Opderbeck and Dover, Round 2

I’m going to respond to a comment left by David Opderbeck to my previous post.

[David Opderbeck:] Wesley, I have one more post coming, more on theological issues. On the Kitzmiller opinion itself, if you don’t think the “demarcation” question was central to the opinion, you’re just misreading it.


We seem to be at an impasse, then, as it seems to me that we each believe the other is the one having difficulty with reading for comprehension on this point. But I will go you one better and explain why I think so.

I’ve made a living for more than twenty years reading judicial opinions.

That might be relevant if we were at loggerheads over points of law. We aren’t. We are discussing philosophy of science and public policy as it intersects with the practice of law. You are advocating that the judiciary take cognizance of extra-legal considerations in how they formulate decisions. I’m advocating that the judiciary do the complete job that is in front of them and not be bullied for responsibly doing that job. I think that you are mistaken concerning the relevant philosophy of science and that this has led you to advocate erroneous things.

That certainly doesn’t mean I always get it right, but counting the “parts” of the opinion as you’re trying to do here surely isn’t helpful.

Helpful? Please, strive for a bit of objectivity here. You introduced a raw page count as evidence for your argument without even an indication of the total length of the decision to guide the reader as to the proportion of the decision that comprised. The general concept of raw number reporting gets a fair amount of attention in Darrell Huff’s fine book, How to Lie with Statistics.

You have completely failed to address the reasons that one might legitimately expect a lengthy and detailed consideration of those arguments that were put before the court by the defense and the plaintiffs. You have completely failed to address why we should consider an unsupported denial of the defense’s claims to having a secular purpose in “intelligent design” being scientific as responsible behavior in a judge putting together a decision that would perhaps be reviewed at the appellate level. You are making an argument founded on the belief that Jones could have completely excised from the decision his response to the defense’s extensive argumentation that they had a “secular purpose” because they asserted that “intelligent design” was science and the extensive rebuttal of those arguments mounted by the plaintiffs. You have justified none of that belief other than with a false appeal to consequences.

I think that looking at the logical structure of the decision is a better approach to understanding what may reasonably be called “central” to it. Let me explain what I am taking as connotations for “key” and “central” just so we can make sure that we are on the same page in the discussion. A “key” element of the decision would be one that if not addressed appropriately could result in overturning the decision at an appellate level. There are lots of components of the Kitzmiller decision that can be called “key” in that context. A “central” element, though, would be the one that was the primary finding in the decision. The primary finding, though, was that concerning the “endorsement test”, and it rested on four separate considerations of which the “is ID science?” consideration was just one. I think that is far more helpful to the reader looking for orientation than a raw page count.

Moreover, if you’re correct, and the “demarcation” portion of the opinion wasn’t central to the opinion, then it seems to me that you should agree with my ultimate conclusion. After all, central my point is that a relatively lengthy and involved effort to define “science” wasn’t necessary to the establishment clause analysis. When you argue that the “demarcation” portion wasn’t central, and then argue at length about how good and important that part of the opinion was, you contradict yourself.

You are basing your argument upon false premises, that the section of the decision on “Is ID science?” was about demarcation criteria and “effort to define science”. I’ll try once again to explain why this is so. This involves philosophy of science, which is not the primary field of expertise for either of us, but I do have some relevant experience. A demarcation criterion provides a way to tell both if a concept is not science, and also if it is science. That is, a proper demarcation criterion provides both the necessary (ways to tell if something is not science) and the sufficient (ways to tell if something is science) properties that make the difference between science and non-science. The primary problem with all proposed demarcation criteria thus far is that there is no general agreement concerning what might constitute the sufficient properties of scientific concepts. However, one will find that there is general agreement about at least some of the necessary properties of scientific concepts. That puts us in the position of being able to say with good certainty that various and sundry concepts don’t have those necessary properties and thus aren’t candidates to be considered scientific, but not being able to definitively say that any particular concept which may have all the necessary attributes also has the sufficient attributes that would positively make the case for considering it scientific. Because necessary attributes are conjunctive, we don’t have to collect the whole set before we can make use of any of them: failure to meet any of them rules out the concept in question. However, striving to establish a demarcation criterion would require that the Kitzmiller decision took up the problem of what the sufficient attributes might be, and this is conspicuous by its absence from the decision. If such were the case, you could prove me wrong easily enough by quoting a section from the decision that shows such a search for the sufficient attributes. (I’m not going to hold my breath.)

Nor was Judge Jones seeking to create a definition of science, as “effort to define science” seems to imply. Instead, we see him carefully seeking to find and use an existing definition of science that could be argued to already be agreed to by both parties. He noted that the National Academy of Sciences (NAS) was stipulated by both parties as the foremost scientific body in the country and relied upon the definition that the NAS provided. Further, accusing Jones of drafting a new definition of science is ironic given what Jones showed in the decision about the IDC predilection to do that themselves:

[From the decision:] It is notable that defense experts’ own mission, which mirrors that of the IDM itself, is to change the ground rules of science to allow supernatural causation of the natural world, which the Supreme Court in Edwards and the court in McLean correctly recognized as an inherently religious concept. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1267. First, defense expert Professor Fuller agreed that ID aspires to “change the ground rules” of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. (28:26 (Fuller); 21:37-42 (Behe)). Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces. (38:97 (Minnich)).

