{"id":14937,"date":"2011-09-27T19:57:13","date_gmt":"2011-09-28T00:57:13","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=14937"},"modified":"2011-09-28T09:07:11","modified_gmt":"2011-09-28T14:07:11","slug":"evolution-and-the-constitution","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/09\/evolution-and-the-constitution\/","title":{"rendered":"Evolution and the Constitution"},"content":{"rendered":"

\"\"<\/a>Recent news reports\u00a0make\u00a0much of\u00a0the fact that, with one\u00a0exception, none of the current Republican candidates for President has been willing to embrace the theory of evolution <\/a>as the commonly accepted explanation of how the multiple forms of life currently existing on our planet came to be.\u00a0 Instead, several of the Republican hopefuls have argued pointedly that creationism (the belief that all life was created by God in its current form) is an equally legitimate\u00a0scientific theory on a par with evolution.\u00a0\u00a0For example, Texas Governor Rick Perry has declared\u00a0that evolution is \u201cjust one theory\u201d among several that might explain the current state of biodiversity on the earth. Former Utah Governor\u00a0Jon Huntsman is the only Republican candidate willing to take a strong position\u00a0supporting\u00a0the theory of evolution as a scientifically proven fact.<\/p>\n

According to a December, 2010 Gallup Poll<\/a>, a combined 54% of Americans believe that human beings evolved from less advanced life forms, either under God’s guidance or without any participation from God.\u00a0 Meanwhile, 40% of Americans believe that God created human beings in their present form.\u00a0 The survey results also indicate that the relative percentage of Americans who\u00a0believe in some form of evolution (as opposed to creationism) rises as\u00a0education levels rise.<\/p>\n

Why then, do the Republican presidential hopefuls almost uniformly reject a scientific theory that is accepted by the majority of Americans?\u00a0 Why express\u00a0an unnecessary position on an issue unrelated to federal policy\u00a0that runs counter to the beliefs of sixty percent of\u00a0voters with a college degree?\u00a0 Most commentators simply assume that any electoral candidate who\u00a0publicly\u00a0rejects the scientific evidence in favor of\u00a0evolution\u00a0must be pandering\u00a0to the fundamentalist Christians who comprise the\u00a0core\u00a0of the\u00a0Republican base.<\/p>\n

I happen to be\u00a0Catholic, and therefore my faith does not\u00a0compel me to reject\u00a0the theory of evolution<\/a>. Rather than reading the Book of Genesis<\/em> literally, the Catholic Church has expressed\u00a0a\u00a0lukewarm\u00a0acceptance <\/a>of\u00a0evolution, finding nothing objectionable in the idea that\u00a0human life developed from lesser life forms so long as God’s role in the evolutionary process is not denied.\u00a0 Nor do many of the \u201cmainline\u201d Protestant faiths, or people of the the Jewish faith, consider the basic tenets of their religion to be challenged by the theory of evolution.<\/p>\n

However, those Protestant denominations who self-identify as \u201cfundamentalist\u201d have historically taken a strong stand in opposition to the teaching and\/or the endorsement of evolutionary theory by any official government entity. Fundamentalism in the United States began as a reaction to modernist trends in Protestant theology that conceded the human (rather than divine) authorship of the Bible and that\u00a0therefore interpreted the text as a product\u00a0of\u00a0human history\u00a0and culture.\u00a0 Rejecting the modernist approach, fundamentalists defended the biblical text as both historically and scientifically accurate.\u00a0\u00a0While there is a vibrant debate<\/a> over the extent to which fundamentalism necessarily<\/em> requires\u00a0a literal interpretation of the biblical text, those who support\u00a0the teaching of creationism in our schools strongly oppose any official actions by\u00a0our secular government that can be construed to deny\u00a0the legitimacy of a literal reading of Genesis<\/em>.\u00a0\u00a0For these Christians, it is important that\u00a0the government\u00a0either refuse to teach\u00a0evolution as a fact, or else\u00a0accord creationism an equal weight with evolution in the classroom.\u00a0\u00a0The most comprehensive exposition of the\u00a0divergent religious views towards\u00a0the theory of evolution, combined with a\u00a0blow by blow account of the infamous \u201cScopes Monkey Trial<\/a>,\u201d can be found in Edward J. Larson\u2019s excellent book Summer of the Gods: The Scopes Trial and America\u2019s Continuing Debate Over Science and Religion<\/a><\/em>.<\/p>\n

