I. The Trial of the
Century

The 1925 State
v. Scopes
[1] evolution-creation trial in
Dayton, Tennessee, has been called “the world’s most famous court trial,” [2]
and it was a trial that certainly did arrest the world’s attention. As William
Jennings Bryan, the special prosecutor in the trial, noted, “We are told that
more words have been sent across the ocean by cable to Europe and Australia
about this trial than has been sent by cable in regard to anything else
happening in the United States.” [3]
Indeed, few other trials have produced such crowded courtrooms and worldwide
media attention or have resulted in as many full-length movies and reenactments
of its proceedings as has this trial.

Bryan believed that the trial had “stirred the world”
because “this cause . . . goes deep. It is because it extends wide, and
because it reaches into the future beyond the power of man to see. Here has been
fought out a little case of little consequence as a case, but the world is
interested because it raises an issue.” [4]
Award-winning historian Henry Steele Commager described how that “issue”
became a sensationalized spectacle:

The religious question—the wisdom of the State
law forbidding the teaching of evolution in public schools—was, to be sure,
confused by the legal one—the right of the State to enact such a law. Both
public opinion and counsel largely ignored the legal and concentrated on the
religious issue. It was appropriate that [William Jennings] Bryan should have
appeared as counsel for the prosecution, for he was not only the most
distinguished and eloquent of American fundamentalists but largely responsible
for the enactment of anti-evolution laws in several southern States. It was less
appropriate, perhaps, that Clarence Darrow should have been chief counsel for
the defense, for in the eyes of most Americans he represented not modernist
religion but irreligion, and his advocacy of evolution and assault upon
fundamentalism enabled the prosecution to identify science with atheism. . . .
Constitutionally, Bryan’s case was unimpeachable, for in a democracy, as
Justice Holmes never tired of pointing out, the people have a right to make
fools of themselves. Bryan, however, did not adopt this logical but embarrassing
position. Neither he nor Darrow argued the constitutional issue, and their
evasion was encouraged by the Court, the press, and public opinion. It was not
young John T. Scopes, after all, who was on trial, but fundamentalism itself. To
the delight of the newspapermen and the chagrin of the devout, the trial
degenerated into a circus and a brawl. [5]

The trial had revolved around a 1925 Tennessee law which
stated that “it shall be unlawful for any teacher in any of the Universities,
normals and all other public schools of the State which are supported in whole
or in part by the public school funds of the State, to teach any theory that
denies the story of the divine creation of man as taught in the Bible and to
teach instead that man has descended from a lower order of animals.” [6]

When substitute teacher John Scopes taught a biology class that he “classified
man along with cats and dogs, cows, horses, monkeys, lions, horses and all
that,” [7]
he was charged with violating that law.

At the trial level, district judge John Raulston allowed
only the introduction of evidence and arguments which pertained to whether the
law as written had been violated by John Scopes. The jury believed that it had
been, and found Scopes guilty. The jury, however, requested the judge to levy
the fine, [8]
so the judge imposed on Scopes the minimum fine specified by the law for a
conviction. On appeal to the State Supreme Court, the jury verdict was upheld
but the fine was overturned, for the law had stipulated that the jury, not the
judge, must determine the amount of the fine. [9]

The district court, in examining only whether Scopes had
violated the law, had refused to consider either of two objections raised by
Clarence Darrow and the Scopes defense team: (1) that the law prohibited
teaching the scientific theory of evolution and therefore violated the State’s
requirement “to cherish . . . science”; [10]
and (2) that the law violated the constitutional prohibition against an
establishment of religion.

On appeal, the State Supreme Court was willing to examine
those two objections. On the first issue, the court upheld the law’s
constitutionality, explaining:

Evolution, like prohibition, is a broad term. . . .
[and i]t is only to the theory of the evolution of man from a lower type that
the act before us was intended to apply, and much of the discussion we have
heard is beside this case. [11]

Although the general characterization of the Scopes case
was that of a legal showdown between the opposing beliefs of creation and
evolution, as the court noted, it was not. The issue of the case actually was
whether one specific variety of evolution teaching—and not all evolution
teaching—might be banned. This was further confirmed in Justice Chambliss’
concurring opinion in which he pointed out that under the law, several theories
of evolution, and even evolution in general, could still be taught:

Conceding that “the theory of evolution is
altogether essential to the teaching of biology and its kindred sciences,” it
will not be contended by Dr. [E. N.] Reinke [a professor of biology at
Vanderbilt University relied upon by the defense team], or by learned counsel
quoting from him, that the theory of evolution essentially involves the denial
of the divine creation of man. . . . The theories of Drummond, Winchell, Fiske,
Hibbens, Millikan, Kenn, Merriam, Angell, Cannon, Barnes, and a multitude of
others, whose names are invoked in argument and brief, do not deny the story of
the divine creation of man as taught in the Bible, evolutionists though they be.
. . . Our laws approve no teaching of the Bible at all in the public schools,
but require only that no theory shall be taught which denies that God is the
Creator of man—that his origin is not thus to be traced. [12]

For these reasons, the Court rejected Darrow’s
challenge to the law, and then added:

If the Legislature thinks that . . . the cause of
education and the study of science generally will be promoted by forbidding the
teaching of evolution in the schools of the state, we can conceive of no ground
to justify the court’s interference. The courts cannot sit in judgment on such
acts of the Legislature or its agents and determine whether or not the omission
or addition of a particular course of study tends “to cherish science.” [13]

On the second objection raised against the law, the court
rejected the argument that the law violated any constitutional prohibition
against the establishment of religion, explaining:

We are not able to see how the prohibition of
teaching the theory that man has descended from a lower order of animals gives
preference to any religious establishment or mode of worship. So far as we know,
there is no religious establishment or organized body that has in its creed or
confession of faith any article denying or affirming such a theory. So far as we
know, the denial or affirmation of such a theory does not enter into any
recognized mode of worship. Since this cause has been pending in this court, we
have been favored, in addition to briefs of counsel and various amici curiae,
with a multitude of resolutions, addresses, and communications from scientific
bodies, religious factions, and individuals giving us the benefit of their views
upon the theory of evolution. Examination of these contributions indicates that
Protestants, Catholics, and Jews are divided among themselves in their beliefs,
and that there is no unanimity among the members of any religious establishment
as to this subject. Belief or unbelief in the theory of evolution is no more a
characteristic of any religious establishment or mode of worship than is belief
or unbelief in the wisdom of the prohibition laws. It would appear that members
of the same churches quite generally disagree as to these things. Furthermore,
Chapter 277 of the Acts of 1925 requires the teaching of nothing. It only
forbids the teaching of the evolution of man from a lower order of animals. [14]

Justice Chambliss, in his concurrence, further explained
why nothing religious had been established:

Considering the caption and body of this act as a
whole, it is seen to be clearly negative only, not affirmative. It requires
nothing to be taught. It prohibits merely. And it prohibits, not the teaching of
any theory of evolution, but that theory (of evolution) only that denies, takes
issue with, positively disaffirms, the creation of man by God (as the Bible
teaches), and that, instead of being so created, he is a product of, springs
from, a lower order of animals. No authority is recognized or conferred by the
laws of this state for the teaching in the public schools, on the one hand, of
the Bible, or any of its doctrines or dogmas, and this act prohibits the
teaching on the other hand of any denial thereof. It is purely an act of
neutrality. Ceaseless and irreconcilable controversy exists among our citizens
and taxpayers, having equal rights, touching matters of religious faith, and it
is within the power of the Legislature to declare that the subject shall be
excluded from the tax-supported institutions, that the state shall stand
neutral, rendering “unto Caesar the things which be Caesar’s and unto God
the things which be God’s,” and insuring the completeness of separation of
church and state. [15]

Interestingly, while that court viewed upholding the law
as an act of neutrality, contemporary courts have found State acts which are far
more innocuous than that 1925 Tennessee law—acts expressly mandating
neutrality—now to be unconstitutional establishments of religion. [16]
For example, American Law Reports noted:

The Supreme Court held that the establishment
clause was violated by Louisiana’s Balanced Treatment for Creation-Science and
Evolution-Science in Public School Instruction Act, in Edwards v. Aguillard
(1987) 482 US 578, 96 L Ed 2d 510, 107 S Ct 2573. The Act declared that it was
enacted to protect academic freedom; required public schools to give balanced
treatment to the “sciences” of creation and evolution in classroom lectures,
textbooks, library materials, or other programs to the extent that they dealt in
any way with the origin of man, life, the earth, or the universe; decreed that
when creation or evolution is taught, each shall be taught as a theory rather
than proven scientific fact; defined “Creation-Science” and
“Evolution-Science” as the scientific evidence for, respectively, creation
or evolution, and inferences therefrom; forbid discrimination against any public
school teacher who chooses to be a creation scientist or to teach scientific
data pointing to creationist; provided that instruction in the subject of
origins is not required, but insisted on instruction in both creationist and
evolutionary models if public schools chose to teach either. [17]

Significantly, even though the Louisiana statute
specifically mandated that instruction be limited to an examination of
“scientific data” and the “scientific evidence for, respectively, creation
or evolution” and never mentioned either God or the Bible, the Court
nevertheless found it to be an unconstitutional establishment of religion. As
one legal observer insightfully noted, “The courts. . . . apparently find
creationism to be a religious doctrine, but will not make evident the definition
of religion which underlies their decisions.” [18]

Yet, why did the earlier Tennessee court find that a
State statute that specifically acknowledged God in relation to creation was not
an unconstitutional establishment of religion? Because, as Justice Chambliss
explained, the law reflected the provisions of . . .

. . . our Constitution, and the fundamental
Declaration lying back of it, through all of which runs recognition of and
appeal to “God” and a life to come. The Declaration of Independence opens
with a reference to “the laws of nature and nature’s God,” and holds this
truth “to be self-evident, that all men are created equal, that they are
endowed by their Creator,” etc., and concludes “with a firm reliance on the
protection of Divine Providence.” The Articles of Confederation and Perpetual
Union read, “And whereas it hath pleased the Great Governor of the world . . .
[19]

Because the state law was consistent with the explicit
language in our federal governing documents, and because it negated only “the
right to teach in the public schools a denial of the existence, recognized by
our Constitution, of the Creator of all mankind,” [20]
it was upheld by the Court. Based, therefore, on the wording in the founding
documents, Chambliss had concluded:

That the Legislature may prohibit the teaching of
the future citizens and office holders to the State a theory that denies the
Divine Creator will hardly be denied. [21]

Significantly, to reach this conclusion, the
decision had cited three of the four documents identified in the U. S. Code as
“organic laws”[22]—those
documents that establish and define the operation of our government. Since those
organic laws specifically fuse into the American structure of government the
concept of a divine creator, a probing question is: may the judiciary nullify,
or rule to be unconstitutional, a teaching expressly set forth in the documents
it is charged with upholding?

The Timelessness of the
Conflict

The response to this question often comes in the form of
an objection: science has acquired new information unknown to those who framed
our government; based, therefore, on this new information, the courts must reach
conclusions at variance with those stipulated by the founding documents. Or, as
Vermont Law School Professor Steven Wise argues, “Facts change and with them
the scientific theories that assume those facts. . . . When facts change, the
law that assumes those facts should change.” [23]

However, it is a mistake to believe that the arguments
about evolution actually postdate the framers of our documents. While uninformed
laymen erroneously believe the theory of evolution to be a product of Charles
Darwin in his first major work of 1859, the historical records are exceedingly
clear that our framers were well-acquainted with the theories and principle
teachings of evolution—as well as the science and philosophy both for and
against that thesis—well before Darwin synthesized those long-standing
teachings in his writings.

For example, Nobel Prize winner Bertrand Russell
explains: “The general idea of evolution is very old; it is already to be
found in Anaximander (sixth century B.C.). . . . [and] Descartes, Kant, [and]
Laplace had advocated a gradual origin for the solar system in place of sudden
creation.” [24] Professor Henry Fairfield
Osborn, a zoologist and paleontologist, agrees, declaring that there are
“ancient pedigrees for all that we are apt to consider modern. Evolution has
reached its present fullness by slow additions in twenty-four centuries.” [25] He continues,

“Evolution as a natural explanation of the origin of the higher forms of life
. . . developed from the teaching of Thales and Anaximander into those of
Aristotle. . . . and it is startling to find him, over two thousand years ago,
clearly stating, and then rejecting, the theory of the survival of the fittest
as an explanation of the evolution of adaptive structures.” [26]

And British anthropologist Edward Clodd similarly affirms that, “The pioneers
of evolution—the first on record to doubt the truth of the theory of special
creation, whether as the work of departmental gods or of one Supreme Deity,
matters not—lived in Greece about the time already mentioned; six centuries
before Christ.” [27]

For example, Anaximander (600 b.c.) introduced the theory
of spontaneous generation; Diogenes (550 b.c.) introduced the concept of the
primordial slime; Empedocles (495-455 b.c.) introduced the theory of the
survival of the fittest and of natural selection; Democritus (460-370 b.c.)
advocated the mutability and adaptation of species; the writings of Lucretius,
before the birth of Christ, announced that all life sprang from “mother
earth” rather than from any specific deity; Bruno (1548-1600) published works
arguing against creation and for evolution in 1584-85; Leibnitz (1646-1716)
taught the theory of intermedial species; Buffon (1707-1788) taught that man was
a quadruped ascended from the apes, about which Helvetius also wrote in 1758;
Swedenborg (1688-1772) advocated and wrote on the nebular hypothesis (the early
“big bang”) in 1734, as did Kant in 1755; etc. It is a simple fact that
countless works for (and against) evolution had been written for over two
millennia prior to the drafting of our governing documents and that much of
today’s current phraseology surrounding the evolution debate was familiar
rhetoric at the time our documents were framed.

In fact, Dr. Henry Osborn, curator of the American Museum
of Natural History in New York City, describes the third period in the history
of evolution [28]—the period in which our
framers lived—as a period which produced the evolution writings of
“Linnaeus, Buffon, E[rasmus] Darwin, Lamarck, Goethe, Treviranus, Geof. St.
Hilaire, St. Vincent, Is. St. Hilaire. Miscellaneous writers: Grant, Rafinesque,
Virey, Dujardin, d’Halloy, Chevreul, Godron, Leidy, Unger, Carus, Lecoq,
Schaafhausen, Wolff, Meckel, Von Baer, Serres, Herbert, Buch, Wells, Matthew,
Naudin, Haldeman, Spencer, Chambers, Owen.” [29]
Clearly, then, it was not in the absence of knowledge about the debate over
evolution, but rather in its presence, that our framers made the decision to
incorporate in our governing documents the principle of a creator.

Thomas Paine provides one example affirming this.
Although Paine was the most openly and aggressively anti-religious of the
founders, in his 1787 Discourse at the
Society of Theophilanthropists in Paris
, Paine nevertheless forcefully
denounced the French educational system which taught students that man was the
result of prehistoric cosmic accidents or had developed from some other species:

It has been the error of schools to teach
astronomy, and all the other sciences and subjects of natural philosophy, as
accomplishments only; whereas they should be taught theologically, or with
reference to the Being who is the Author of them: for all the principles of
science are of divine origin. Man cannot make, or invent, or contrive
principles; he can only discover them, and he ought to look through the
discovery to the Author.

When we examine an extraordinary piece of
machinery, an astonishing pile of architecture, a well-executed statue, or a
highly-finished painting where life and action are imitated, and habit only
prevents our mistaking a surface of light and shade for cubical solidity, our
ideas are naturally led to think of the extensive genius and talent of the
artist.

When we study the elements of geometry, we
think of Euclid. When we speak of gravitation, we think of Newton. How, then, is
it that when we study the works of God in creation, we stop short and do not
think of God? It is from the error of the schools in having taught those
subjects as accomplishments only and thereby separated the study of them from
the Being who is the Author of them. . . .

The evil that has resulted from the error of
the schools in teaching natural philosophy as an accomplishment only has been
that of generating in the pupils a species of atheism. Instead of looking
through the works of creation to the Creator Himself, they stop short and employ
the knowledge they acquire to create doubts of His existence. They labor with
studied ingenuity to ascribe everything they behold to innate properties of
matter and jump over all the rest by saying that matter is eternal.

And when we speak of looking through nature
up to nature’s God, we speak philosophically the same rational language as
when we speak of looking through human laws up to the power that ordained them.

God is the power of first cause, nature is
the law, and matter is the subject acted upon.

But infidelity, by ascribing every phenomenon
to properties of matter, conceives a system for which it cannot account and yet
it pretends to demonstration. [30]

Paine certainly did not advocate this position as a
result of religious beliefs or of any teaching in the Bible, for he believed
that “the Bible is spurious” and “a book of lies, wickedness, and
blasphemy.” [31]
Yet, this anti-Bible Founder was nevertheless a strong supporter of teaching the
theistic origins of man.

Theistic v.
Non-Theistic Approaches

For the past twenty-five centuries, the debate has
divided itself along two primary approaches. As Justice Chambliss noted:

Two theories of organic evolution are well
recognized, one the theistic. . . . [and t]he other theory is known as the
materialistic, which denies that God created man, that He was the first cause. [32]

Confirming this general distinction between approaches,
Dr. Robert Clark from Cambridge notes:

Haeckel [1834-1919] claimed that spontaneous
generation must be true, not because its truth could be confirmed in the
laboratory, but because, otherwise, it would be necessary to believe in a
Creator. . . . Compare the remark of Sir Charles Lyell [1797-1875, author of
several works that influenced Darwin], “The German critics have attacked me
vigorously, saying that by the impugning of the doctrine of spontaneous
generation, I have left them nothing but the direct and miraculous intervention
of the First Cause.” [33]

Yet, despite the fact that the arguments about evolution
are frequently drawn toward religion, John Dewey accurately observed:

The vivid and popular features of the
anti-Darwinian row tended to leave the impression that the issue was between
science on one side and theology on the other. Such was not the case—the issue
lay primarily within science itself, as Darwin himself early recognized. [34]

Indeed, this has always been, and still is, a hotly
contested debate among highly credentialed scientists from both sides; and these
debates over evolution continue to prove that establishing the origin of man is,
scientifically speaking, an inquiry still surrounded by much hypothetical
conjecture and debate. That is, while science is settled among all scientists on
issues like gravity, fluid dynamics, heliocentricity, the laws of motion, etc.,
there still is no clear consensus—or anything approaching it—among
scientists on the issue of the origins of man.