Nor is it even true that Jones engaged in ‘a relatively lengthy and involved effort to define “science”’, even if we ignore the implication that he was creating such a thing. The 25 pages of “Whether ID is Science” is further subdivided. Jones takes up three issues there, in only the first of which does a definition of science play a major role. Jones begins that three lines from the end of page 64 and has found and related the definition he applies by the middle of page 66. Jones finishes with application of the NAS definition to his first issue by five lines into page 71. Until one gets to the conclusions starting on the last line of page 88, the rest of the section discusses the other two issues about contrived dualism and repudiated negative argumentation against evolution, with the exception of a seven line paragraph on page 82 that references definitions of science. One does have to give some leeway for perceptions, but mine seems diametrically opposite to yours, that Jones’ approach to the first issue, the one involving a definition of science, was concise, efficient, and economical.

I am being completely consistent: Judge Jones had to address the arguments made about “secular purpose” by both parties, and in order to accomplish that, he had to make a determination on the issue placed before the court and argued as a point of law, which was whether “intelligent design” qualified as a scientific concept and therefore provided a secular purpose for the defendants. This analysis was “key” in the sense I gave, that without doing so Jones would have committed an error that could cause an appellate court to overturn the decision. In order to argue that the defense failed in its claim to having a secular purpose, Jones had to rely upon existing agreement upon what necessary attributes of science “intelligent design” did not encompass. This neither is an effort to define science himself nor to resolve the demarcation problem in the philosophy of science. You are simply mistaken in your fixation on this, and I have spent considerable effort to explain why that is the case.

I’m sorry, I see no reason that I should sign on to a conclusion founded on false premises and substantiated only by a logical fallacy.

[David Opderbeck:] In any event, I suspect that when you read my third post in the series (I think it will come up later this week), you’ll agree substantially with it. Our areas of agreement on this, I think, are larger than our areas of disagreement. I think you’re mistaking me for an ID advocate, which I’m not (though I was at one point). Nevertheless, I have some overriding concerns about which governmental institutions should be involved in demarcation questions, as well as concerns about freedom of speech and religious liberty, that give me significant pause about the Kitzimiller opinion and about the nature of the public debate on this issue.

I can certainly get on board with us agreeing on many things… democracy, mom, apple pie, etc. But that doesn’t mean that I should give a pass to plain error being promulgated and disseminated, which is what I still think — and argue — your “primary criticism” of the Kitzmiller decision amounts to.

We may disagree on how those questions factor into the equation, but I hope that provides a basis for conversation, rather than for attack (particularly the sort of ad hominem with which you opened this conversation…).

Argumentum ad hominem does have an actual definition as a logical fallacy. It is where one notes some personal failing on the part of one’s interlocutor and concludes that his argument must fail because of that. Just to be clear, that is not what I finished up my previous post with. Instead, I went from the basis that a number of the arguments made were unfounded, therefore that made for a negative impression of the author. That is no logical fallacy, nor is it even what is casually construed as an ad hominem. You can call me snarky, rude, or impolite, and I’ll shrug and say, “Mea culpa.” But I won’t accept a false accusation of ad hominem argumentation aimed my way.

I admit to being a bit of a prickly fellow myself, and having been perhaps unduly swayed by Ernst Mayr’s approach to argumentation, which tended to the blunt and direct sort of thing. Mayr himself noted this and explained himself as looking to move quickly through thesis, antithesis, and then hopefully to find synthesis somewhere in the outcome. We seem to be stuck at thesis and antithesis at the moment.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Data scientist in real estate and econometrics. Blogger. Speaker. Photographer. Husband. Christian. Activist.

7 thoughts on “Opderbeck and Dover, Round 2

  • 2009/12/01 at 11:59 pm

    Nicely done. I was rather amused that Opderbeck thought he might support his position by claimed expertise in reading legal opinions. I doubt he knows how very familiar many of us, and significantly you are with this particular judicial opinion.

    How many days were you able to observe the trial?

    I was so jealous of you and Nick actually getting to be there. I made due with the daily transcripts. My favorite part started with “Q. Let’s discuss archaeology a little bit more. Matt, if you could pull up Exhibit 722? May I approach, Your Honor?”

  • 2009/12/02 at 4:30 am

    Nick was at the trial throughout the proceedings, and I think all of us back at the NCSE offices were somewhat jealous of Nick. I got to attend the last three days of the proceedings and assist in the out-of-court discussions directly during that time.

    I think that you can be justly proud of leading to one of Michael Behe’s least sterling moments as he adduced support for IDC from science fiction movies.