Many of these fundamentalist Christians will vote in the\u00a0Republican primaries.\u00a0 These are the\u00a0primaries\u00a0that the eventual Republican candidate will need to win\u00a0in order to secure the nomination, even if making\u00a0a public overture in support of creationism\u00a0risks\u00a0alienating the moderate and independent voters whose support is needed\u00a0in order to win\u00a0the general election.\u00a0 In fact, some\u00a0commentators have tied Republican skepticism towards evolution to\u00a0a similar skepticism expressed towards the science supporting\u00a0climate change.\u00a0\u00a0Democratic critics have even\u00a0alleged that there is a\u00a0broader Republican “war on science<\/a>.”\u00a0\u00a0Jon Huntsman has warned\u00a0that\u00a0the\u00a0Republican Party risks being perceived as “anti-science” by the electorate.<\/a><\/p>\n

In today’s political environment, however, I disagree with those who believe that\u00a0a Republican candidate’s rejection of the theory of\u00a0evolution will come back to haunt them with\u00a0independent and moderate voters.\u00a0\u00a0In particular, I think that voters who consider themselves to be members of the “Tea Party” movement\u00a0<\/a>may actually\u00a0view a candidate’s\u00a0skepticism about evolution to be a positive attribute, and that this positive reaction will be a constant among Tea Party supporters without regard\u00a0to educational level and religious affiliation.\u00a0\u00a0It turns out that there is an alternative basis, beyond\u00a0religious belief or a mere lack of understanding, that\u00a0explains a\u00a0hostility towards evolution on the part of some voters.\u00a0 For many likely Republican\u00a0voters, the theory of evolution has\u00a0a negative connotation\u00a0because of the manner in which evolutionary theory was used by\u00a0progressives early in the twentieth century to justify an “evolving”\u00a0interpretation of the United States Constitution.<\/p>\n

Henry Steele Commager <\/a>was a longtime Professor of History at Columbia Univeristy and Amherst College.\u00a0 Just as Walter Lippmann <\/a>helped to define liberal thought in the early decades of the twentieth century, Commager was highly influential in the development of\u00a0 modern liberalism in the middle of the twentieth century.\u00a0 Commager’s 1950 book, The American Mind:\u00a0An Interpretation of American Thought and Character Since the 1880s<\/em>, is a tour de force\u00a0<\/em>of intellectual history.\u00a0 However, like Lippmann, Commager’s books are\u00a0rarely\u00a0read today.\u00a0 In fact, most contemporary readers of both men appear to be political conservatives intent on mining the authors’\u00a0criticisms of modern society for insights\u00a0that can be employed, in jiu jitsu<\/em> fashion, in order\u00a0to undermine the authors’ liberal objectives.<\/p>\n

Here is how Commager describes the influence of the theory of evolution on the interpretation of the United States Constitution:<\/p>\n

Evolution gave a scientific foundation to what some of the wisest of the Fathers had known almost intuitively and to what Marshall and Story had from time to time pronounced, but what scholars had forgotten and what the public, so easily contented with political shibboleths had never fully learned — that the Constitution was not static but dynamic.\u00a0 The historical approach [in opposition to Natural Law] . . . explained much heretofore taken as sacrosanct, as a mere accident, or — if that is too deprecatory — as a product of history.\u00a0\u00a0Thus it made clear that the tripartite separation of governmental powers was not something fixed in the cosmic system but a product of two secular considerations: a temporary and perhaps regrettable misconception of the British constitutional system, and a fear of government tyranny.\u00a0 And it suggested that with the passing of these considerations there might well be a readjustment of this mechanical feature of the constitutional system to the realities of politics.\u00a0 It made clear that the profound fear of government\u00a0which inspired the system of checks and balances . . . was not a reflection of natural law but\u00a0of conditions peculiar to a time when the moral of history seemed to be that ‘government, like dress, is the badge of lost innocence.’\u00a0 The conclusion was inescapable that the expansion of government activities was not a violation of the moral code — as it was sometimes assumed to be even in the mid-twentieth century — but a logical shift in the\u00a0use of the Constitution from symbol to instrument, a logical response to the conclusion that government was made\u00a0for man, not man for government.\u00a0 It made clear that the distribution of powers in the federal system was not a revelation of the divine inspiration of the Framers — as Jefferson Davis thought as late as\u00a01881 when he wrote his Rise and Fall of the Confederate States<\/em> — but an outgrowth of experience in the British Empire, and it indicated that\u00a0new experience might justify continuous modifications of that original distribution.<\/p><\/blockquote>\n