While the debate over the origins of man has always been
between a theistic and a non-theistic explanation, among those who embrace the
theistic view have been found—and still are found—three distinct approaches
(although the latter two are not incompatible with the first): (1)
intelligent-design (that which exists came into being by divine guidance, but
the period of time required or the specifics of the process are unsettled,
possibly unprovable, and therefore remain debatable); (2) theistic evolution
(that which exists came into being over a long, slow passing of time through
natural laws and processes but under divine guidance); and (3) special creation
(that which exists came into being in six literal days). This, then, makes four
separate historical approaches to the origins of man: three theistic, and one
non-theistic.

In the non-theistic camp, [35]
Empedocles (495-435 b.c.) was the father and original proponent of the evolution
theory, followed by advocates such as Democritus (460-370 b.c.), Epicurus
(342-270 b.c.), Lucretius (98-55 b.c.), Abubacer (1107-1185 a.d.), Bruno
(1548-1600), Buffon (1707-1788), Helvetius (1715-1771), Erasmus Darwin
(1731-1802), Lamarck (1744-1829), Goethe (1749-1832), Lyell (1797-1875), etc.

In the theistic camp, Anaxigoras (500-428 b.c.) was the
father of intelligent design; that same belief was also expounded by such
distinguished scientists and philosophers Descartes (1596-1650), Harvey
(1578-1657), Newton (1642-1727), Kant (1729-1804), Mendel (1822-1884), Cuvier
(1769-1827), Agassiz (1807-1873), etc. Significantly, even Charles Darwin
(1809-1882), strongly influenced by the writings of Paley (1743-1805), [36]
embraced the intelligent design position at the time that he wrote his celebrated work, explaining:

Another source of conviction in the existence of
God, connected with the reason and not with the feelings, impresses me as having
much more weight. This follows from the extreme difficulty, or rather
impossibility, of conceiving this immense and wonderful universe, including man
with his capacity of looking far backwards and far into futurity, as the result
of blind chance or necessity. When thus reflecting I feel compelled to look to a
First Cause having an intelligent mind in some degree analogous to that of man;
and I deserve to be called a Theist. This conclusion was strong in my mind about
the time, as far as I can remember, when I wrote the Origin of Species. [37]

John Dewey, an ardent 20th century proponent of
Darwinism, explained why the intelligent design position—scientifically
speaking—was reasonable:

The marvelous adaptation of organisms to their
environment, of organs to the organism, of unlike parts of a complex
organ—like the eye—to the organ itself; the foreshadowing by lower forms of
the higher; the preparation in earlier stages of growth for organs that only
later had their functioning—these things are increasingly recognized with the
progress of botany, zoology, paleontology, and embryology. Together, they added
such prestige to the design argument that by the later eighteenth century it
was, as approved by the sciences of organic life, the central point of theistic
and idealistic philosophy. [38]

(This position of intelligent design, also called the
anthropic or teleological view, is now embraced by an increasing number of
contemporary distinguished scientists, non-religious though many of them claim
to be. [39])

The second camp within the theistic approach is theistic
evolution, which was first propounded by Aristotle (384-322 b.c.). Other
prominent expositors of this view included Gregory of Nyssa (331-396 a.d.),
Augustine of Hippo (354-430 a.d.), St. Gregory the First (540-604 a.d.), St.
Thomas Aquinas (1225-1274), Leibnitz (1646-1716), Swedenborg (1688-1772), Bonnet
(1720-1793), and numerous contemporary scientists. In fact, many of Darwin’s
contemporaries embraced this view, believing that “natural selection could be
the means by which God has chosen to make man.” [40]
As confirmed by Dr. James Rachels, professor at the University of Alabama at
Birmingham:

Mivart [1827-1900, a professor in Belgium] became
the leader of a group of dissident evolutionists who held that, although man’s
body might have evolved by natural selection, his rational and spiritual soul
did not. At some point God had interrupted the course of human history to
implant man’s soul in him, making him something more than merely a former ape.
. . . Wallace [1823-1913, who advocated natural selection prior to Darwin] took
a view very similar to that of Mivart: he held that the theory of natural
selection applies to humans, but only up to a point. Our bodies can be explained
in this way, but not our brains. Our brains, he said, have powers that far
outstrip anything that could have been produced by natural selection. Thus he
concluded that God had intervened in the course of human history to give man the
“extra push” that would enable him to reach the pinnacle on which he now
stands. . . . Natural selection, while it explained much, could not explain
everything; in the end God must be brought in to complete the picture. [41]

In fact, Darrow himself, during the trial, admitted that
this was a prominent position of many in that day, [42]
and Dudley Malone, Darrow’s co-counsel, even declared:

[W]e shall show by the testimony of men learned in
science and theology that there are millions of people who believe in evolution
and in the stories of creation as set forth in the Bible and who find no
conflict between the two. [43]

Interestingly, writers who chronicle the centuries-long
history of the evolution debate [44]
confirm that there have always been numerous evolutionists in both the theistic
and the non-theistic camps, and much of the proceedings in the Scopes trial
reaffirmed that a belief in evolution was not incompatible with teaching
theistic origins and a belief in a divine creator.

The third camp, special (or literal) creation, was
championed by Francisco Suarez (1548-1617) and later by Pasteur (1822-1895) as
well as by subsequent contemporary scientists.

The history of this controversy through recent years and
even previous centuries makes clear that scientific discovery has not
significantly altered any of these four views. There have always been, and still
continue to be, scientists in each group finding new scientific facts that they
interpret to bolster their arguments. Remarkably, only judges seem comfortable
in settling which side of an ongoing centuries-old scientific debate is correct.

Public Opinion on the Issue

Another noteworthy part of the Tennessee decision was the
court’s desire to reach neutrality, as it explained, by teaching, on the one
hand, neither the “Bible, or any of its doctrines or dogmas,” or, on the
other hand, “teaching the denial of . . . divine creation,” because “it is
too well established for argument that ‘the story of the divine creation of
man as taught in the Bible’ is accepted—not ‘denied’—by millions of
men and women.” [45]
Today, nearly a century-and-a-half after Darwin’s original work, and following
literally thousands of writings by scientists and philosophers on all sides of
the evolution controversy, the courts’ characterization in the Scopes decision
still seems accurately to reflect the public’s sentiment today.

For example, in the 1920s, twenty state legislatures
considered measures to prohibit the teaching of anti-theistic evolution; in the
1990s, the number of states that considered such measures was
identical—twenty. [46]
Polls also confirm that there has not been much shift in public opinion in
recent decades. For example, in 1982, 9 percent of the nation believed in
non-theistic origins, 38 percent in theistic evolution, and 44 percent in
theistic special creation. [47]
In 1998, an average was compiled of polls from the 1980s and 1990s, finding that
during that period, 10 percent believed in non-theistic origins, 40 percent in
theistic evolution, and 45 percent believed in theistic special creation. [48] Then a subsequent 1999
poll found that 9 percent believed in non-theistic origins, 40 percent in
theistic evolution, and 47 percent in theistic special creation. [49]

Numerous other polls regularly confirm that from 85 to 90
percent of Americans embrace a theistic view, yet the courts simply do not
permit this view to be presented, [50]
preferring instead what the Tennessee court had described as the “teaching of
the denial” of the belief accepted “by millions of men and women.” The
Supreme Court has indeed become a self-described “super board of education for
every school district in the nation” [51]
by prescribing non-theistic origins as the state orthodoxy throughout all public
school classrooms.

An Informed Decision

Significantly, each provision of our governing documents
reflects a deliberate choice based on specific reasoning, and as previously
demonstrated, the evolution controversy was well developed at the time our
founding documents were drafted. The framers therefore deliberately chose to
incorporate into those documents not only the belief in theistic origins over
that of non-theistic origins but also a belief in elected representation over
hereditary leadership, the consent of the governed over monarchy, separation of
powers over consolidation, bicameralism over unicameralism, republicanism over
democracy, etc.

Consequently, the fact that a position for a divine
creator is officially made a part of our founding documents—documents of
government and not documents of religion—makes theistic origins a part of our
political, not merely religious or even scientific, theory. Under our founding
documents, therefore, the judiciary can no more disallow theism than it can
disallow republicanism or separation of powers.

Yet, if the contemporary courts are correct that either
the acknowledgment of God or the teaching of a divine creator is an
unconstitutional establishment of religion under the First Amendment, then
evidently one of the purposes for the First Amendment was to keep specific
principles in the Declaration of Independence from being taught. While such a
conclusion is illogical, it is nevertheless defended by asserting that the
belief of a creator is incorporated into the Declaration rather than the
Constitution, and that the Declaration is a separate document from, and is not
to affect the interpretation of, the Constitution.

This argument is of recent origin, however, for well into
the twentieth century, the Declaration and the Constitution were viewed as
interdependent rather than as independent documents. In fact, the U. S. Supreme
Court declared:

[T]he latter [the Constitution] is but the body and
the letter of which the former [the Declaration of Independence] is the thought
and the spirit, and it is always safe to read the letter of the Constitution in
the spirit of the Declaration of Independence. [52]

No other conclusion logically can be reached since the
Constitution directly attaches itself to the Declaration in Article VII by
declaring:

Done in convention by the unanimous consent of the
States present the seventeenth day of September in the Year of our Lord one
thousand seven hundred and eighty seven, and of the independence of the United
States of America the twelfth
. (emphasis added)

Additional evidence that the framers viewed the
Declaration as inseparable from the Constitution is seen by the fact that
Presidents George Washington, John Adams, Thomas Jefferson, James Madison, et
al., dated their government acts under the Constitution from the Declaration
rather than the Constitution. [53]

Furthermore, the admission of territories as States into
the Union was often predicated on an assurance by the State that the State’s.
. .

. . . constitution, when formed, shall be
republican, and not repugnant to the Constitution of the United States and the
principles of the Declaration of Independence. [54]

The framers believed that the Declaration provided the
core values by which the Constitution was to operate, and that the Constitution
was not to be interpreted apart from those values. As John Quincy Adams
explained in his famous oration, The Jubilee of the Constitution:

[T]he virtue which had been infused into the
Constitution of the United States . . . was no other than the concretion of
those abstract principles which had been first proclaimed in the Declaration of
Independence. . . . This was the platform upon which the Constitution of the
United States had been erected. Its virtues, its republican character, consisted
in its conformity to the principles proclaimed in the Declaration of
Independence and as its administration . . . was to depend upon the . . .
virtue, or in other words, of those principles proclaimed in the Declaration of
Independence and embodied in the Constitution of the United States. [55]

The framers never imagined that the Constitution could be
interpreted to violate the values they had erected in the Declaration; for,
under America’s government as originally established, a violation of the
principles of the Declaration was just as serious as a violation of the
provisions of the Constitution. Nonetheless, courts over the past half-century
have isolated the two documents, now making them mutually exclusive.

A Battle of Civilizations

Returning to an examination of the Scopes case; since the
point in question was not whether evolution teaching could be banned but rather
whether evolution teaching that denied the principles of the founding documents
could be banned, what, then, did the participants of the Scopes case see as the
real issue? Strikingly, both sides believed that the case actually represented a
struggle for society itself.

Scopes’ defense counsel Arthur Hays described the case as
a “duel to the death,” [56]
and prosecutor Gen. Thomas Stewart confirmed that it was an issue that
“strikes at the very vitals of civilization.” [57]
William Jennings Bryan called it “a duel between two great ideas,” [58]
and Darrow, shortly after the trial started, deprecatingly acknowledged that he
was arguing the case as if it were “a death struggle between two
civilizations.” [59]

The participants on each side—like so many before and
after them—understood that the ramifications of the question of theistic
origins went far beyond any alleged scientific dispute and focused rather on
what type of civilization America would experience. Interestingly, much of the
debate in the trial actually addressed the societal ramifications that would be
realized under each viewpoint.

Yet, how does a conflict between a theistic and a
non-theistic view of the origins of man actually affect civilization? Because
the view embraced determines a culture’s approach to the meaning of life, and
therefore subsequently will define both the purpose of government and the manner
in which it will interact with its citizens. As Princeton Professor Peter Singer
explains:

In what sense does rejection of belief in a god
imply rejection of the view that life has any meaning? If this world had been
created by some divine being with a particular goal in mind, it could be said to
have meaning, at least for that divine being. If we could know what the divine
being’s purpose in creating us was, we could then know what the meaning of our
life was for our creator. If we accepted our creator’s purpose (though why we
should do that would need to be explained), we could claim to know the meaning
of life.

When we reject belief in a god we must give up the
idea that life on this planet has some preordained meaning. Life as a whole has
no meaning. Life began, as the best available theories tell us, in a chance
combination of molecules; it then evolved through random mutations and natural
selection. All this just happened; it did not happen for any overall purpose.
Now that it has resulted in the existence of beings who prefer some states of
affairs to others, however, it may be possible for particular lives to be
meaningful. [60]

As Singer observes, if there is a creator, then there can
be a purpose and meaning—even an intrinsic value—to life; however, if there
is no creator, then there is meaning only for “particular” lives. Thus, how
government touches the lives of its citizens will be radically different,
depending on which view is adopted.

For example, will all lives have intrinsic worth and
therefore be protected equally by government, or will just “particular”
lives have worth and therefore receive special protection and treatment? And if
not all lives have equal worth, then who determines which lives will have
worth—and what criteria will be used to make that determination? And if there
is no creator, then there is no special purpose for a life—or a society—and
in place of order and design instead will be policies reflecting chance and
variableness; and if there is no design, then even morality itself must become
relative, dependent upon time, place, and circumstances.

John Dewey, a strong supporter of Darwin, recognized the
difference that a belief in design made to a society. As he acknowledged, a
society that embraced the “design argument” was characterized by
“purposefulness,” and “this purposefulness gave sanction and worth to the
moral and religious endeavors of man.” [61]
However, as he also recognized, “the Origin of Species introduced a mode of
thinking that in the end was bound to transform the logic of knowledge, and
hence the treatment of morals, politics, and religion.” [62]
In short, to embrace Darwin’s principles would result in a paradigm shift
throughout the whole of society. As Commager confirmed:

The impact of Darwin. . . . repudiated the
philosophical implications of the Newtonian system, substituted for the neat
orderly universe governed by fixed laws, a universe in constant flux whose
beginnings were incomprehensible and whose ends were unimaginable, reduced man
to a passive role, and by subjecting moral concepts to its implacable laws
deprived them of that authority which had for so long furnished consolation and
refuge to bewildered man. [63]

Darrow recognized—and Dewey, Singer, and others
subsequently confirmed—that Darwinism would result in a new approach to
civilization. [64]

However, this difference in the societal—that is, the
civilizational—effects proceeding from which view of the origins of man was
adopted was already understood and articulated centuries ago both by the framers
and by the political theorists on whom they relied. Therefore, their decision to
invoke the belief in a creator into our form of government was willfully to
establish an approach that would distinguish the American philosophy of a
civilized society from the non-theistic approaches to civilization present in so
many other nations of that day. [65]

The remainder of this work will document the various
manners in which the judiciary’s rejection of theistic origins has
dramatically altered the American civilization—her approach to law, morality,
crime and punishment, and even the role, and the form, of government.

(Note: Whereas evolution in past generations could mean
either theistic or non-theistic origins, as a result of court decisions over the
past three decades, evolution is now understood to mean only the non-theistic
view. In fact, even theistic evolution is currently called creationism and is
seen to be “religious,” notwithstanding the fact that many of its
proponents—including Darwin, Paine, Dewey, etc.—were not even remotely
religious. Therefore, for the remainder of this work, the terms “evolution”
and “Darwinism” will, according to their contemporary usage, refer to the
non-theistic approach to the origins of man.)

Uniqueness v. Speciesism

From the belief that a creator made human life (that,
according to the Declaration of Independence, “all men are created”), and that human life was made with design or purpose,
proceeded the ancillary belief that human life was therefore distinct.
Consequently, not only was all human life equal in value (“all men are created
equal”) [66]
but also all human life was unique from and more important than other life; and
so man must be a good steward of the world in which he is placed. [67]
More, therefore, would be expected from man than from any other being in
creation.

Pufendorf, [68]
one of the chief political theorists on whom the framers relied and whom they
highly recommended to following generations, [69]
encapsulated this belief in these words:

[T]he word humanity import[s] that condition in
which man is placed by his creator, who hath been pleased to endue him with
excellencies and advantages in a high degree above all other animate beings. . .
. and that ‘tis expected that he should maintain a course of life far
different from that of brutes. [70]

William Blackstone, [71]
in his famous Commentaries on the Laws, [72]
similarly explained:

In the beginning of the world . . . the
all-bountiful creator gave to man, “dominion over all the earth; and over the
fish of the sea, and over the fowl of the air, and over every living thing that
moveth upon the earth.” This is the only true and solid foundation of man’s
dominion over external things, whatever airy metaphysical notions may have been
started by fanciful writers upon this subject. The earth therefore, and all
things therein, are the general property of all mankind, exclusive of other
beings, from the immediate gift of the creator. [73]

Thus, from the belief in a creator came the ensuing
belief that man was a unique species, alone endowed with superior rational and
moral capacities, and that he held intrinsic worth surpassing that of what John
Locke [74]
had called “all inferior creatures,” [75]
or all other species. Man’s life, therefore, had purpose—or, in the words of
John Dewey, “the classic notion of species carried with it the idea of
purpose.” [76]

Darwin changed that view, asserting that man actually was
not very special after all. As he explained, “Man, in his arrogance, thinks
himself a great work, worthy of the interposition of a deity. More humble and, I
believe, true, to consider him created from animals.” [77]
Regarding this statement, Dr. James Rachels observed:

Darwin wrote these words in 1838, twenty-one years
before he was to publish The Origin of Species. He would go on to support this
idea with overwhelming evidence, and in doing so he would bring about a profound
change in our conception of ourselves. [78]

Independent observers had quickly grasped the
ramifications of this change in the value of man. In fact, one critic challenged
Sir Charles Lyell (a writer who strongly influenced Darwin) on this very point.
As Lyell reported, “one of Darwin’s reviewers put the alternative strongly
by asking ‘whether we are to believe that man is modified mud or modified
monkey.’ The mud is a great comedown from the ‘archangel ruined’.” [79]
Because of Darwin, man was now just one of the animals, and as Commager noted:

The impact of Darwin. . . . was a blow to man
rather than to God who, in any event, was better able to bear it, for if it
relegated God to a dim first cause, it toppled Man from his exalted position as
the end and purpose of creation, the crown of nature, and the image of God, and
classified him prosaically with the anthropoids. [80]

Consequently, since man was now just one of the animals,
English scholar Henry Salt urged in 1892 that “we must get rid of the
antiquated notion of a ‘great gulf’ fixed between them [animals] and mankind
and must recognize the common bond of humanity that unites all living beings in
one universal brotherhood.” [81]
And since man had now become part of one “universal brotherhood” with all
other animals, then all shared the same future. That is, if man had a soul and a
spirit, so did the animals; if they did not, neither did he. As Salt explained,
“mankind and the lower animals have the same destiny before them, whether that
destiny be for immortality or for annihilation.” [82]
As Dr. Rachels so well summarized:

After Darwin, we can no longer think of ourselves
as occupying a special place in creation—instead, we must realize that we are
products of the same evolutionary forces, working blindly and without purpose,
that shaped the rest of the animal
kingdom. [83]

Dr. Margot Norris, professor at the University of
California at Irvine, confirms, “Darwin collapsed the cardinal distinctions
between animal and human.” [84]
Princeton Professor Peter Singer agrees, observing that because of Darwin’s
proposals, “Human beings now knew that they were not the special creation of
God, made in the divine image and set apart from the animals; on the contrary,
human beings came to realize that they were animals themselves.” [85]
Therefore, as Henry Salt pointed out, “the term ‘animals,’ as applied to
the lower races, is incorrect . . . since it ignores the fact that man is an
animal no less than they.” [86]

Today, the belief that man is in any way different from,
or superior to, other animal species is known as “speciesism” [87]—a
term coined in 1920 by Oxford psychologist Richard Ryder. [88]
Peter Singer, a founder of PETA (People for the Ethical Treatment of Animals)
calls speciesism “a form of prejudice, immoral and indefensible in the same
way that discrimination on the basis of race is immoral and indefensible.” [89]
Just as a racist considers those from another race as inferior, a speciesist
considers those from another species as inferior. A speciesist is simply a more
universal form of a racist.

