to do all the time. In contract law

cases, they do little else. And in doing that, Judge Jones can hardly

avoid spelling out what, according to his best information and

understanding, is the current common designation of the word

“science.”

In a libertarian Neverland (or even, to a fair approximation, just in

the USA of a few decades ago) school boards could teach what they

liked without the federal govt getting involved. That, in my opinion,

and I think yours, was a happier state of affairs. Students who

graduated in districts that taught gibberish would be at a net

disadvantage in the job market as against students from

better-informed school districts. After a while everyone would notice

this, and things would sort themselves out by a process of, well,

natural selection.

Even in that libertarian paradise, though, if any kind of

communally-funded education were carried on–anything above the level

of simple parental instruction–disputes would arise over syllabus

contents, parents would feel aggrieved that their children were not

being taught the school subjects as advertised and commonly

understood, and would seek redress of their grievances. Where should

they seek redress for those grievances, but in the courts? And what

could those courts then do but deliver judgements about whether

“science” (or “Spanish,” or “metalwork”) as taught by school district

X was in reasonable conformity with the commonly understood meanings

of “science” (or “Spanish,” or “metalwork”)? That is not metaphysics,

only jurisprudence–disputes about different parties’ usage of the

same words, and the intentions of the parties in taking up those

usages. To probe into those disputes, and the usages and intentions

that cause them, is not “nuts”; it’s a judge’s job.