  • 2009/12/02 at 7:57 am

    Wesley, you are again contradicting yourself, and again missing the point of my first two pieces on Science & Sacred.

    You can’t have it both ways. If you think the demarcation of “science” was “key” in the “sense” of being necessary to evaluate the “secular purpose” of the School Board’s policy, then it was “key.” Key is key. It seems pointless for us to continue arguing about whether the demarcation question was “key” or “central” to the opinion. Obviously, it was, at least for the “sense” that you advance here.

    In this regard, the “appeal proofing” argument really doesn’t work, for three reasons.

    First, as you admit above, the “science” demarcation part of the opinion does some “key” work under the Judge’s construction of the establishment clause issue. This is clearly more than appeal proofing.

    Second, federal judges in particular have significant control over what issues get tried. The Judge could have excised much of the material relating to the “science” demarcation issue at various stages of the pretrial proceedings, but didn’t … because he apparently believed it was key to the proceedings. You seem to think that a Judge must passively hear and decide everything the parties throw at him or her, but that simply is not the case.

    Third, even when a trial court allows evidence at trial on an issue, the court is not compelled to deal with it at length in a written opinion. It is not reversible error in itself to do this. Many, many, many times I’ve seen courts slap down with the back of a hand arguments made at length by the parties, without any negative repercussions on appeal. The briefer statement I offered in my Science & Sacred post, in fact, would have served this purpose (and the appeal proofing purpose) well.

    Now, as to the central point of my Science & Sacred piece: my primary concern is about which institutions in our society should make demarcation decisions, and for which purposes. Courts have to make demarcation decisions about “science” for evidentiary purposes (the Daubert standard), but that it is a narrow purpose tailored specifically to the unique role courts play. Broader demarcation decisions should be left to other institutions and to broader public debate.

    On this last point, I’d suggest you check out some of the resources on science and the law that I list in my Science & Sacred post, none of which have anything specifically to do with ID. The literature on this is legion, there are numerous areas of public policy that it intersects, and it is by no means confined to reactionary claims of “judicial activism.” It seems to me that a narrow focus on the ID question is crabbing your understanding of the broader policy issues at play.

  • 2009/12/02 at 10:09 am

    Mr. Opderbeck:

    The plaintiffs alleged that teaching ID in a science class violated the 1st amendment of the Constitution. Their argument was that ID is both religious and not science. Specifically that ID is creationism relabeled*. That ID has no secular purpose in the science classroom – because it isn’t science. And that allowing ID to be taught would have the effect of promoting a specific religion (i.e. sectarian).

    The defense alleged that ID WAS science, wasn’t creationism, served a solely secular purpose (because it is science therefore is appropriate in a science curriculum)

    IANAL but could you tell me HOW the judge could rule either way without:
    1) addressing if ID was religious or not (by applying the “Lemon test”)
    2) addressing if ID is science or not (which requires a definition of what is/is not science relative to THIS ruling)
    3) noting that under the accepted definition of science – science and the supernatural are mutually exclusive

    It seems that your assertion is that Judge Jones did not need to define science in order to rule if ID is or is not science, I am not convinced by your arguments – If I assert that “Cyan is not red – it is blue” how can one determine if my assertion is true unless we agree on what is “red”, “blue” and “cyan”?

    *creationism had already been disallowed is public school science curricula by rulings of the SCOTUS because teaching creationism endorses religion/ specific sectarian religious concept).

  • 2009/12/03 at 6:51 am

    Professor Opderbeck is ignoring the fact that the evidence on whether or not ID is science was relevant to the issues in the case, on the question of \”secular purpose.\” Yes, he could have ruled at the outset that he was only going to consider certain prongs of the Lemon test and only reach the others if those were not dispositive but, other than by forecasting the outcome (itself a dangerous thing for a judge to do) why should he do that and risk having to then schedule another trial? Nor is their any reason to simply dismiss ID as pseudoscience in one line, as he suggests, other than to protect the feelings of ID proponents. It is equally appropriate to discuss the evidence and his reasoning at length.

    He is also ignoring the fact that the judge (as is the case with a Daubert determination) treated the question of whether ID is science as a factual question based on the testimony before him (\”Expert testimomy reveals …\”, p.64, for example). As with a Daubert determination, ID advocates are, in an appropriate case, free to come back and try again to show that ID is science. Therefore, Judge Jones was not \”demarking\” science, he was giving his findings based on the evidence presented, always an appropriate thing for a judge to do.

  • 2009/12/06 at 9:38 pm

    David Opderbeck,

    ID theorists always have the option of doing real science and presenting it to scientists, and being open to their review; that would be the honest, “straight and narrow” way of getting ID taught in the public schools.

  • 2009/12/09 at 9:19 am

    Re John Pieret

    What Mr. Opderbeck also ignores is the fact that both sides in the case requested that he rule on whether ID was science. Judge Jones has made that clear in several presentations he has given since the trial. When both sides in a legal dispute request that the judge make a ruling on a particular legal point, the judge usually does so.

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