Dr. Steve Sapontzis, a professor at Cal State, argues
that since man is not superior to other species, it is therefore wrong to be a
speciesist. He asserts:

[I]t is not membership in any particular species
that confers higher value on one’s life. It is the possession of
intellectual abilities, which could belong to a wide variety of life forms. It
is an empirical accident, a fluke of evolution, that only the human species has
developed these abilities. [90]

North Carolina State University Professor Tom Regan
concurs:

[I]t has long seemed to me that far too much moral
importance is attached to being a person. . . . That someone is a person is
morally relevant, certainly. But that being a person makes one morally
superior, or confers on that individual moral rights no other living being can
possibly possess: these seem to me to be more in the nature of arrogant dogma
than reasoned belief. [91]

Dr. Marc Hauser, professor at Harvard, agrees:

To admire our species for its qualities is natural.
To place us with the gods and angels, above all the others, is both pompous and
boring. It is pompous because it places us on top of an intellectual pyramid
without articulating the criteria for evaluation. It is boring because it
ignores differences in thinking, and fails to search for an understanding of how
different shades of mind evolved. [92]

Steven Wise, instructor of animal law courses at four
universities, therefore ridicules as ‘imbecilic’ the belief that human
beings are superior to other animals and charged with dominion over them. [93]
Very simply, all species are equal—or, in the words of Ingrid Newkirk,
director of a powerful animal rights group, “A rat is a pig is a boy is a
dog.” [94]

If there is no significant difference in value between
the species, then the death of a member of a non-human species is as great a
tragedy as the death of one from the human species. As Singer explains:

[W]hether a being is or is not a member of our
species is, in itself no more relevant to the wrongness of killing it than
whether it is or is not a member of our race. The belief that mere membership of
our species, irrespective of other characteristics, makes a great difference to
the wrongness of killing a being is a legacy of religious doctrines. [95]

In fact, when Dr. Regan was asked, “If you were aboard
a lifeboat with a baby and a dog, and the boat capsized, would you rescue the
baby or the dog?” Regan responded, “If it were a retarded baby, and bright
dog, I’d save the dog.” [96]

With the rejection of the theistic approach to origins,
all other life forms are now elevated in value to that once uniquely held by
humans. This view has resulted in an aggressive animal rights movement. Dr. Jack
Albright, professor at Purdue, summarizes the main tenets of the animal-rights
non-speciesists:

[P]roponents of animal rights hold that animals
must not be exploited in any manner. In other words, the only interactions
humans should have with animals are those that occur by happenstance or those
that are initiated by an animal. Animal rights advocates believe that animals
have basic rights—many say, the same as people—to be free from confinement,
pain, suffering, use in experiments, and death for reason of consumption by
other animals (including humans). Thus, animal rights advocates oppose the use
of animals for food, for clothing, for entertainment, for medical research, for
product testing, for seeing-eye dogs, and as pets. . . . The animal rights
proponents believe that humans have evolved to a point where they can live
without any animal products—meat, milk, eggs, honey, leather, wool, fur, silk,
by products, etc. These advocates offer a long list of concerns in support of
the conclusion that neither medical researchers nor the cosmetic industry has
the right to experiment on animals. They also conclude that the animal kingdom
is exploited by hunters, zoos, circuses, rodeos, horse racing, horseback riding,
the use of simians (small primates) to assist quadraplegics in wheelchairs, and
by the keeping of animals as pets. [97]

Under this more “evolved” non-speciesist view, the
alleged mistreatment of animals is often described in terms of human brutalities
and compared to human atrocities. For example, the co-director of one national
animal rights group declared: “Six million people died in concentration camps,
but six billion broiler chickens will die this year in slaughter houses.” [98]
Others, like Peter Singer, a candidate from the Green Party, make similar
comparisons:

You cannot write objectively about the experiments
of the Nazi concentration camp “doctors” on those they considered
“subhuman” without stirring emotions; and the same is true of a description
of some of the experiments performed today on nonhumans in laboratories in
America, Britain, and elsewhere. [99]

Long time Cal State professor Steve Sapontzis agrees:

Believing that the superior value of human life
justifies sport hunting, luxury furs, or veal production presumes a hidden,
feudalistic premise. That is an easy presumption, however, when we are sure
that we are and will remain at the top of the feudal power pyramid. That
is, of course, just what we are sure of in our relation to animals, and why we
can with such clear consciences continue to be Nazis to our animals. [100]

Singer also finds similarities with African-American
slavery, declaring that what animals have endured “can only be compared with
that which resulted from the centuries of tyranny by white humans over black
humans.” [101] In fact, Dr. Susan
Finsen, professor at Cal State, believes that those human atrocities—and even
the current “exploitation of women, gays, third world peoples, etc., is bound
up with the exploitation of animals.” [102]
Singer therefore asserts, “It can no longer be maintained by anyone but a
religious fanatic that man is the special darling of the whole universe, or that
other animals were created to provide us with food.” [103]

Believing,
then, that the death of an animal is the equivalent of a Nazi murder, non-speciesists
make every effort to bring to bear the full force of the law to protect animals.
So strong is the movement resulting from this non-theistic belief of origins
that courses on animal law are now being offered at Harvard, the University of
California, Vermont Law School, Georgetown, John Marshall Law School, Tufts
University, the University of Oregon, and a number of other prominent schools.

Seeking to remove any and all distinctions between humans
and animals, the effort is underway to obtain not only legal “personhood
status” for animals but also to win for them “[m]any of the ‘rights’
that humans consider profoundly dear, such as life, liberty, and the pursuit of
happiness.” [104] Professor Steven Wise of
the John Marshall Law School sets forth the goal:

For centuries, a Great Legal Wall has divided
humans from every other species of animal in the West. On one side, every human
is a person with legal rights; on the other, every non-human is a thing with no
legal rights. Every animal rights lawyer knows that this barrier must be
breached.” [105]

The difficulties faced in ultimately achieving these
legal rights for non-human animals—according to Professor Wise— is that:

Since “animal law” is primarily a matter of
state concern, the battle for the legal personhood of non-human animals will
have to proceed on fifty state fronts. [106]

Recognizing that non-human animals “have no more power
to bring their own claims [before a court] than do human incompetents,” [107]
Wise therefore recommends several methods by which humans might sue in
behalf of non-human animals, including the seeking of guardianship, the use of
the Federal Rules of Civil Procedure, intervening in a forfeiture action against
non-human animals, etc. [108]
Significantly, his methods have proven successful.

For example, in 1994, Taro, an Akita dog, was sent to
“death row” for attacking and marring a young child, but New Jersey Governor
Christine Todd Whitman signed an official state pardon for the dog on the basis
of forfeiture intervention. [109]
In 1998, the U. S. Court of Appeals for DC granted legal standing to a man suing
on behalf of monkeys in a Long Island zoo. [110]
And in 1993, the Federal Rules for Civil Procedures were extended to a dolphin,
with the court declaring that the “rule could ‘apply to . . . non-human
entities’.” [111]

With attorneys thus “fighting for the rights of the
disenfranchised,” [112]
an amazing cadre of suits now blurs the distinction between human animals and
non-human animals. In fact, the rhetoric surrounding those cases increasingly
describes non-human animals in terms that once were limited solely to humans.

For example, a family in Massachusetts, suing the owners
of dogs that killed their sheep, is seeking more than just the traditional
recovery for damages to their livestock. As they explain, because they were
forced to watch “a lamb grow up without a mother” and to “live with this
fear” of dogs, they are seeking “emotional damages and loss of
companionship, just as if a child had been killed.” [113]
In a separate case based on the injury of a pet at a kennel, a family sued for
“emotional distress” because they “deem that animal as a part of their
family [and] look at the animal as another person.” [114]
In fact, damages were even awarded in one case because a dog “cried” when a
vet worked on its teeth. [115]

Not only do such cases routinely employ once uniquely
human rhetoric but also the cases now decide issues for animals based on how
similar issues for humans would be determined. In fact, courts even acknowledge
that in cases settling disputes over the possession of animals, they may
“analogize it to a child custody case, inquiring into what was in the ‘best
interests’ ” of the animal [116]—terms
usually reserved for children in divorce proceedings. Therefore, in a “custody
dispute” over a cat, the court made its determination based on what was
in the “cat’s best interests,” thereby allowing it to remain where
it had “lived, prospered, loved and been loved” for the previous four years.
[117]

Also reflective of the use of traditional human
descriptions is that of placing animals “in adoptive homes,” [118]
of seeking damages for the loss of the “companionship, loyalty, security, and
friendship” [119] of animals killed in
“wrongful death” scenarios, and even of comparing the handling of a deceased
pet in terms of “the anguish resulting from the mishandling of the body of a
child.” [120]

Clearly, many distinctions between humans and animals,
legally speaking, are blurring, as evidenced by the language in this ruling:

[Dogs] represent some of the best human traits,
including loyalty, trust, courage, playfulness, and love. . . . At the same
time, dogs typically lack the worst human traits, including avarice, apathy,
pettiness, and hatred. Scientific research has provided a wealth of
understanding to us that we cannot rightly ignore. We now know that mammals
share with us a great many emotive and cognitive characteristics, and that the
higher primates are very similar to humans neurologically and genetically. It is
not simplistic, ill-informed sentiment that has led our society to observe with
compassion the occasionally televised plights of stranded whales and dolphins.
It is, on the contrary, a recognition of a kinship that reaches across species
boundaries. The law must be informed by evolving knowledge and attitudes. [121]

Notice the adoption of the legal position that there is a
“kinship” between man and other animals, and that the “kinship” reaches
“across species boundaries” because of our “evolving knowledge and
attitudes.”

This language diminishing legal distinctions between
species—between “human animals” and “non-human” animals—is a direct
result of the non-theistic approach to the origins of man. Clearly, Darwinism has changed the face of American law.

Each of the previous cases, and the new type of American
civilization they represent, proceeds from acceptance of Darwin’s statement
that “the differences between human beings and animals are not so great as is
generally supposed.” [122]
And science certainly seems to confirm Darwin’s thesis—as well as the
position held by non-speciesists—for there is “scientific evidence
suggesting that chimpanzees and humans diverged from the same evolutionary path
and that their DNA is nearly 98.5 percent identical.” [123]
Yet, as explained by Chapman University Professor Tibor Machan, it is not the
similarities that are the most consequential element of the comparison between
man and animals:

Indeed, while humans share about 97% of their DNA
structure with some higher non-human animals, those last 3% are so vital that
all of human civilization, religion, art, science, philosophy and, most
importantly, their moral nature depends upon it. And this is attested to by
most vegans [vegetarians]—e.g., when they appeal to human beings to deal with
other animals in considerate ways rather than to other animals to do this. None
of them turn to a lion, for example, to implore it not to kill the zebra or to
do it more humanely. [124]

It is the three- percent that distinguishes the theistic
view of man’s origin from the non-theistic view, as well as from the various
societal and cultural consequences distinguishing each belief. As John Quincy
Adams warned long ago, without a belief in theistic origins—in that three
percent difference—“man will have no conscience. He will have no other law
than that of the tiger and the shark.” [125]

Transcendency v. Relativism

If the human species is superior to other species, then,
morally speaking, more should be expected from him than from other species. But
what should be the standard for determining man’s morality? And what should be
the authority for establishing the moral standards for man? And should those
standards be established objectively or subjectively? The answers to these
questions vary dramatically depending on whether a theistic or non-theistic
approach is applied.

Under the theistic approach, man was not the source of
the moral standards by which his conduct was to be governed. As James Wilson [126]explained:

When we view the inanimate and irrational creation
around and above us, and contemplate the beautiful order observed in all its
motions and appearances, is not the supposition unnatural and improbable that
the rational and moral world should be abandoned to the frolics of chance or to
the ravage of disorder? What would be the fate of man and of society was every
one at full liberty to do as he listed without any fixed rule or principle of
conduct, without a helm to steer him—a sport of the fierce gusts of passion,
and the fluctuating billows of caprice? [127]

Blackstone had identified the source of what Wilson
termed the “fixed rules or principles of conduct” which were to “steer”
man:

Man, considered as a creature, must necessarily be
subject to the laws of his creator, for he is entirely a dependant being. A
being independent of any other has no rule to pursue but such as he prescribes
to himself; but a state of dependence will inevitably oblige the inferior to
take the will of Him on whom he depends as the rule of his conduct. . . . And
consequently, as man depends absolutely upon his Maker for everything, it is
necessary that he should in all points conform to his Maker’s will. This will
of his maker is called the law of nature. . . . This law of nature, being coeval
with mankind and dictated by God Himself, is of course superior in obligation to
any other. It is binding over all the globe, in all countries, and at all times:
no human laws are of any validity if contrary to this; and such of them as are
valid derive all their force and all their authority, mediately or immediately,
from this original. [128]

This “law of nature”—the “natural law” of which
our framers so often spoke, and which they incorporated into our founding
documents—was to be the basis for man’s moral standards. As Zephaniah Swift,
author of America’s first legal text, explained:

[T]he transcendent excellence and boundless power
of the Supreme Deity . . . impressed upon them [mankind] those general and
immutable laws that will regulate their operation through the endless ages of
eternity. . . . These general laws . . . are denominated the laws of nature. [129]

Others were equally succinct that man’s moral conduct
was to conform to the “natural law” established by the creator. For example:

In the supposed state of nature, all men are
equally bound by the laws of nature, or to speak more properly, the laws of the
creator. [130] Samuel Adams

[T]he laws of nature and of nature’s God . . . of
course presupposes the existence of a God, the moral ruler of the universe, and
a rule of right and wrong, of just and unjust, binding upon man, preceding all
institutions of human society and of government. [131]
John Quincy Adams

[The] “law of nature” is a rule of conduct
arising out of the natural relations of human beings established by the creator
and existing prior to any positive precept [human law]. . . . These . . . have
been established by the creator. [132]
Noah Webster, legislator, judge

The natural law embodied transcendent values—values and
truths which our framers described with adjectives such as “immutable,”
“fixed,” “superior in obligation,” “paramount,” “binding upon
man,” etc. These were principles and truths that, according to Montesquieu, [133]
“do not change”; [134]
or as Declaration signer Dr. Benjamin Rush had described it, it was a set of
principles and laws “certain and universal in its operation upon all the
members of the community.” [135]
Commager summarized this view and its effect on American government and
civilization:

[T]he laws of England, happily transferred to
America, were patterned on the laws of nature. A generation bathed in the
Enlightenment pledged its lives, its fortunes, and its sacred honor to the
conviction that the laws of Nature and Nature’s God required American
independence and justified faith in the unalienable rights of life, liberty, and
the pursuit of happiness. It was not surprising that Americans wrote natural law
into their constitutions, enshrined it in their Bills of Rights, and pronounced
it from their judicial tribunals. According to the philosophy of natural law,
laws are discovered, not made. They are deduced from the nature of things rather
than patterned on the needs of man. [136]

Therefore, under transcendent values, there were
objective standards for morality: that is, murder (as opposed, for example, to
justifiable homicide or self-defense) was always wrong, as was theft, perjury,
and so many other immutable values enshrined in the traditional common law.
Darwin’s views, however, embodied a converse approach to values. As Professor
James Rachels explains, Darwinism poses . . .

. . . a problem for traditional morality.
Traditional morality, no less than traditional religion, assumes that man is a
“great work.” It grants to humans a moral status superior to that of any
other creatures on earth. It regards human life, and only human life, as sacred,
and it takes the love of mankind as its first and noblest virtue. What becomes
of all this, if man is but a modified ape? [137]

Dr. David Wigdor, an analyst at Human Sciences Research,
similarly affirms:

Natural law theorists argued that there were
absolute, unchanging principles to which temporal laws must correspond. This
doctrine of a higher law provided an alternative to the moral neutrality of the
command theory, which accepted the legitimacy of any existing pattern of legal
obligation. . . . Darwinism had undermined its [natural law’s] mechanical,
formalistic elements, and apologists for business had discredited its claims to
superior morality. [138]

Leading legal theorists who acknowledged their debt to
Darwin’s ideas quickly implemented into the legal arena (and therefore
throughout society and culture) a new approach which rejected transcendent
values. For example, Justice Benjamin Cardozo (1870-1938), declared that law
must no longer “work from pre-established truths of universal and inflexible
validity” [139] because principles must
“vary with changing circumstances” and “must be declared to be essentially
relativistic.” [140]
And legal educator Roscoe Pound (1870-1964) similarly advocated that legal
“principles are not absolute but are relative to time and place” [141]
because “ ‘nature’ did not mean to antiquity what it means to us who are
under the influence of the idea of evolution.” [142]

Objective standards for morality were therefore replaced
by new values that, according to Justice Oliver Wendell Holmes (1841-1935),
would now be based on “the felt necessities of the time, the prevalent moral
and political theories . . . [and] the prejudices which judges share with their
fellowmen.” [143] Quite simply, under the
non-theistic paradigm, transcendent, immutable values do not exist because, as
explained by Singer, “they draw on presuppositions—religious, moral,
metaphysical—that are now obsolete.” [144]

So, if man is not a unique species superior to the other
species, and if there are no transcendent values to govern his behavior, what,
then, is the standard for measuring his morality? From what source are his
values to be derived? From the standards of behavior demonstrated by non-human
animals—at least so say psychologists such as Dr. David Buss of the University
of Texas, Dr. Randolph Neese of the University of Michigan, Dr. Douglas Kenrick
of Arizona State, et al., from the emerging field known as evolutionary
psychology. [145]

Robert Wright, an award-winning writer of The
Sciences
magazine who has studied in depth the works and writings of
evolutionary psychologists, summarizes their findings on what man can learn
about his own behavior based, for example, on the sexual behavior of animals:

By studying how the process of natural selection
shaped the mind, evolutionary psychologists are painting a new portrait of human
nature, with fresh detail about the feelings and thoughts that draw us into
marriage—or push us out. . . . According to evolutionary psychology, it is
“natural” for both men and women—at some times, under some
circumstances—to commit adultery or to sour on a mate, to suddenly find a
spouse unattractive, irritating, wholly unreasonable. . . . The premise of
evolutionary psychology is simple. The human mind, like any other organ, was
designed for the purpose of transmitting genes to the next generation; the
feelings and thoughts it creates are best understood in these terms. . . .
Feelings of lust, no less than the sex organs, are here because they aided
reproduction directly. . . . According to evolutionary psychologists, our
everyday, ever shifting attitudes toward a mate or prospective mate—trust,
suspicion, rhapsody, revulsion, warmth, iciness—are the handiwork of natural
selection that remain with us today because in the past they led to behaviors
that helped spread genes. . . . [And] while both sexes are prone under the right
circumstances to infidelity, men seem much more deeply inclined to actually
acquire a second or third mate—to keep a harem. They are also more inclined
toward the casual fling. Men are less finicky about sex partners. . . . There is
no dispute among evolutionary psychologists over the basic source of this male
open-mindedness. A woman, regardless of how many sex partners she has, can
generally have only one offspring a year. For a man, each new mate offers a real
chance for pumping genes into the future. . . . Lifelong monogamous devotion
just isn’t natural. [146]

Darwin, by lowering the status of man to that of the
animals, lowered the standard for human morality. As acknowledged by Professor
James Rachels of UAB, “The whole idea of using animals as psychological models
for humans is a consequence of Darwinism. Before Darwin, no one could have taken
seriously the thought that we might learn something about the human mind by
studying mere animals.” [147]

Yet consider the implications: if man is to establish his
moral standards based on those displayed by the animals, then not only will
monogamy become the exception rather than the rule but also our laws on theft
and murder eventually must be discarded, for in nature, “might makes
right”—possession is based solely on whatever can be taken and held by
force. The implications are frightening for a civilization governed by the
“values” of evolutionary morality rather than by the transcendent, immutable
values derived from theistic origins.

God-Given, Inalienable Rights v. Man-Created,
Alienable Rights

From the belief that there were immutable and
transcendent values proceeded the belief that there were corresponding immutable
and transcendent rights—or what the framers called inalienable rights. As
Constitution signer John Dickinson explained, an inalienable right was a right
“which God gave to you and which no inferior power has a right to take
away.” [148]
John Adams similarly attested that the inalienable rights of man were rights
“antecedent to all earthly government; rights that cannot be repealed or
restrained by human laws; rights derived from the great Legislator of the
universe.” [149] It was from among such
inalienable—or natural—rights that the framers specifically identified the
right to life, liberty, property, self-protection, pursuit of happiness, etc.

Since, as John Adams explained, natural rights were not
to be “repealed or restrained by human laws,” it was therefore—under the
theistic view—the purpose of government to protect the natural rights that had
been bestowed on man by his creator. As James Wilson confirmed, our government
documents were drafted solely . . .

. . . to acquire a new security for the possession
or the recovery of those rights to . . . which we were previously entitled by
the immediate gift or by the unerring law of our all-wise and all-beneficent
creator. [150]

Wilson therefore concluded that “every government which
has not this in view as its principal object is not a government of the
legitimate kind.” [151]
Thomas Jefferson also asserted that government was “to declare and enforce
only our natural rights and duties and to take none of them from us.” [152]
In fact, Jefferson even queried, “can the liberties of a nation be thought
secure when we have removed their only firm basis: a conviction in the minds of
the people that these liberties are of the gift of God?” [153]

American government was built around the belief that
there were inalienable rights that it was the purpose of government to protect,
and those rights were protected so that man was free to enjoy the pursuit of
happiness. As John Quincy Adams explained:

That bestowed as they [natural rights] were by God,
their creator, they [humans] never could be divested of them, even by
themselves, and much less could they be wrested from them by the might of
others. . . . And hence the rights derived from it are declared to be
inalienable. . . . And thus the acknowledgment of the unalienable right of man
to life, liberty, and the pursuit of happiness, is at the same time an
acknowledgment of the omnipotence, the omniscience, and the all-pervading
goodness of God. Man thus endowed is a being of loftier port, of larger
dimensions, of infinitely increased and multiplied powers, and of heavier and
deeper responsibilities than man invested with no such attributes or capacities.
. . . Now the position to which I would invite your earnest and anxious
consideration is this: That the form of government founded upon the principle of
the natural equality of mankind, and of which the unalienable rights of
individual man are the cornerstone, is the form of government best adapted to
the pursuit of happiness as well of every individual as of the community. . . .
and I think I am fully warranted in adding that in proportion as the existing
governments of the earth approximate to or recede from that standard, in the
same proportion is the pursuit of happiness of the community and of every
individual belonging to it, promoted or impeded, accomplished or demolished. [154]

However, under the new Darwinian view, the belief that
there were certain rights of man which were to remain untouched by government
was to change dramatically. In fact, Darwinian legal theorists began to assert
that “[t]he fundamental weakness of conventional legal theory was its attempt
to erect a closed system of immutable principles.” [155]
As Roscoe Pound asserted, “legal principles are not absolute but are relative
to time and place” and “the fiction [of absolutes] should be discarded.” [156]
As he explained, “We are thinking of interests, claims, demands, not of
rights.” [157] (emphasis added)

Since it was thus deemed that there were no natural
rights pertaining to man, then the natural law theory of absolute rights and
wrongs came under attack. Vocal opponents like Justice Oliver Wendell Holmes
“did not just refuse to acknowledge the influence of natural law; he attacked
natural law jurisprudence repeatedly and effectively. . . . His intellectual
activity contributed to the decline of natural law theory in this century.” [158]
With natural law discarded, there was no longer an inviolability for particular
rights.

Perhaps the most perceptible illustration of this change
in the role of government is seen in its approach to human life. As Dr. James
Rachels insightfully observes:

The big issue in all this [Darwinism] is the value
of human life. Darwin’s early readers—his friends as well as his
enemies—worried that if they were to abandon the traditional conception of
humans as exalted beings they could no longer justify the traditional belief in
the value of human life. They were right to see this as a serious problem. The
difficulty is that Darwinism leaves us with fewer resources from which to
construct an account of the value of life. [159]

The consequence is that, according to Rachels, not only
will views toward life vis a vis
abortion change but also a “revised view of such matters as suicide and
euthanasia . . . will result.” [160]

Formerly, a right to life was inalienable because it was
bestowed upon man by a creator who had established that right superior to
intrusion by government. [161]
Currently, however, the right to life, regardless of its stage of development or
age, from conception to advanced seniority, is subject to the discretion of
government. As a result, not only has abortion become acceptable but so has
infanticide. And academicians are now advocating—and logically so—not only
euthanasia but also the termination of those lives considered to be below
“normal.” How are such policy positions reached?

First, it must be accepted that man, rather than a
creator, has the right to determine the outcome of life for humans. Once that
proposition is accepted, then a distinction is made between “humans” and
“persons.” That is, it is asserted that although someone may be human, that
does not mean he is a person—and only persons, rather than humans, should have
a right to life. As a common example, the fact that a human fetus or a human
embryo is acknowledged to be a human is not pertinent to the decision of whether
it should be destroyed, for it clearly is not a “person.”

As Dr. Michael Tooley, professor at Colorado University,
explains, “The fact that a fetus developing inside a human female belongs to
the biological species, Homo Sapiens, is not in itself morally significant. . .
. [and] does not in itself make it wrong to destroy it.” [162]
American University Professor Jeffrey Reiman agrees that being a human does not
automatically guarantee a protection for life because “the assumption that
being a human individual is enough to earn one moral protection of one’s life
smacks of speciesism.” [163]

After accepting that fetuses are not persons and
therefore are not entitled to a right to life, it is next insisted that even
newborns are not persons and therefore they have no guaranteed right to life. As
Dr. Tooley explains:

[T]he empirical evidence makes it most unlikely
that newborn humans are quasi-persons, let alone persons. . . . [A]n entity
cannot be a person unless it possesses, or has previously possessed, the
capacity for thought. And the psychological and neurophysiological evidence
makes it most unlikely that humans, in the first few weeks after birth, possess
this capacity. No attempt was made to determine the precise time at which humans
in general become persons or quasi-persons. I did suggest that in view of a
number of quite significant developments clustering together at around ten to
twelve weeks, it may be that humans become quasi-persons at about that time. [164]

Since a human after its birth is still not a person, it
therefore has no innate or intrinsic value. Princeton’s professor of
bio-ethics, Dr. Peter Singer, explains:

A week-old baby is not a rational and
self-conscious being, and there are many nonhuman animals whose rationality,
self-consciousness, awareness, capacity to feel, and so on, exceed that of a
human baby a week or a month old. If the fetus does not have the same claim to
life as a person, it appears that the newborn baby does not either, and the life
of a newborn baby is of less value to it than the life of a pig, a dog, or a
chimpanzee is to the nonhuman animal. . . . If we can put aside these
emotionally moving but strictly irrelevant aspects of the killing of a baby we
can see that the grounds for not killing persons do not apply to newborn
infants. . . . Killing them, therefore, cannot be equated with killing normal
human beings, or any other self-conscious beings. [165]

Professor Reiman agrees that since infants are not
“persons,” they therefore do not “possess in their own right a property
that makes it wrong to kill them.” Consequently, he argues that there are
“permissible exceptions to the rule against killing infants that will not
apply to the rule against killing adults and children.” [166]

However, even should a human infant eventually acquire
sufficient age to achieve the status of a “person,” if it is a “flawed”
person, then its life still need not be protected. As Singer argues:

Parents may, with good reason, regret that a
disabled child was ever born. In that event the effect that the death of the
child will have on its parents can be a reason for, rather than against, killing
it. . . . [K]illing a disabled infant is not morally equivalent to killing a
person. Very often it is not wrong at all. [167]

Reiman agrees:

I think (as do many philosophers, doctors, and
parents) that ending the lives of severely handicapped newborns will be
acceptable because it does not take from the newborns a life that they yet care
about and because it is arguably compatible with, rather that violative of, our
natural love for infants. [168]

And certainly if it is not wrong to kill a “flawed”
child-person, then neither is it wrong to dispose of a “flawed”
adult-person:

It may still be objected that to replace either a
fetus or a newborn infant is wrong because it suggests to disabled people living
today that their lives are less worth living than the lives of people who are
not disabled. Yet it is surely flying in the face of reality to deny that, on
average, this is so. [169]

And how, then, can the argument be resisted that the
elderly who are becoming senile or who have diminished mental capacities are not
also “flawed” adult-persons? After all, even though they . . .

. . . were once persons capable of choosing to live
or die, but now, through accident or old age, have permanently lost this
capacity. . . . In most respects, these human beings do not differ importantly
from disabled infants. They are not self-conscious, rational, or autonomous, and
so considerations of a right to life or of respecting autonomy do not apply. If
they have no experiences at all, and can never have any again, their lives have
no intrinsic value. [170]

When man can set arbitrary standards for deciding who
lives and who dies by deciding which humans are “persons,” and which persons
are “flawed,” then who might not become a disposable individual?

If the right to life is not inviolable, then neither are
any of the other formerly unalienable rights. Princeton Professor Robert George,
a long-time member of the U. S. Commission on Civil Rights, explains why the
right to life, therefore, must always remain unalienable:

Our most basic rights—including the right to
life—are inherent and in no way contingent on a grant from the state or any
other merely human source. As an inherent right, the right to life, which,
properly specified, is a right not to be killed either as an end in itself or a
means to any other end, comes into being for us when we come into being. It is
not a privilege that we earn by achieving a certain level of consciousness or
intelligence or other ability; it is not something that comes or goes with age,
size, stage of development, or condition of disability or dependency; it is
certainly not something that depends on whether someone else happens to
“want” us or would prefer, all things considered, that we not exist. [171]

Supreme Court Justice Joseph Story explained the danger
in permitting government to disregard or even reject the transcendent,
inalienable rights secured in our documents. Story declared:

There can be no freedom where there is no safety to
property or personal rights. Whenever legislation . . . breaks in upon personal
liberty or compels a surrender of personal privileges, upon any pretext,
plausible or otherwise, it matters little whether it be the act of the many or
the few, of the solitary despot or the assembled multitude; it is still in its
essence tyranny. It matters still less what are the causes of the change; rather
urged on by a spirit of innovation, or popular delusion, or State necessity (as
it is falsely called), it is still power, irresponsible power, against right. [172]

Inalienable rights—the rights derived from that view of
civilization which embraces a belief in theistic origins—were formerly
shielded against the encroachments of civil government with the declaration
enshrined in our documents that “We hold these truths to be self-evident, that
all men . . . are endowed by their creator with certain unalienable rights, that
among these are life, liberty, and the pursuit of happiness. . . . [And] that to
secure these rights, governments are instituted among men.”

Personal Accountability v. Irresistible Biological
Determinism

Under the framers’ theistic approach, it was possible
for man to be morally self-restrained not only because he could conform to the
transcendent values established by his creator but also because he would
ultimately be accountable to his maker for his behavior. As even Darwin himself
had explained, [173]
without man’s knowledge of his own accountability to his creator, he would be
no more responsible for his acts than any other animal:

A man who has no assured and ever present belief in
the existence of a personal God or of a future existence with retribution and
reward, can have for his rule of life, as far as I can see, only to follow those
impulses and instincts which are the strongest or which seem to him the best
ones. A dog acts in this manner. [174]

The founders had previously set forth this principle. As
John Quincy Adams explained:

I have at all times been a sincere believer in the
existence of a supreme creator of the world [and] of an immortal principle
within myself, responsible to that creator for my conduct upon earth. [175]

Very simply, the belief in a creator to whom man was
answerable produced in man a self-restraint and instilled in society an
expectation of individual accountability. However, today it has become an
acceptable thesis in many quarters that not only is man not accountable for his
behavior but also that he is not even responsible for it. In fact, this view is
frequently set forth by defendants in criminal proceedings and is especially
demonstrated through their heavy reliance on The Diagnostic and Statistical
Manual of Mental Disorders (DSM).

The DSM describes itself as providing “a classification
of mental disorders” [176]
that represents the “manifestation of a behavioral, psychological, or
biological dysfunction in the individual.” [177]
The DSM is reflective of what the Michigan Supreme Court describes as “the
medical approach to understanding crime.” [178]
And certainly, if a defendant does have a legitimate mental disorder, then he
should not be held responsible for his crime (this position has long been held
in American law). But how can it be ascertained whether a defendant does have
a “legitimate” mental disorder?

Interestingly, what now constitutes a “legitimate”
DSM “mental disorder” is determined either by the vote of a committee of
psychiatrists or by majority vote of member psychiatrists at a given meeting. [179]
Consequently, the “mental diseases” in the DSM are added, removed, or
modified based on the vacillating opinions of the psychiatric community. [180]

Nevertheless, the DSM has become the authoritative voice
in legal proceedings. In fact, whenever a mental disorder is raised as a
defense, if it is not listed in the DSM, it is not given much credence; and in
States like California, it must be in the DSM to be considered a legitimate
“mental disorder.” [181]
With such a heavy reliance on the DSM, it
is not surprising that a recent Lexus search by the author found the DSM cited
in legal cases on some 1,500 separate instances, usually to explain why
defendants were not responsible for their behavior.

For example,
the DSM was invoked to explain why a defendant should not be guilty . . .

of shooting three victims since he was
suffering from DSM’s “dependent personality disorder” and “recurrent
alcoholic breakouts due to alcohol and substance abuse”; [182]

of shooting his wife because he “was unable
to understand the nature of his acts” since he suffered from DSM’s
“Organic Mood Disorder”; [183]

of first-degree murder since he was suffering
from DSM’s “chronic cocaine use” which leads to DSM’s “anti-social”
and “maladaptive behavior”: [184]

of kidnapping and aggravated assault since he
was suffering from an “anxiety disorder” aggravated by “voluntary
intoxication”; [185]

of eight sexual offenses involving younger
children since he had “a pedophiliac diagnosis, a mental disorder defined in .
. . DSM”; [186]

of misapplying trust property in the amount
of $600,000 since he suffered from DSM’s “compulsive gambling”; [187]

of attempted murder and the use of a handgun
in a crime of violence since he suffered from “Dysthymic Disorder,” a
“mental illness” characterized by a “disturbance of mood” in DSM; [188]

of second-degree forgery since he suffered
from “methadone withdrawal,” an “opioid organic mental disorder” in DSM;
[189]

of murder with malice since he suffered from
“intermittent explosive disorder,” a “major psychiatric illness” in DSM;
[190]

of second-degree murder since he suffered
from “irresistible impulse,” a “borderline personality disorder” in DSM;
[191]

There are seemingly countless other similar examples. In
fact, national columnist John Leo, who has studied such cases, concludes:

[U]ncontrollable forces have been piling up at a
record rate. . . . [W]e have Pete Rose’s disorder (pathological gambling,
312.31 in the Diagnostic and Statistical Manual of Mental Disorders), Marion
Barry’s disease (alcoholism, 303.90), and [Richard] Berendzen’s [president
of American University] impulse (telephone scatologia, 302.90). . . . The dread
disease of caffeinism (305.90, supine dependence on cola or coffee) has already
been cited in a criminal case or two. We have inhalant dependence (304.60,
reliance on aromatic hydrocarbons) and solemn listings for difficulties of
ordinary life (arithmetic and reading problems). . . . Law plus nutrition gives
us many variations of the Twinkie defense (sugar made him kill). Law plus some
dubious psychiatry gives us the promising anabolic-steroid defense. (A
bodybuilder broke into six Maryland homes, set fire to three of them and stole
cash and jewelry. A judge ruled him guilty but not criminally responsible
because his frenzied use of anabolic steroids for weight lifting left him
“suffering from organic personality syndrome.” No jail time.) Law plus the
sociological excuse in disguise offers us the “homosexual panic” defense. (A
man killed a homosexual who made a pass at him in San Francisco, then tried to
argue in court that this violence was an involuntary triggering of sexual
attitudes induced in him by his sheltered, small-town Texas upbringing. . . .) .
. . In Los Angeles, a hacker named Kevin Mittnick copped a plea after being
accused of breaking into a corporate computer system and stealing an expensive
security program. . . . [The judge] saw him as the victim of an insidious Space
Age ailment called computer addiction and sentenced him to a year’s treatment
for this “new and growing” impulse disorder. . . . [W]e are probably in for
a heavy wave of biological determinism. As gene mapping proceeds and the
physiological correlates of behavior are discovered, we will hear even more
arguments about irresistible forces. . . . The problem with all this is that you
can’t run a society, or cope with its problems, if people are not held
accountable for what they do. [192]

Interestingly, in 1920, Princeton Professor Walter Stace
forewarned of the consequences of the “irresistible forces” and
“biological determinism” introduced through Darwinism. As he explained:

If there is really no higher and lower, there is no
better and no worse. It is just as good to be a murderer as to be a saint. Evil
is the same as good. . . . [A]ll these values of higher and lower are mere
delusions, “the human way of looking at things.” [193]

Commager confirms that the effect of Darwinism “could
be traced in the realm of criminal law, where it shifted attention from the
criminal, to the crime, and ultimately to the social background of crime.” [194] Defense attorney Clarence Darrow fully understood this implication of Darwinism, and he consequently consoled the inmates in Chicago’s prison system by explaining to
them that they were merely victims of nature itself. He told them:

There is no such thing as crime as the word is
generally understood. I do not believe there is any sort of distinction between
the real moral condition of the people in and out of jail. One is just as good
as the other. The people here can no more help being here than the people on the
outside can avoid being outside. I do not believe that people are in jail
because they deserve to be. They are in jail simply because they cannot avoid it
on account of circumstances which are entirely beyond their control and for
which they are in no way responsible. [195]

Under the theistic approach, however, man not only was
responsible for his behavior but he also had a duty to treat others consistent
with their own natural rights. As John Quincy Adams explained:

If, then, it be true that man is born with
unalienable rights, among which are life, liberty, and the pursuit of happiness,
it is equally true that he is born under the deepest and most indispensable
duties . . . of exercising, maintaining, and supporting them by all the
faculties, intellectual and physical, with which he has been provided . . . of
holding and enjoying these rights with the inviolate respect and observance of
the same rights in others. [196]

Locke similarly declared:

[F]or men, being all the workmanship of one
omnipotent and infinitely wise maker. . . . ought he, as much as he can, to
preserve the rest of mankind, and may not—unless it be to do justice to an
offender—take away or impair the life, or what tends to the preservation of
life, the liberty, health, limb, or goods of another. [197]

And according to Blackstone:

The creator. . . . has laid down only such laws as
were founded in those relations of justice that existed in the nature of things
antecedent to any positive precept [human law]. These are the eternal, immutable
laws of good and evil, to which . . . He has enabled human reason to discover so
far as they are necessary for the conduct of human actions. Such among others
are these principles: that we should live honestly, should hurt nobody, and
should render to every one his due. [198]

Since man was designed by his creator to “live
honestly, hurt nobody, and render to every one his due,” to not “destroy one
another” but rather to “preserve the rest of mankind,” to not “take away
or impair the life, or what tends to the preservation of life, the liberty,
health, limb, or goods of another” but to “exercise, maintain, and
support” the “life, liberty, and the pursuit of happiness” in ourselves
and in others, man therefore would be responsible to his creator for whether he
had fulfilled the purpose for which he had been designed. As James Wilson
explained:

That our creator has supreme right to prescribe a
law for our conduct, and that we are under the most perfect obligation to obey
that law, are truths established on the clearest and most solid principles. [199]

The belief in irresistible forces that cause individuals
to be powerless over their own cognitive choices is simply another confirmation
that the issue in Scopes was indeed
“a death struggle between two civilizations.”

A Republic v. A Democracy?

One final consequence arising from a rejection of the
belief in theistic origins is literally an altering of our form of government.
That is, our framers, because of their belief in the transcendent values and
inalienable rights derived from theistic origins, established America as a
republic rather than as a democracy. While many today believe that there is no
difference between the two, the framers knew that there was; they specifically
rejected a democracy and deliberately chose a republic. As they explained:

[D]emocracies have ever been spectacles of
turbulence and contention; have ever been found incompatible with personal
security or the rights of property; and have, in general, been as short in their
lives as they have been violent in their deaths. [200]
James Madison

Remember, democracy never lasts long. It soon
wastes, exhausts, and murders itself. There never was a democracy yet that did
not commit suicide. [201]
John Adams

A democracy is a volcano which conceals the fiery
materials of its own destruction. These will produce an eruption and carry
desolation in their way. [202]
The known propensity of a democracy is to licentiousness [excessive license]
which the ambitious call, and ignorant believe to be, liberty. [203]
Fisher Ames, a Framer of the Bill of Rights

We have seen the tumults of democracy terminate . .
. as [it has] everywhere terminated, in despotism. . . . Democracy! savage and
wild. Thou who wouldst bring down the virtuous and wise to thy level of folly
and guilt. [204] Gouverneur Morris,
Signer and Penman of the Constitution

[T]he experience of all former ages had shown that
of all human governments, democracy was the most unstable, fluctuating, and
short-lived. [205] John Quincy Adams

A simple democracy . . . is one of the greatest of
evils. [206] Benjamin Rush, Signer of
the Declaration

In democracy . . . there are commonly tumults and
disorders. . . . Therefore a pure democracy is generally a very bad government.
It is often the most tyrannical government on earth. [207]
Noah Webster, responsible for Article I, Section I, ¶ 8 of the Constitution

Pure democracy cannot subsist long nor be carried
far into the departments of state—it is very subject to caprice and the
madness of popular rage. [208]
John Witherspoon, Signer of the Declaration

It may generally be remarked that the more a
government resembles a pure democracy the more they abound with disorder and
confusion. [209] Zephaniah Swift, author
of America’s first legal text

While few today can define the difference between a
democracy and a republic, the difference rests in the origin of its rights. A
democracy is ruled solely by majority (what the framers described as a
“mobocracy” [210]); a republic is ruled by
law, but not laws built solely on the vacillating whims of the people; rather,
the laws were grounded in the transcendent values and inalienable rights
established by the creator. As explained by several framers:

Human law must rest its authority ultimately upon
the authority of that law which is Divine. [211]
James Wilson, Signer of the Constitution; U. S. Supreme Court Justice

[T]he law . . . dictated by God Himself is, of
course, superior in obligation to any other. It is binding over all the globe,
in all countries, and at all times. No human laws are of any validity if
contrary to this. [212]
Alexander Hamilton, Signer of the Constitution

[The] law established by the Creator, which has
existed from the beginning, extends over the whole globe, is everywhere and at
all times binding upon mankind. . . . and is paramount to all human control. [213]
Rufus King, Signer of the Constitution

The framers understood that transcendent values formed
the basis of a republic, and that the purpose of a republic was to protect
inalienable, natural rights. A democracy, however, based neither on transcendent
values nor inalienable rights, was, as James Madison explained, “incompatible
with personal security” and, according to Fisher Ames, tended toward
licentiousness. [214]

So convinced were the framers of the superiority of a
republic over a democracy that Article IV of the Constitutions requires that
every State maintain a republican—as opposed to a democratic—form of
government. This distinction was another of the specific characteristics of the
nature of American government deliberately established in our governing
documents. To reject the theistic origins of man is literally to reject the
philosophy of inalienable rights upon which our form of government was
constructed and which forms the basis of a republic.

An Organic, Living Document

Even though dramatic societal and governmental upheavals
have been occasioned by the rejection of the theistic view of the origins of man
originally incorporated in our documents, today an argument raised against
continuing those values is that “times have changed” and therefore original
intentions should be modernized. Or, in the language of former Chief-Justice
Earl Warren (1891-1974) in Trop v. Dulles, constitutional interpretation . . .

must draw its meaning from the evolving standards
of decency that mark the progress of a maturing society. [215]

The fact that governments do need to change
(“evolve”) and to incorporate social adjustments (i.e., the ending of
slavery, the granting of suffrage to women, etc.) makes the argument to
“modernize” the governing documents appealing to many. And thus many
followers of Darwin urge the need for the Constitution and other governing
documents to be flexible, living, and organic—to evolve.

Perhaps the first individual successfully to champion
this belief was Christopher Columbus Langdell (1826-1906), dean of the Harvard
Law School. Langdell reasoned that since man evolved, then his laws must also
evolve; and deciding that judges should guide the evolution of the Constitution,
Langdell introduced the case law study method under which students would study
the wording of judges’ decisions rather than the wording of the Constitution.

Under his case-law approach, history, precedent, and even
many of the principles specifically enshrined in the governing documents, were
deemed hindrances to the successful evolution of society. As John Dewey
summarized:

The belief in political fixity, of the sanctity of
some form of state consecrated by the efforts of our fathers and hallowed by
tradition, is one of the stumbling blocks in the way of orderly and directed
change. [216]

Justice Holmes agreed, urging that “the lawyer’s task
. . . was to participate actively in freeing the law from those archaic
doctrines that prevented the law from consciously fulfilling its role of
promoting social policy,” [217] because “the
justification of a law for us cannot be found in the fact that our fathers
always have followed it. It must be found in some help which the law brings
toward reaching a social end.” [218]

Justice Cardozo agreed, declaring:

If there is any law which is back of the
sovereignty of the state, and superior thereto, it is not law in such a sense as
to concern the judge or lawyer, however much it concerns the statesman or the
moralist. [219]

Justice Louis Brandeis (1856-1941) therefore encouraged
the Court to break new ground and lead society in new directions, urging, “If
we would guide by the light of reason, we must let our minds be bold.” [220]

Even though individual Justices and legal educators had
encouraged evolutionary law, it was not until Earl Warren (1891-1974) became
Chief Justice that there was finally a majority of Justices on the Court willing
to embrace that view. One of those Justices (now in the majority) was William
Brennan (1906-1997), champion of what he termed “the evolving understanding of
the Constitution,” “the ‘living’ Constitution,” “the freedom to
reinterpret constitutional language,” “a malleable Constitution,” the
Constitution’s “power of adaptation,” and “the Constitution’s
‘suppleness.’” [221]

Consequently, during Warren’s sixteen year tenure, the
Court became a powerful societal force, striking down numerous long-standing
historical practices while acknowledging that it was doing so without any
previous precedent. [222]
In short, the Court thus publicly affirmed that it had finally arrived at its
fully evolutionary aspiration, no longer bound by history or precedent.

Under this current theory, judges are solely responsible
for the evolution of the Constitution, and it is living and organic according to
their decree. As Justice Cardozo acknowledged, “I take judge-made law as one
of the existing realities of life.” [223]
And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, “We are
under a Constitution, but the Constitution is what the judges say it is.” [224]

Harvard Professor Steven Wise summarizes this radical
revolution in legal theory occasioned by the adoption of Darwin’s principles:

“To understand the strong normative appeal of
evolutionary models, one must first appreciate that American law, like biology
at the time of Darwin, faces the problem of providing a theory of creation which
does not invoke a Supreme Being.” E Donald Elliott, “The Evolutionary
Tradition in Jurisprudence,” 85 Columbia Law Review 38, 91 (1985)
. Elliott,
who believes that the manner in which law is affected by the ideas that it
routinely borrows from other disciplines has been largely unexplored, sets sail
by chronicling how the Darwinian idea of evolution has affected the
jurisprudential work of such legal scholars as Holmes, Wigmore and Corbin. Id.
See also Jan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 Cal. L.
Rev. 343, 362 (1984)
(“Holmes’ The Common Law is first of all an account of
legal change, and its object in this respect is to exhibit the workings of
Darwinian evolution in law”). Evolutionary jurisprudence was often shunned
during the middle half of the twentieth century due to that period’s
association of evolution with Spencer’s racist and reactionary Social
Darwinism. Elliott, at 59, 76. It is shunned no longer. Id. See Roger D.
Masters, Evolutionary Biology, Political Theory and the State, in Law, Biology
& Culture—The Evolution of Law 171 (Margaret Gruter & Paul Bohannon
eds., 1983)
. [225]

Yet, is the fact that the Constitution is now a living,
malleable, evolving document, necessarily bad? After all, society does change
and should not necessarily be bound by decisions made two centuries ago.

Significantly, the framers agreed with this thesis—they
understood that times would change and therefore so should the Constitution.
However, they would have vehemently disagreed with the mechanism by which this
change occurs today.

The framers made clear that when the meaning, and thus
the application, of any part of the Constitution was to be altered, it was to be
at the hands of the people themselves, not at the feet of the judiciary or
through the usurpation of any legislative body. For this reason, Article V was
placed in the Constitution to establish the proper means whereby the people
might “evolve” their government. As Samuel Adams explained:

[T]he people alone have an incontestable,
unalienable, and indefeasible right to institute government and to reform,
alter, or totally change the same when their protection, safety, prosperity, and
happiness require it. And the federal Constitution, according to the mode
prescribed therein, has already undergone such amendments in several parts of it
as from experience has been judged necessary. [226]

George Washington also warned Americans to adhere
strictly to this manner of changing the meaning of the Constitution:

If, in the opinion of the people, the distribution
or the modification of the constitutional powers be in any particular wrong, let
it be corrected by an amendment in the way which the Constitution designates.
But let there be no change by usurpation; for though this in one instance may be
the instrument of good, it is the customary weapon by which free governments are
destroyed. [227]

Alexander Hamilton echoed this warning, declaring:

[The] Constitution is the standard to which we are
to cling. Under its banners, bona fide [without deceit], we must combat our
political foes, rejecting all changes but through the channel itself provides
for amendments. [228]

Already, the people have “evolved” their Constitution
twenty-eight times by abolishing slavery, granting full suffrage without regard
to race or gender, replacing capitation taxes with progressive taxes, imposing
term limits on presidents, reducing the voting age for youth, requiring Congress
to face the electorate before a congressional pay hike can take effect, etc.

It is this method of “evolving” the Constitution set
forth in that document which must be jealously followed. Therefore, if the
belief in theistic origins, transcendent values, unalienable rights, or any
other political doctrine established in our documents, is to change, it must be
done by the people themselves, according to the process established in Article
V. Any other method of change is an abuse of power and a usurpation of the
rights of the people.

The real danger of societal evolution rests, then, not in
the fact that corrections are needed but rather in the fact that those
“corrections” are made by a small, elite, and unaccountable group—and
often by individuals whose personal values do not reflect those of “we the
people.” In fact, in a number of recent cases, the courts have unilaterally
reversed the outcome of direct elections wherein the people clearly expressed
their will. For example:

In Compassion in Dying v. Washington [229]
and in Quill v. Vacco, [230]
courts reversed the results of elections in Washington and New York in which the
citizens had voted to forbid physician-assisted suicides;

In Missouri v. Jenkins, [231]
although citizens voted down a proposed tax-increase, the courts nevertheless
ordered the tax to be levied;

In Yniguez v. Arizona, [232]
the courts reversed the results of the vote by Arizona citizens that English be
the official language of the State;

In LULAC v. Wilson [233]
and Gregorio T. v. Wilson, [234]
the courts suspended the results of the California vote to withhold State-funded
taxpayer services from those who are illegally in the country;

In Carver v. Nixon, [235]
the courts set aside the results of a statewide election wherein Missouri
citizens voted to approve campaign financing reform by setting limits on
candidate contributions by individuals;

In U. S. Term Limits v. Thornton [236]
and Thorsted v. Munro, [237]
the courts overturned the results of elections in which citizens in Arkansas and
Washington had voted to limit the terms of their elected officials; and

In Romer v. Evans, [238]
the courts overturned a constitutional amendment approved by Colorado citizens
to forbid awarding special, rather than just equal, rights to homosexuals.

There are numerous other examples [239]
demonstrating that courts now reject the principle of “the consent of the
governed” originally established in our governing documents and long held to
be a core political doctrine in America. In fact, President George Washington, a
Federalist, had declared:

[T]he fundamental principle of our Constitution . .
. enjoins [requires] that the will of the majority shall prevail. [240]

And President Thomas Jefferson, an Anti-Federalist, had
echoed:

[T]he will of the majority [is] the natural law of
every society [and] is the only sure guardian of the rights of man. Perhaps even
this may sometimes err. But its errors are honest, solitary and short-lived.
[241]

Very simply, the allegedly evolving values of the nation
have not been reflected in the Court’s evolution of the Constitution, the
people have shown no inclination to alter either the view of theistic origins
incorporated in our documents or of the type of civilization that proceeds from
that belief. Until the people make that change, it is judicial tyranny to impose
contrary beliefs on the people. And despite any well-meaning intentions that
might rest behind such efforts, those other means are, as George Washington
explained, “the customary weapon by which free governments are destroyed.”

Allowing the federal judiciary to be the final
authoritative voice in determining what the people “need” not only smacks of
elitism but also places America under what President Thomas Jefferson so aptly
described as “the despotism of an oligarchy.” [242]

Societal Effects of the Paradigm Shift

With the judicial rejection of the theistic view
inculcated in our governing documents, the legal view of the concept of human
uniqueness has changed, as has the legal status of man—his worth, value, and
dignity; the legal concept of transcendent rights and wrongs; the belief in
inalienable rights with the role of government being the protector of man’s
natural rights; the concept of moral accountability; etc. In short, a new
paradigm for American government and culture has been established, and only
those in denial of the obvious can claim that the controversy over evolution is
still only a science debate rather than a civilization debate. Even defenders of
evolution do not make such a naive claim.

For example, Harvard Professor Chauncy Wright (1830-1875)
observed that evolution is applied to “every field of study from biology and
cosmology to sociology and philosophy of history.” [243]
English biologist and zoological Professor Sir Julian Huxley (1887-1975)
(grandson of Sir Thomas Huxley, “Darwin’s bulldog” [244]),
confirms that “subjects like linguistics, social anthropology, and comparative
law and religion, began to be studied from an evolutionary angle, until today we
are enabled to see evolution as a universal and all pervading process.” [245]
Molleen Matsumura, network project director for the National Center for Science
Education (NCSE), similarly attests that Darwinism is now used “to solve
problems in medical research, agriculture, conservation, and. . . . all public
discourse.” [246] Steven Wise agrees,
declaring, “Darwin’s earthquake rumbled not just through science, but
theology, philosophy, sociology, and inevitably, political science and the
law.” As Commager correctly concludes, “Every institution was required to
yield to its [evolution’s] sovereign claims: the church, the state, the
family, property, law; every discipline was forced to adapt itself to its
ineluctable pattern: history; economics, sociology, philology, art, literature,
religion, ethics.” [247]

Based, therefore, on the far-reaching effect of evolution
on every discipline and aspect of society, a work edited in part by Sir Julian
Huxley asserts that, by way of simple definition, evolution properly may be
considered a religion:

A religion is essentially an attitude to the world
as a whole. Thus evolution, for example, may prove as powerful a principle to
co-ordinate men’s beliefs and hopes as God was in the past. [248]

It appears that even the Supreme Court agrees with such a
characterization.

In seeking to extend the provisions of explicitly
theistic language in statutory laws and constitutional documents to include
non-theists, the Court introduced a new standard for defining religion that
would provide “religious” protections to non-theists. Thus, in United v.
Seeger, the Court declared that “the test of belief ‘in a relation to a
Supreme Being’ is whether a given belief that is sincere and meaningful
occupies a place in the life of its [non-theistic] possessor parallel to that
filled by the orthodox belief in God.” [249] The same position
apparently was taken in Welsh v. United States, for as one court of appeals
observed of that case, the “Justices who addressed the constitutional issue
concluded that ‘religion’ should not
be confined to a theistic definition.” [250]

Since for many the belief in non-theistic evolution is
“an attitude to the world as a whole” and is a conviction that “occupies a
place in the life of its possessor parallel to that filled by the orthodox
belief in God,” then non-theistic evolution would certainly seem to qualify as
a “religion” under the Court’s own standard. The choice, then, of which
philosophy will direct American civilization is actually between two
“religious” views: the traditional theistic view embraced by the people or
the non-theistic “religious” view imposed by the courts.

The non-theistic approach rejected in the Scopes trial
but subsequently established through federal court decisions unquestionably
encompasses an approach to American civilization different from that
specified by our governing documents. Yet, what America is, or becomes,
or the civilization she chooses to have, should be the choice of the people not
the edict of the judiciary.

Endnotes

[1]
The World’s Most Famous Court
Trial: Tennessee Evolution Case; A Word for Word Report of the Famous Court
Test of the Tennessee Anti-Evolution Act
, at Dayton, July 10 to 21, 1925
(National Book Co. 1925) [hereinafter World’s Most Famous Court Trial]
(Clarence Darrow, second day of the trial, July 13, 1925).

[2]
World’s Most Famous Court
Trial.

[3]
Id. at 316

[4]
Id.

[5]
Henry Steele Commager, The
American Mind
181-183 (1950).

[6]
Scopes v. State 289 S. W. 363 (Tenn. 1927).

[7]
World’s most famous, supra
at 126.

[8]
Id.at
313.

[9]
Scopes, at 363.

[10]
Id.at 363, 366.

[11]
Id.at 364.

[12]
Id. at 369 (Chambliss, J.
concurring).

[13]
Id. at 366.

[14]
Scopes, at 367.

[15]
Id. at 369 (Chambliss, J.
concurring).

[16]
It has only been in recent years that courts have adopted a different
meaning for “establishment of religion” from that held by the judiciary
for its first century-and-a-half. That is, prior to the mid-twentieth
century, the prohibition against “an establishment of religion” was
interpreted to mean just what James Madison had said it meant during the
debates on the First Amendment—the establishment of a national church. See
1 Kate Mason Rowland, The Life of George
Mason 244 (
New York: G. P.
Putnam’s Sons, 1892); see also 1
Congressional Debates 451
(Joseph Gales, ed., 1834) (James Madison on June 8, 1789);
4 The Debates in the Several
State Conventions on the Adoption of the Federal Constitution

(Jonathan Elliot, 1836) (Governor Samuel Johnston on July 30, 1788);
Joseph
Story, A Familiar Exposition of the Constitution of the United States

259-261, § 441, 444 (New York: Harper & Brothers, 1847); 3
Joseph Story, Commentaries on the Constitution of the United States

728, § 1871 (Boston: Hilliard, Gray, and Company, 1833); Reports
of Committees of the House of Representatives Made During the First Session
of the thirty-third Congress
1-9 (Washington: A. O. P. Nicholson,
1854); and The Reports of Committees
of the Senate of the United States for the Second Session of the
thirty-second Congress, 1852-53
, at
1-4 (Washington: Robert Armstrong, 1853) which further confirm the original
and long-standing meaning of “an establishment of religion.”

[17]
Gregory Sarno and Alan Stephens, Annotation, Constitutionality of Teaching or Suppressing Teaching of Biblical
Creationism or Darwinian Evolution Theory in Public Schools,
102 ALR
Fed
537, 547-548, §6 (1991).

[18]
Judith A. Villarreal, God and Darwin
in the Classroom: The Creation/Evolution Controversy
, 64 Chi.-Kent
L. Rev.
335, 359 (1988).

[19]
Scopes, 289 S. W. at 368 (Chambliss,
J. concurring).

[20]
Id. at 368.

[21]
Id.

[22]
“The Organic Laws of the United States of America” 1 U.S.C.A.
Sec. 1 (West 1987), includes the Articles of Confederation, the Declaration
of Independence, the Constitution, and the Northwest Ordinance.

[23]
Steven M. Wise, How Nonhuman Animals Were Trapped in a Nonexistent Universe, 1 Anml
L
. 15, 42 (1995).

[24]
Bertrand Russell, Human
Knowledge: Its Scope and Limits
33-34 (1948).

[25]
Henry Fairfield Osborn, From
the Greeks to Darwin
1 (1924).

[26]
Id. at
6.

[27]
Edward Clodd, Pioneers
of evolution from thales to huxley
3 (1897, reprinted 1972).


[28]
Dr. Osborne identifies four periods of evolution: i.
Greek Evolution—640 b.c.
to 1600 a.d.;
ii. Modern Evolution—1600-1800
a.d.; iii.
Modern Inductive Evolution—1730-1850
a.d.
; and iv. Modern
Inductive Evolution—1858 to
the present. Henry Fairfield Osborn,
From the Greeks to Darwin
10-11 (1924).


[29]
Id. at
11.


[30]
7 Thomas Paine, A
Discourse at the Society of Theophilanthropists, Paris, in Age of Reason:
Miscellaneous Essays for Third and Fourth Parts
, in
Life and Writings of Thomas Paine
2-8 (Daniel Edwin Wheeler, ed., 1908).


[31]
6 Thomas Paine, Age
of Reason Part Second, January 27, 1794, in Age of Reason: Being an
Investigation of True and Fabulous Theology in Two Parts
, in
Life and Writings of Thomas Paine
132 (Daniel Edwin Wheeler, ed., 1908).

[32]
Scopes, 289 S. W. at 368 (Chambliss,
J. concurring).

[33]
Robert Clark, Darwin: Before
and After, and Examination and Assessment
15 (1958).

[34] John
Dewey, The Influence of Darwin on Philosophy, and Other Essays on
Contemporary Thought
2 (1910).

[35]
While multiple camps will occasionally lay claim to the same writer,
theorist, or scientist, the individuals are listed according to the camp
wherein the majority of writers now place them or in the camp with which
their own writings best comport. For example, while many of the earliest
writers believed in the Greek and Roman gods, they did not believe in a
First Cause as the origin of man; they are therefore placed in the
non-theistic origins camp. Similarly, other writers, such as Goethe and
Bruno, were pantheists, believing that all of nature is god and that nature
therefore created itself—that its origins simply sprang forth without a
First Cause; these writers, too, are consequently placed in the camp of
non-theistic origins.

[36]
James Rachels, Created From
Animals: The Moral Implications of Darwinism
10 (1990).

[37]
Nora Barlow, The Autobiography
of Charles Darwin, 1809-1882
at 92-93 (1958).

[38] John
Dewey, The Influence of Darwin on Philosophy, and Other Essays on
Contemporary Thought
11 (1910).

[39]
Some of the contemporary academics and researchers embracing this
position include Dr. Mike Behe of Lehigh University, Dr. Walter Bradley of
Texas A & M, Dr. Sigrid Hartwig-Scherer of Ludwig-Maximilian University
in Munich, Dr. Phillip Johnson and Dr. Jonathan Wells of the University of
California at Berkeley, Dr. Robert Kaita of Princeton, Dr. Steven Meyer of
Whitworth, Dr. Heinz Oberhummer of Vienna University, Dr. Siegfried Scherer
of the Technical University of Munich, Dr. Jeff Schloss of Westmont, etc.
There are numerous others that, to varying degrees, embrace the anthropic
position, including, Dr. Brandon Carter of Cambridge, Dr. Frank Tipler of
Tulane, Dr. Peter Berticci of Michigan State, Dr. George Gale of University
of Missouri Kansas City, Dr. John Barrow of Sussux University, Dr. John
Leslie of the University of Guelph, Dr. Heinz Pagels of Rockefeller
University, Dr. John Earman of University of Pittsburgh.

[40] James
Rachels, Created From Animals: The Moral Implications of Darwinism
3
(1990).

[41] Id.
at 57-58.

[42] World’s
Most Famous Court Trial
supra note 1, at 83-84.

[43]
Id. at 113 (Malone).

[44]
Henry Fairfield Osborn, From
the Greeks to Darwin
(1924); see also, Peter J. Bowler,
Evolution: The History of an Idea
(1984); Edward Clodd, Pioneers of Evolution From Thales to Huxley
(1897, reprint 1972); Robert Clark,
Darwin: Before and After, and Examination and Assessment
(1958).

[45]
Scopes, 289 S. W. at 369 (Chambliss,
J. concurring).

[46]
Steve Benen, Science Test Church &
State
, July/August 2000.

[47]
David W. Moore, Americans Support Teaching Creationism as Well as Evolution in Public
Schools
, Gallup News Service,
Aug. 30, 1999.

[48]
Stephen Huba, Biblical Version of Creation OK by Americans, Detroit
News
, Apr. 6, 1999 (citing a George Bishop poll, published in The
Public Perspective
, Aug./Sep. 1998).

[49]
David W. Moore, Americans Support Teaching Creationism as Well as Evolution in Public
Schools,
Gallup News Service,
Aug. 30, 1999.

[50] The courts have struck
down as violations of the Constitution’s Establishment Clause: (1) an
Arkansas anti-evolution statute (Epperson v. Arkansas, 1968, 393 U S 97, 21
L Ed 2d 228, 29 S CT. 226), (2) a Mississippi statute prohibiting the
teaching that man ascended from lower life forms (Smith v. State, 1970,
Miss, 242 So 2d 692); (3) the teaching of any view or form of what the
courts call “creationism” (Wright v. Houston ISD, 1972, SD Tex 366 F
Sup. 1208, affd (CA5 Tex) 486 F 2d 137 reh den (CA5 Tex), 487 F 2d 1401, reh
den (CA5 Tex) 489 F 2d 1312, cert. den 417 US 369, 41 L Ed 2d 1140, 94 S Ct.
3173), (4) a statute declaring that teachings regarding the origins of man
must be taught only as theories (Daniel v. Water (1975, CA6 Tenn) 515, F 2d
485, on remand (MD Tenn) 399 F Supp. 510; see
also
Steele v Waters (1975, Tenn) 527 SW2d 72), (5) a statute requiring
“balanced-treatment” between competing views of the origins of man
(McLean v. Arkansas Board of Education (1982), ED Ark) 529 F Supp 1255,
later app (CA8 Ark) 723 F2d 45; see
also
Edwards v. Aguillard (1987) 482 U S 578, 96 L Ed 2d 510, 107 S Ct
2573) and (6) a policy requiring a disclaimer be issued for evolution
textbooks stating that evolution was only one theory of the origins of man (Tangipahoa
Parish Board of Education et al. v. Herb Freiler et al., 975 F. Supp. 819
(D. LA 1997), aff’d 185 F. 3d 337 (5th Cir. 1999, rehearing denied, 201 F.
3d 602 (2000), cert. denied (U. S. June 19, 2000) (No. 99-1625).
Additionally, the courts have held that to discharge a teacher for teaching
evolution was violating the Establishment Clause (Moore v. Garston County
Board of Education (1973, WD NC) 357 F Supp 1037) whereas to discharge a
teacher for teaching creation was protecting the Establishment Clause
(Webster v. New Lenox School Dist. (1989, ND Ill) 1989 US Dist. LEXIS 6091).
Furthermore, to teach evolution, or to use textbooks teaching evolution,
does not violate a creationist’s religious rights (Mozert v. Hawkins
County Board of Education (1987, CA6 Tenn) 827 F2d 1058, 102 ALR Fed 497,
reh den (CA6) 1987 US ap Lexis 13833 and cert. den 484 US 1066, 98 L Ed 2d
993, 108 S Ct 1029).

[51]
McCollum v. Bd. of Educ., 333 U. S. 203, 237 (1948).

[52]
Ry. Co. v. Ellis, 165 U. S. 150, 160 (1897)
.

[53]
See proclamations by George Washington on August 14, 1790; John Adams
on July 22, 1797; Thomas Jefferson on July 16, 1803; James Madison on August
9, 1809; James Monroe on April 28, 1818; John Quincy Adams on March 17, 1827
Andrew Jackson on May 11, 1829, etc. 1-2 James
D. Richardson, A Compilation of the Messages and Papers of the Presidents
1789-1897
(1899).

[54]
8 The Statutes at Large,
Treaties, and Proclamations of the United States of America
31-48
(George P. Sanger, ed., 1866) (thirty-eighth Congress, Session 1, Chapter
37, Section 4, Colorado’s enabling act of March 21, 1864; Chapter 36,
Section 4, Nevada’s enabling act of March 21, 1864; Chapter 59, Section 4,
Nebraska’s enabling act of April 19, 1864). 34 The
Statutes at Large of the United States of America
(1907),
(fifty-ninth Congress, Session 1, Chapter 3335, Section 3, Oklahoma’s
enabling act of June 16, 1906; etc.).

[55] John
Quincy Adams, The Jubilee of the Constitution. A Discourse Delivered at the
Request of the New York Historical Society, in the City of New York, on
Tuesday, the 30th of April 1789,
at 83 (1839).

[56]
World’s Most Famous Court
Trial,
supra note 1, at 170 (William Jennings Bryan quoting Arthur
Garfield Hays).

[57]
Id.
at 198 (General A. Thomas Stewart).

[58]
Id. at 170 (Bryan).

[59]
Id. at 74.

[60]
Peter Singer, Practical Ethics
331 (2d ed. 1993).

[61]
John Dewey, The Influence of
Darwin on Philosophy, and Other Essays on Contemporary Thought
10
(1910).

[62]
Id. at 2.

[63] Henry
Steele Commager, The American Mind: An Interpretation of American Thought
and Character Since the 1880’s,
at
83 (1950).

[64]
Significantly, dictionaries utilize terms like “mode of
thinking,” “morals,” “taste,” and “manners” to define the word
“civilization”; and, as will be subsequently demonstrated, the mode of
thinking, the morals, the taste, and the manners, each would be dramatically
altered according to which view of origins was embraced.

[65] See, for example, George
Washington’s Farewell Address in which, after comparing American
government with that in France and across much of Europe, Washington
reminded Americans that “of all the dispositions and habits which lead to
political prosperity, religion and morality are indispensable supports.” George
Washington, Address of George Washington. President of the United States . .
. Prepatory to his Declination 22-23
(Baltimore: George and Henry S.
Keatinge, 1796) This distinguished constitutional expert declared that
religion was inseparable from America’s governmental philosophy. Other
framers who made similar comparisons between America’s theistic approach
and the non-theistic approaches of other nations such as France included
Gouverneur Morris, (penman and signer of the Constitution) Gouverneur
Morris, An Oration Delivered on Wednesday, June 29, 1814, at the request of
a number of citizens of New York, in Celebration of the Recent Deliverance
of Europe from the Yoke of Military Despotism
(New York: Van Winkle
and Wiley, 1814). Fisher Ames (a framer of the First Amendment and the Bill
of Rights) Fisher Ames, “A Warning Voice,” in The
New-England Palladium (Boston),
April 17, 1804; see
also
VOL. I Works of Fisher Ames 226
(Seth Ames, ed., 1983). Noah Webster, (one of the first to call for a
Constitution Convention and the individual most responsible for Article I,
Section 8, ¶ 8 of the Constitution; etc) Noah
Webster, The Revolution in France, Considered in Respect to its Progress and
Effects
(New York: George Bunce and Co., 1794).

[66]
Critics assert that the framers did not see all life as equal and
they point to slave-holding individuals among the founders as evidence
supporting their charge. This reflects what regrettably, has become a common
approach to the Founding Era: regardless of whether the topic is religion,
morality, racism, wealth, etc., the tendency is to take the exception and
portray it as the rule.

For example, on the slavery issue, while some
framers did own slaves, rarely is anything said of the overwhelming majority
of framers who did not own slaves and who rejected slavery. And rarely is it
acknowledged that slavery was not the product of, nor was it an evil
introduced by, the founders; rather, slavery had been introduced into
America nearly a century-and-a-half before the founders and had been
strongly enforced upon them by British law. In fact, many of the founders
vigorously complained about the fact that every attempt they had made to end
slavery and the slave trade in the Colonies (as Virginia had attempted in
1767 and Pennsylvania in 1774) had been vetoed by King George III.

Prior to the time of the framers, there had been
few serious efforts to dismantle the institution of slavery. John Jay, an
author of the Federalist Papers and the original Chief Justice of the U. S.
Supreme Court, identified the American Revolution as the point at which the
change in national attitude toward slavery first began. 3 John
Jay, The Correspondence and Public Papers of John Jay
342 (Henry P.
Johnston, ed., New York: G.P. Putnam’s Sons, 1891) (letter to the English
Anti-Slavery Society in June 1788) Historically speaking, it was the
founders who collectively initiated the first changes against slavery; and
it was the Declaration that first began that official change.

In
fact, many framers used the occasion of the adoption of the Declaration and
the separation from Great Britain to end slavery in their own States,
including Pennsylvania and Massachusetts in 1780, Massachusetts
Constitution
of 1780, art.
I;
Connecticut and Rhode Island in 1784, act passed in October 1777,
1 The Public Statute Laws of the State
of Connecticut
623-625 (Hartford: Hudson and Goodwin, 1808); and act
of Feb. 27, 1784, Rhode Island Session Laws 7-8 (Providence: Wheeler, 1784); Vermont
in 1786, Vermont Constitution (1786);
Art. I
New Hampshire in 1792, New
Hampshire Constitution (1792); Art. I
New York in 1799, act passed on
March 29, 1799, Laws of the State of
New York, Passed at the twenty-second session, second meeting of the
legislature
721-723 (Albany: Loring Andrews, 1799); and New Jersey in
1804, act passed Feb. 15, 1804, Laws of the State of New Jersey, Complied
and Published Under the Authority of the Legislature 103-105 (Joseph
Bloomfield, ed., Trenton: James J. Wilson, 1811). Additionally, the reason
that Ohio, Indiana, Illinois, Michigan, Wisconsin, and Iowa never permitted
slavery was a Congressional act, authored by Constitution signer Rufus King
1 Rufus King, The Life and Correspondence of Rufus King 288-289 (Charles
King, ed., New York: G. P. Putnam’s Sons, 1894), and signed into law by
President George Washington, An Act to provide for the Government of the
territory North-West of the River Ohio, August 7, 1789, Acts Passed at a
Congress of the United States of America 104 (Hartford: Hudson and Goodwin,
1791) that prohibited slavery in the federally held territories. An
Ordinance for the Government of the Territory of theUnited States Northwest
of the River Ohio, Art. VI, The
Constitutions of the United States
366-367 (Trenton: Moore and Lake,
1813).

Furthermore, rarely is mention made of the fact
that many of the founders were leaders of abolition societies—that
Benjamin Franklin and Benjamin Rush founded America’s first anti-slavery
society in 1774, that John Jay was president of a similar society in New
York, that when signer of the Constitution William Livingston heard of the
New York society, he, as Governor of New Jersey, volunteered to help the
work of that society, etc. Other prominent Founding Fathers who were members
of societies for ending slavery included Richard Bassett, James Madison,
James Monroe, Bushrod Washington, Charles Carroll, William Few, John
Marshall, Richard Stockton, Zephaniah Swift, and many more.

Similarly, nothing is said of the prominent
anti-slavery positions of so many of the founders, including: Charles
Carroll, 2 Kate Mason Rowland, The
Life of Charles Carroll of Carrollton 1737-1832
, at
321 (New York: G. P. Putnam’s Sons, 1898)
(letter to Robert Goodloe Harper, April 23, 1820); John Dickinson, Charles
J. Stille, The Life and Times of John Dickinson
324 (Philadelphia: J.
P. Lippincott Company, 1891) (letter to George Logan on January 30, 1804);
John Jay, 2 John Jay, The Life and
Times of John Jay
174 (William Jay, ed., New York: J. & J.
Harper, 1833) (letter to the Rev. Dr. Richard Price on September 27, 1785);
Richard Henry Lee, the first speech of Richard Henry Lee in the House of
Burgesses of Virginia in 1
Richard Henry Lee, Memoir of the Life of Richard Henry Lee
19
(Richard Henry Lee, ed., Philadelphia: H. C. Carey and I. Lea, 1825);
William Livingston, 5 William
Livingston, The Papers of William Livingston
358 (Carl E. Prince,
ed., 1988) (letter to James Pemberton on October 20, 1788); Luther Martin, Luther
Martin, The Genuine Information
57 (Philadelphia: Eleazor Oswald,
1788). See also 1
The Debates in the Several State Conventions on the Adoption of the Federal
Constitution
377 (Jonathan
Elliot, ed., Washington, D. C.: Jonathan Elliot, 1836) (Luther Martin to
Thomas Cockey Deye on January 27, 1788); George Mason, 3 The
Debates in the Several State Conventions on the Adoption of the Federal
Constitution
452 (Jonathan Elliot, ed., Washington, D. C.: Jonathan
Elliot, 1836) (George Mason, June 15, 1788); Joseph Reed, William
Armor, Lives of the Governors of Pennsylvania
223 (Philadelphia:
James K. Simon, 1872); Benjamin Rush, Benjamin
Rush, Minutes of the Proceedings of a Convention of Delegates from the
Abolition Societies Established in Different Parts of the United States
Assembled at Philadelphia
24 (Philadelphia: Zachariah Poulson, 1794);
Noah Webster, Noah Webster, Effects of
Slavery on Morals and Industry
48 (Hartford: Hudson and Goodwin,
1793); James Wilson, 2 James Wilson,
The Works of the Honorable James Wilson
488 (Bird Wilson, ed.,
Philadelphia: Lorenzo Press, 1804) (Lecture on The Natural Rights of
Individuals); John Witherspoon, 7 John
Witherspoon, The Works of John Witherspoon
81 (Edinburgh: J. Ogle,
1815) (from Lectures on Moral Philosophy, Lecture X) etc.

The simple fact is that there was no substantial
progress in racial civil rights until the Declaration of Independence; and
the work the framers began in the Declaration was carried on for generations
afterwards. In fact, the Declaration was invoked authoritatively by
individuals such as Abraham Lincoln, speech at Lewiston, Illinois on August
17, 1858 in 2 Abraham
Lincoln, The Collected Works of Abraham Lincoln
545-547 (Roy P.
Basler, ed., 1953); Daniel Webster, Address on
the Annexation of Texas
, January 29, 1845, 15 Daniel Webster, Writings and Speeches of Daniel Webster Hitherto
Uncollected Volume Three, Miscellaneous Papers Legal Arguments Early
Addresses, Etc.
in Writings and Speeches of Daniel Webster (1903); and John
Quincy Adams John Quincy Adams, An
Oration Delivered Before The Inhabitants Of The Town Of Newburyport at Their
Request on the sixty-first Anniversary of the Declaration of Independence,
July 4, 1837
, at 50
(Newburyport: Charles Whipple, 1837) in their efforts to end slavery, and
the words set forth by the framers in the Declaration were indispensable in
achieving the passage of the 13th, 14th, and 15th Amendments securing permanent protection
for racial civil rights.

[67]
As Dr. Rachels explains, “In the biblical sources we find not only
the idea that man has dominion over nature but also the contrasting notion
that all of creation is to be revered as God’s handiwork. On this latter
conception, man’s duty is to be a good steward of nature, not its
exploiter.” James Rachels, Created
From Animals: The Moral Implications of Darwinism
91 (1990) As Peter Singer confirms, “Religious ideas of man’s special
role. . . . were interwoven with the newer, more benevolent attitude.
Alexander Pope, for example, opposed the practice of cutting open fully
conscious dogs by arguing that although ‘the inferior creation’ has been
‘submitted to our power’ we are answerable for the ‘mismanagement’
of it.” Peter Singer, Animal Liberation 210-211 (1975) quoting The
Guardian
, May 21, 1713.

Singer
further notes, “It has been claimed that the first legislation protecting
animals from cruelty was enacted by the Massachusetts Bay Colony in 1641.
Section 92 of ‘The Body of Liberties,’ printed in that year, reads:
‘No man shall exercise any Tyranny or Cruelty towards any brute creature
which are usually kept for man’s use’; and the following section
requires a rest period for animals being driven.” Peter
Singer, Animal Liberation
213 (1975). According to Singer, “For a
fuller account, see Emily Leavet,
Animals, and Their Legal Rights
(1970).”

[68] Samuel Pufendorf
(1632-1694) was a Dutch educator and public official. As a professor of law
and nature at universities in Sweden and Germany, his legal writings have
caused him to be titled—along with Hugo Grotius—as one of the two
fathers of international law.

[69]
Alexander Hamilton, The
Farmer Refuted
5 (New York: James Rivington, 1775), reprinted
in
1 Papers of Alexander Hamilton
81, 86 (1961). See also 7 John
Witherspoon, Works of John Witherspoon
152 (Edinburgh: J. Ogle, 1815)
(Lecture XVI, Of Oaths and Vows).

[70]
Baron Samuel de Pufendorf, Of
the Law of Nature and Nations, Eight Books 4
(Basil Kennet, ed.,
London: R. Sare 1717).

[71] Sir
William Blackstone (1723-1780) was a British jurist and political
philosopher. A professor of law at Oxford, his legal writings had a
significant influence on the thinking of America’s framers. In fact,
political science professors have documented that Blackstone was one of the
three most-frequently-invoked political sources (along with John Locke and
Baron Charles Montesquieu) by the framers in their political writings during
the Founding Era (1760-1805). Donald
S. Lutz, The Origins of American Constitutionalism
143 (1988).

[72] Blackstone’s Commentaries
on the Laws of England
(4 vols., 1766-1769) was probably the single most
significant legal writing relied upon by the framers of our documents. In
fact, Thomas Jefferson commented that American lawyers used Blackstone’s
with the same dedication and reverence that Muslims used the Koran. 12 Thomas
Jefferson, The Writings of Thomas Jefferson
392 (1904) (letter to
Governor John Tyler on May 26, 1810). Edmund Burke noted that Blackstone’s
works sold better in America than in England. John
Wingate Thornton, The Pulpit of the American Revolution
xxvii
(Boston: Gould and Lincoln, 1860). Justice James Iredell, appointed to the
Supreme Court by President George Washington, noted that Blackstone’s was
the “manual of almost every student of law in the United States.” James
Iredell’s Charge to the Grand Jury in the Case of Fries [9 Fed. Cas. 826,
no. 5, 126 (C. C. D. Pa. 1799)]. In fact, legal educator Roscoe Pound
confirms that Blackstone’s formed the basis of all legal studies and bar exams until well into the 20th
century. Roscoe Pound, Spirit of the
Common Law
150 (Boston: Marshall Jones Company, 1921).

[73]
2 William Blackstone,
Commentaries on the Laws of England
2-3 (Philadelphia: Robert Bell,
1771).

[74]
John Locke (1632-1704) was a British educator, diplomat, and
political philosopher. He taught at Oxford, and his legal writings were
heavily relied upon by America’s framers, especially in developing the
concepts of social compact and the consent of the governed. In fact,
political science professors have documented that Locke was one of the three
most-frequently-invoked political sources (along with Sir William Blackstone
and Baron Charles Montesquieu) by the framers in their political writings
during the Founding Era (1760-1805). Donald
S. Lutz, The Origins of American Constitutionalism
143 (1988).

[75]
4 John Locke, Works of John
Locke
353-356 (12 ed., London: C. and J. Rivington, 1824).

[76]
John Dewey, The Influence of
Darwin on Philosophy, and Other Essays on Contemporary Thought
9-10
(1910).

[77]
Charles darwin, Charles
Darwin’s Notebooks 1836-1844,
at 300 (1987).

[78]
James Rachels, Created From
Animals: The Moral Implications of Darwinism
1 (1990).

[79]
Id. at
79.

[80]
Henry Steele Commager, The
American Mind: An Interpretation of American Thought and Character Since the
1880’s
at 83 (1950).

[81]
Henry S. Salt, Animals’ Rights Considered in Relation to Social
Progress
8 (New York: Macmillan & Co., 1894).

[82]
Id. at 9.

[83]
Rachels, Created From Animals
1 (1990).

[84]
Margot Norris, Beasts of the
Modern Imagination
3 (1985).

[85]
Peter Singer, Animal Liberation
214 (1975).

[86]
Henry S. Salt, Animals’
Rights Considered in Relation to Social Progress
14-15 (New York:
Macmillan & Co., 1894).

[87]
The Oxford English Dictionary defines “speciesism” as
“discrimination against or exploitation of certain animal species by human
beings, based on an assumption of mankind’s superiority.” Jeffrey
Reiman, Critical Moral Liberalism, Theory and Practice
207 (1997).

[88]
Jeffrey Reiman, Critical Moral
Liberalism, Theory and Practice
207 (1997).

[89]
Peter Singer, Animal Liberation
255 (1975).

[90]
Human-Animal Relationships Research Focus Group, Steve Sapontzis,
abstract from his seminar on “Intellectual Superiority,” California
State University, Hayward, on Feb. 27, 1999.

[91]
Human-Animal Relationships Research Focus Group, Tom Regan, abstract
from his seminar on “Putting People in Their Place,” California State
University, Hayward, on Feb. 27, 1999.

[92]
Marc D. Hauser, Wild Minds:
What Animals Really Think
13 (2000).

[93]
Steven M. Wise, Rattling the
Cage: Toward Legal Rights For Animals
19 (2000).

[94]
Stephen Chapman, Behind the Crusade Against Fur is a Bizarre Agenda, Chicago Tribune,
Dec. 3, 1989. See also, Ingrid
Newkirk confirming this statement on CNN’s “Crossfire” on Aug. 29,
2000.

[95]
Peter Singer, Practical Ethics
150 (2d ed., 1993).

[96]
Statement made by Tom Regan following his speech, “Animal Rights,
Human Wrongs,” given at the University of Wisconsin at Madison on Oct. 27,
1989, during the question and answer session.

[97] Jack L. Albright, Animal
Welfare Issues: A Critical Analysis
, from the Animal Welfare Issues
Compendium: A Collection of 14 Disscussion Papers, Sep. 1997, sponsored by
U. S. Department of Agriculture. See
also
, Given Florio, Animal-Rights Efforts Gaining Legal Clout,” The
Salt Lake Tribune, Dec. 5, 1999.

[98]
Chip Brown, She’s a Portrait of Zealotry In Plastic Shoes,” Washington Post,
Nov. 13, 1983.

[99]
Peter Singer, Animal Liberation
xi (1975).

[100]
Human-Animal Relationships Research Focus Group, Steve Sapontzis,
abstract from his seminar on “Intellectual Superiority,” California
State University, Hayward, on Feb. 27, 1999.

[101]
Peter Singer, Animal Liberation
ix (1975).

[102]
Susan Finsen, Obstacles to Legal Rights for Animals. Can We Get There From Here? 3
Anml L. i, iii (1997).

[103]
Peter Singer, Animal Liberation
215 (1975).

[104]
Gwendellyn Jo Earnshaw, Equity
as a Paradigm for Sustainability: Evolving the Process Toward Interspecies
Equity,
5 Anml L. 113, 122 (1999).

[105]
Steven Wise, Animal Thing to
Animal Person—Thoughts on Time, Place, and Theories
, 5 Anml
L.
61 (1999).

[106]
Id. at,
5 Anml L.
61, 62.

[107]
Id.

[108]
Steven Wise, Animal Thing to Animal Person—Thoughts on Time, Place, and Theories,
5 Anml L. 61 (1999).

[109]
Exec. Order No. 7 (Jan. 28, 1994) (Pardon issued by New Jersey
Governor Christine Todd Whitman).

[110]
Animal Legal Defense Fund Inc. v. Glickman, 332 U.S. App. D.C. 104,
154 F.3d 426 (D.C. Cir. 09/01/1998)

[111]
Citizens to End Animal Suffering and Exploitation, Inc. v. New England
Aquarium, 836 F. Supp. 45, 47-48 (D. Mass. 1993), cited by Steven Wise, Animal
Thing to Animal Person—Thoughts on Time, Place, and Theories
, 5 Anml
L. 61, 65-66 (1999).

[112]
Dana Coleman, How Lawyers Deal With Clients who Bark, The New Jersey Lawyer, Aug. 24, 1998.

[113]
Living on Earth, (NPR radio
broadcast, Mar. 3, 2000).

[114]
Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa, 1996).

[115]
Richard Willing, Under Law, Pets are Becoming Almost Human, USA Today, Sep. 13, 2000.

[116]
Morgan v. Kroupa, 702 A.2d 630, 631 (Vt. 1997).

[117]
Raymond v. Lachmann, 695 N.Y.S.2d 309 (N. Y. App. 1 Dept. 1999).

[118]
Porter v. DiBiasio, 93 F.3d 301 (7th Cir. 1996).

[119]
Jankoski v. Preiser Animal Hospital, Ltd., 510 N.E.2d 1084, 1085 (Ill.App.
1 Dist, 1987); see also Brousseau v. Rosenthal, 443 N.Y.2d 285, (N.Y.City Civ.Ct.
1980).

[120]
La Porte v. Associated Independents, Inc., 163 So.2d 267, 269 (Sup.
Ct. Fla., 1964).

[121]
Bueckner v. Hamel, 886 S.W.2d 368, 377 (Tex.App.—Houston [1st
Dist.] 1994) (Andell, J. concurring).

[122]
Peter Singer, Animal Liberation
214 (1975).

[123]
Gary Dorsey, Animal rights movement spawns new discipline: Animal law, The
Detroit News
, Feb. 29, 2000.

[124]
Human-Animal Relationships Research Focus Group, Tibor R. Machan
“Does Having Interest Mean Having Rights?” Chapman University, on Feb.
27, 1999.

[125]
John Quincy Adams, Letters of
John Quincy Adams to His Son on The Bible and Its Teachings
23
(Auburn: James M. Alden, 1859) (September 15, 1811).

[126]
James Wilson (1742-1798) was a signer of both the Declaration of
Independence and the Constitution—one of only six framers to hold that
distinction. He was the second most active member of the Constitutional
Convention, speaking on the floor of the Convention 168 times, and was
subsequently appointed to the U. S. Supreme Court as an original Justice by
President George Washington. Wilson is credited with starting the first
organized legal training in America for law students and authored several
legal works, including a 1792 Commentary on the Constitution of the United
States of America and a three-volume set of legal lectures delivered to law
students while Wilson was sitting as a Justice on the Court. James Wilson
was a leading figure in the development of American constitutional law and
was, perhaps more than any other individual, responsible for laying the
foundation for a purely American system of jurisprudence.

[127]
1 James Wilson, The Works of
the Honorable James Wilson
113-114 (Bird Wilson, ed., Philadelphia:
Lorenzo Press, 1804).

[128]
1 William Blackstone,
Commentaries on the Laws of England
39, 41 (Philadelphia: Robert
Bell, 1771).

[129]
1 Zephaniah Swift, A System of
the Laws of the State of Connecticut
6-7 (Windham: John Byrne, 1795).

[130]
4 Samuel Adams, Writings of
Samuel Adams
356 (Harry Alonzo Cushing, ed., 1908) (to the
Legislature of Massachusetts on January 17, 1794).

[131]
John Quincy Adams, The Jubilee
of the Constitution
13-14 (New York: Samuel Colman, 1839).

[132]
Noah Webster, An American Dictionary of the English Language

(New York: S. Converse, 1828), s.v. “law,” definitions #3 and #6.

[133]
Baron Charles Secondat de Montesquieu (1689-1755) was a French
elected official (president of the French parliament) and a political
philosopher. He authored numerous essays on law, government, the military,
taxation, economics, etc. His theories of checks and balances and separation
of powers between the branches became an integral part of American
constitutional philosophy. In fact, political science professors have
documented that Montesquieu was the single most-frequently-invoked political
source by the framers in their political writings during the Founding Era
(1760-1805). Donald S. Lutz, The
Origins of American Constitutionalism 143
(1988).

[134]
5 George Bancroft, Bancroft’s
History of the United States
24 (Boston: Little, Brown and Company,
1859). See also 1 Baron
Charles Secondat de Montesquieu, Spirit of Laws
18, ad passim
(Philadelphia: Isaiah Thomas, 1802).

[135]
1 Benjamin Rush, Letters of
Benjamin Rush
454 (L. H. Butterfield, ed., 1951) (to David Ramsay,
March or April 1788).

[136]
Henry Steele Commager, The
American Mind: An Interpretation of American Thought and Character Since the
1880’s,
at 367
(1950).

[137]
James Rachels, Created From Animals:
The Moral Implications of Darwinism
1 (1990).

[138]
David Wigdor, Roscoe Pound
Philosopher of Law
118 (1974).

[139]
Andrew L. Kaufman, Cardozo
206 (1998).

[140]
Moses J. Aronson, Cardozo’s Doctrine of Sociological Jurisprudence, reprinted
from
4 Journal of Social Philosophy 36 (October 1938).

[141]
Roscoe Pound, Spirit of the
Common Law
172 (1921).

[142]
Roscoe Pound, An Introduction
to the Philosophy of Law
31 (1922).

[143]
Oliver Wendell Holmes, Jr., The Common
Law
5 (Boston: Little, Brown and Company, 1881).

[144]
Peter Singer, Animal Liberation
193 (1975).

[145]
Evolutionary psychology is a rapidly growing field with numbers of highly
credentialed academics, including not only those listed above but also
evolutionary psychologists like Dr. Donald Symons of the University of
California at Santa Barbara, Dr. Martin Daly and Dr. Margo Wilson of
McMaster University in Ontario, and numerous others. (See, for example, the
list of contributors in the Handbook of Evolutionary Psychology: Ideas,
Issues, and Applications by Charles Crawford and Dennis Krebs, published by
the Department of Psychology, Simon Fraser University).

[146]
Robert Wright, Our Cheating Hearts: Devotion and betrayal, marriage and divorce: how
evolution shaped human love,
Time
Domestic
, Aug. 15, 1994.

[147]
James Rachels, Created From Animals: The Moral Implications of
Darwinism
221 (1990).

[148]
John Dickinson, Letters from A
Farmer
xlii (1903).

[149]
Boston Gazette
, Aug. 12, 1765; 3 John
Adams, The Works of John Adams
449 (Charles Francis Adams, ed.
Boston: Charles C. Little and James Brown, 1851) (from his Dissertation,
1765).

[150]
2 James Wilson, The Works of

the Honorable James Wilson 454 (Bird Wilson, ed., Philadelphia:
Lorenzo Press, 1804).

[151]
Id. at 466.

[152]
4 Thomas Jefferson, Memoir,
Correspondence, and Miscellanies
278 (Thomas Jefferson Randolph, ed.,
Boston: Gray and Bowen, 1830) (letter to Francis Gilmer on June 7, 1816).

[153]
Thomas Jefferson, Notes on the
State of Virginia
237, Query XVIII (Philadelphia: Mathew Carey,
1794).

[154]
John Quincy Adams, An Oration
Delivered Before the Cincinnati Astronomical Society, On the Occasion of
Laying the Corner Stone of An Astronomical Observatory, On the 10th of
November, 1843
, at 12-15
(Cincinnati: Shepard & Co., 1843).

[155]
David Wigdor, Roscoe Pound
Philosopher of Law
187 (1974).

[156]
Roscoe Pound, Spirit of the
Common Law
172 (1921).

[157]
Henry Steele Commager, The
American Mind: An Interpretation of American Thought and Character Since the
1880’s
, at 378 (1950).

[158]
Michael Hoffheimer, Justice
Holmes and the Natural Law
11 (1992).

[159]
James Rachels, Created From
Animals: The Moral Implications of Darwinism
197 (1990).

[160]
Id. at 5.

[161]
The framers were so convinced that all life came from God that they
even called suicide “self-murder” [see for example, A
Manual of the Laws of North Carolina
(Raleigh: J. Gales, 1814), p.
190, s.v. “suicide”; Thomas
Jefferson, The Jeffersonian Cyclopedia
599 §5585 (John P. Foley,
ed., 1900), s.v., “self-murder”; 1
Richard Watson, Theoological Institutes: On the Evidences, Doctrines,
Morals, and Institutions of Christianity
227 (New York: Carlton and
Porter, 1857); 4 William Blackstone,
Commentaries
188 (“Public Wrongs: Self-Murder”)] since man was
terminating a life that he had not created and that was not his to give or
take. This view was held for centuries, and even millennia, under the
theistic origins approach. As Professor James Rachels documents, “St.
Augustine, whose thought shaped much of our tradition, argued that
‘Christians have no authority for committing suicide in any circumstances
whatever.’ His argument was based mainly on an appeal to authority. The
sixth commandment says ‘Thou shalt not kill.’ Augustine pointed out that
the commandment does not say ‘Thou shalt not kill thy neighbor’; it says
only ‘Thou shalt not kill,’ period. Thus, he argued, the rule applies
with equal force to killing oneself. . . . Kant [said] ‘But as soon as we
examine suicide from the standpoint of religion we immediately see it in its
true light. We have been placed in this world under certain conditions and
for specific purposes. But a suicide opposes the purpose of his Creator; he
arrives in the other world as one who has deserted his post; he must be
looked upon as a rebel against God.’ ” James
Rachels, Created From Animals: The Moral Implications of Darwinism

89-90 (1990). Perhaps Blackstone best summarized the framers overall view
toward life in these words: “If any human law should allow, or enjoin, us
to commit it [the taking of an innocent life], we are bound to transgress
that human law.” 1 William
Blackstone, Commentaries on the Laws of England
43 (Philadelphia:
Robert Bell, 1771).

[162]
Michael Tooley, Abortion and
Infanticide
303-304 (1983).

[163]
Jeffrey Reiman, Critical Moral
Liberalism: Theory and Practice
193 (1997).

[164]
Michael Tooley, Abortion and
Infanticide
421 (1983).

[165]
Peter Singer, Practical Ethics
169-182 (2d ed. 1993).

[166]
Jeffrey Reiman, Critical Moral
Liberalism: Theory and Practice
203 (1997).

[167]
Peter Singer, Practical Ethics
183, 191 (2d ed. 1993).

[168]
Jeffrey Reiman, Critical Moral
Liberalism: Theory and Practice
203 (1997).

[169]
Peter Singer, Practical Ethics
188 (2d ed. 1993).

[170]
Id.
at 191-192.

[171]
Subcommittee on
the Constitution, Committee on the Judiciary, U.S. House of Representatives,
Hearing on H. R. 4292, the Born Alive Infants Protection Act, July 20, 2000,
Testimony of Robert P. George, McCormick Professor of Jurisprudence,
Princeton University.

[172]
Joseph Story, A Discourse
Pronounced Upon the Inauguration of the Author, as Dane Professor of Law in
Harvard University, on the Twenty-fifth day of August, 1829
, at
14 (Boston: Hilliard, Gray, Little, and Wilkins, 1829).

[173]
It is significant that so many of those who today embrace what
Darwinism has become so blatantly ignore what Darwin himself said both on
morality and in support of intelligent design. As Dr. James Rachels, a
Darwin supporter and a professor at the University of Alabama at Birmingham,
observes, “Darwin himself had a good bit to say about morality and
religion. But his remarks on these subjects are often ignored, or treated as
only marginally interesting.” James
Rachels, Created From Animals: The Moral Implications of Darwinism
5
(1990). Ironically, many of Darwin’s own words on morality and religion
are now unacceptable under modern Darwinism.

[174]
Nora Barlow, The Autobiography
of Charles Darwin, 1809-1882,
at 94 (1958).

[175]
John Adams and John Quincy
Adams, The Selected Writings of John and John Quincy Adams 397

(Adrienne Koch and William Peden, eds. 1946) (John Quincy Adams, Diary,
March 19, 1843).

[176]
Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, Text Revision, DSM-IV-TR
at
xxiv (2000).

[177]
Id.
at xxxi.

[178]
People v. Allen, et al., 420 N.W.2d 499 (Mich. 1988).

[179]
People v. Phillips, 175 Cal.Rptr. 703, (Cal. Ct. App. 1981).

[180]
Plough v. State, 725 S.W.2d 494 (Tex. Ct. App. 1987).

[181]
Ioakimedes v. Chambers, 71 Cal. App.3d 277, 357, (Cal. Rptr 1977); see
also
People v. Triplett, 144 Cal. App.3d 283, 192 Cal.Rptr. 537, (1983).

[182]
State v. McCarroll, 1989 WL 155, 215 (Ohio App. 10 Dist.).

[183]
State v. Blasus, 445 N.W.2d 535, (Minn., 1989).

[184]
People v. Bell, 49 778 P.2d 129, (Cal., 1989).

[185]
State v. DeMoss, 770 P.2d 441, (Kan., 1989).

[186]
In re Michael B., 566 A.2d 446, (Con., 1995). See
also
State v. Clements, 734 P.2d 1096, (Kan. 1987).

[187]
In the matter of Harvey Goldberg, 536 A.2d 224, (NJ, 1988).

[188]
Djadi v. State, 528 A.2d 502, (Md. 1987).

[189]
People v. Morino, 743 P.2d 49, (Col. 1987).

[190]
Hicks v. State, 352 S.E.2d 762, (Ga., 1987).

[191]
Godley v. Commonwealth, 343 S.E.2d 368, (Va. 1986).

[192]
John Leo, The it’s-not-my-fault syndrome, U.
S. News and World Report
, Jn. 18, 1990.

[193]
Walter Stace, A Critical
History of Greek Philosophy
310 (1934).

[194]
Henry Steele Commager, The
American Mind: An Interpretation of American Thought and Character Since the
1880’s
, at 380 (1950).

[195]
Clarence S. Darrow, Crime and
Criminals, An Address Delivered to the Prisoners in the Chicago County Jail

5-6 (1907).

[196]
John Quincy Adams, An Oration
Delivered Before the Cincinnati Astronomical Society, On the Occasion of
Laying the Corner Stone of An Astronomical Observatory, On the 10th of
November, 1843
, at 14-15
(Cincinnati: Shepard & Co., 1843).

[197]
4 John Locke, Works of John
Locke
341 (12th ed. London: C. and J. Rivington, 1824).

[198]
1 William Blackstone,
Commentaries on the Laws of England
40 (Philadelphia: Robert Bell,
1771).

[199]
1 James Wilson, The Works of
the Honorable James Wilson
108 (Bird Wilson, ed., Philadelphia:
Lorenzo Press, 1804).

[200]
The Federalist No. 10 (James
Madison).

[201]
6 John Adams, The Works of John
Adams
484 (Charles Francis Adams, ed., Boston: Charles C. Little and
James Brown, 1851) (to John Taylor on April 15, 1814).

[202]
Fisher Ames, Works of Fisher
Ames
24 (Boston: T. B. Wait & Co., 1809) (speech on Biennial
Elections, delivered January, 1788).

[203]
Fisher Ames,
The Dangers of American Liberty
(February 1805), reprinted
in
Works of Fisher Ames 384
(Boston: T. B. Wait & Co., 1809).

[204]
Gouverneur Morris, An Oration
Delivered on Wednesday, June 29, 1814, at the Request of a Number of
Citizens of New-York, in Celebration of the Recent Deliverance of Europe
from the Yoke of Military Despotism
10, 22 (New York: Van Winkle and
Wiley, 1814).

[205]
John Quincy Adams, The Jubilee
of the Constitution
53 (New York: Samuel Colman, 1839).

[206]
1 Benjamin Rush, Letters of
Benjamin Rush
523 (L. H. Butterfield, ed., 1951) (letter to John
Adams on July 21, 1789).

[207]
Noah Webster, The American
Spelling Book
103-104 (Boston: Isaiah Thomas and Ebenezer T. Andrews,
1801).

[208]
7 John Witherspoon, The Works
of John Witherspoon
101 (Edinburgh: J. Ogle, 1815) (Lecture 12 on
Civil Society).

[209]
1 Zephaniah Swift, A System of
the Laws of the State of Connecticut
19 (Windham: John Byrne, 1795).

[210]
see, for example, 1 Benjamin Rush, Letters of Benjamin Rush 498 (L. H.
Butterfield, ed., 1951) (letter to John Adams on January 22, 1789).

[211]
Of the General Principles of Law and
Obligation, reprinted in
1 James
Wilson, The Works of the Honorable James Wilson
104-105 (Bird Wilson,
ed., Philadelphia: Lorenzo Press, 1804).

[212]
1 Alexander Hamilton, The
Papers of Alexander Hamilton
87 (Harold C. Syrett, ed., 1961)
(February 23, 1775), quoting 1 William
Blackstone, Commentaries on the Law of England
41 (Philadelphia:
Robert Bell, 1771).

[213]
6 Rufus King, The Life and
Correspondence of Rufus King
276 (Charles R. King, ed., 1900) (letter
to C. Gore on February 17, 1820).

[214]
Interestingly, the framers often spoke of the French government as a
democracy rather than the republic that the French themselves called their
government. In the minds of the framers, simply titling a government a
republic did not make it so if it lacked transcendent values or immutable
rights or was ruled as a “mobocracy.” As Fisher Ames, a framer of the
Bill of Rights, explained, “[I]t was only in name that she [France] ever
was republican.” Dangerous Power of
France
, No. II in
Fisher Ames, Works of Fisher Ames
323 (Boston: T. B. Wait & Co.,
1809).

[215]
Trop v. Dulles, 356 U. S. 86, 101 (1957).

[216]
John Dewey, The Public and Its
Problems
34 (1927).

[217]
Michael Hoffheimer, Justice
Holmes and the Natural Law
5 (1992).

[218]
Oliver Wendell Holmes, Jr.,
The Law in Science—Science in Law,
reprinted in
Collected Legal
Papers
225 (1920).

[219]
Benjamin Cardozo, The Growth of
the Law
49 (1924).

[220]
New State Ice Company v. Leibmann, 285 U. S. 262, 311 (1932) (Brandies, J.,
dissenting).

[221]
Reason and Passion: Justice
Brennan’s Enduring Influence
18-19 (E. Joshua Rosenkranz and
Bernard Schwartz eds., 1997).

[222]
Abington v. Schempp, 374 U. S. 203, 220-221 (1963).

[223]
Benjamin Cardozo, The Nature of the
Judicial Process
10 (1921).

[224]
Charles Evans Hughes, The
Autobiographical Notes of Charles Evans Hughes
144 (David J. Danelski
and Joseph S. Tulchin, eds., 1973) (speech at Elmira on May 3, 1907).

[225]
Steven M. Wise, How Nonhuman Animals Were Trapped in a Nonexistent Universe, 1 Anml
L
. 15, 41 (1995).

[226]
4 Samuel Adams, The Writings of
Samuel Adams
388 (Harry Alonzo Cushing, ed., 1908) (to the
Legislature of Massachusetts on January 19, 1796).

[227]
George Washington, Address of
George Washington. President of the United States . . . Prepatory to his
Declination
22 (Baltimore: George and Henry S. Keatinge, 1796).

[228]
6 Alexander Hamilton, Works of Alexander Hamilton 542 (John C.
Hamilton, ed., New York: John F. Trow, 1851) (letter to James Bayard on
April, 1802).

[229]
Compassion in Dying v. Washington, No. 94-35534 (9th Cir. 1996).

[230]
Quill v. Vacco, No. 95-7028 (2nd Cir. 1996).

[231]
Missouri v. Jenkins, 58 L.W. 4480 (1990).

[232]
Yniguez v. Arizona, 69 F. 3d 920 (1995).

[233]
League of United Latin American Citizens v. Wilson, 908 F. Supp. 755
(C.D. Cal. 1995).

[234]
Gregorio T. v. Wilson, 59 F. 3d 1002 (1996).

[235]
Carver v. Nixon, 72 F. 3d 633 (8th Cir. 1995).

[236]
U. S. Term Limits v. Thornton, 131 L. Ed. 2d 881 (1995).

[237]
Thorsted v. Munro, 75 F. 3d 454 (1996).

[238]
Romer v. Evans, 64 L.W. 4353 (1996).

[239]
See, for example, Spokane Arcades v. Ray, 449 F. Supp. 1145 (1978);
Lucas v. Colorado Gen. Assembly, 377 U. S. 713 (1964); Citizens Against Rent
Control v. City of Berkeley, 454 U. S. 290 (1981).

[240]
1 James D. Richardson, A Compilation
of the Messages and Papers of the Presidents, 1780-1897
, at
164 (Published by the Authority of Congress, 1899) (from Washington’s
Sixth Annual Address of November 19, 1794).

[241]
Response to the Citizens of Albemarle
on February 12, 1790, 16 Thomas
Jefferson, The Papers of Thomas Jefferson
179 (Julian P. Boyd, ed.,
1961).

[242]
15 Thomas Jefferson, The
Writings of Thomas Jefferson
277 (1904) (letter to William Charles
Jarvis on September 28, 1820).

[243]
Philip P. Wiener, Evolution and the
Founders of Pragmatism
6 (1949).

[244]
Encyclopædia Britannica,
s.v., “Huxley, Thomas Henry.”

[245]
Richard L. Overman, “Comparing Origins Belief and Moral Views,”
presented at the Fourth International Conference on Creationism, Pittsburgh,
Pennsylvania on August 3-8, 1998, (quoting J.
Huxley, Evolution and Genetics: What is Science
272 (1955)).

[246]
Steve Benen, Science Test, Church &
State
, July/August 2000.

[247]
Henry Steele Commager, The
American Mind: An Interpretation of American Thought and Character Since the
1880’s
, at 83 (1950).

[248]
Growth of Ideas: Knowledge,
Thought, Imagination
99 (Sir Julian Huxley, et al, eds., 1965) (Dr. H. G. Judge).

[249]
United States v. Seeger, 300 U. S. 163, 165-166 (1965).

[250]
Malnak v. Yogi, 592 F.2d 197, 205 (3rd Cir., 1979).