(The American Mind<\/em>, at 320-321)<\/p>\n

The belief in evolution, therefore, threatens more than the theological beliefs of fundamentalist denominations.\u00a0 It can be viewed as a threat to the\u00a0Natural Law approach of\u00a0constitutional interpretation and an attempt to unshackle the chains that strict construction of the text place around\u00a0the federal government.<\/p>\n

Commager points to Woodrow Wilson as the key\u00a0political leader who\u00a0incorporated evolutionary theory into political science.\u00a0 He quotes Wilson, who wrote, “Living political constitutions must be Darwinian in structure and practice.”\u00a0 Commager sees a clear link between Wilson and\u00a0the subsequent\u00a0direction of the Democratic Party in the twentieth century:<\/p>\n

And when\u00a0[Wilson] came to analyze Constitutional\u00a0Government in the United States<\/em> he anticipated his even more audacious successor.\u00a0 ‘The Constitution,’ he said, in words that Franklin Roosevelt\u00a0was to echo, ‘is not a mere lawyer’s document; it is a vehicle of life, and its spirit is always the spirit of the age.’\u00a0 It ‘was not meant to hold the government back to the time of horses and wagons, the time when postboys carried every communication . .\u00a0 .\u00a0 The United States have clearly from generation to generation been taking on more and more the characteristics of a community; more and more have their economic interests come to seem common interests.’\u00a0 Notwithstanding his southern inheritance, [Wilson] was ready to acknowledge that a nation had evolved and the Constitution must be read in light of that evolution.\u00a0 As the economy of the nation had become centralized, so must the power of the government to regulate that economy.<\/p><\/blockquote>\n

(The American Mind<\/em>, at 324-325)<\/p>\n

The Progressive Movement in American history adopted this view of the Constitution and attempted to put it into practice.\u00a0 To a certain extent, they succeeded.\u00a0 However, the growing\u00a0acceptance of a “living Constitution” among many jurists in the years after Commager wrote inspired\u00a0an inevitable reaction: the growth of originalism as a competing philosophy of constitutional interpretation.\u00a0 While there are many forms of originalism, in general all “originalists” share the belief that the Constitution should be interpreted through the lens of the original text and intent of the Framers.\u00a0 While originalists concede that accomodations must be made for new technologies, they insist that the original structural boundaries set by the Framers must be maintained unless the text is amended.<\/p>\n

The greatest criticism of the evolutionary approach to reading the Constitution, and the strongest\u00a0argument in favor of originalism, is that by giving the Constitution an evolving meaning\u00a0liberal jurists were\u00a0ignoring the question of consent.\u00a0 If it is correct that “the people” are the ultimate sovereigns in our constitutional system<\/a>, then no alteration in the original design of our government should occur without the consent of the people.\u00a0 While scholars such as Professor Bruce Ackerman <\/a>have tried to finesse questions of consent in connection with an evolving view of the Constitution, advocates of a “living Constitution” continue to struggle\u00a0for a convincing\u00a0answer to\u00a0this criticism.<\/p>\n

In light of the influence\u00a0that the theory of evolution has had on the dynamic interpretation of the Constitution, it is not surprising that the current crop of Republican candidates feel comfortable publicly\u00a0expressing skepticism towards the science of evolution.\u00a0 In addition to placating the religious fundamentalists in the Republican base, a critical attitude towards evolution can also be seen as a signal to the advocates of limited government that the\u00a0candidate stands firmly on the side of\u00a0originalism\u00a0in the constitutional debate over the scope of the\u00a0federal government’s power.<\/p>\n

However, while originalism is currently in ascendance as the predominant form of constitutional interpretation, progressives have not conceded the battle to conservatives.\u00a0 In particular, a\u00a0group of scholars, calling themselves the “new textualists<\/a>,” have challenged conservative jurists to accord the same respect to the Reconstruction Era and Progressive Era textual amendments as they accord to the original constitutional text.\u00a0 After all, the principle of consent requires that alterations to the text via the amendment process must be respected by the judiciary as an expression of the sovereign will of the people.\u00a0 Consent cuts both ways.<\/p>\n

The structural changes intended\u00a0by the Equal Protection Clause of the 14th Amendment should not be evaded through artful grammatical parsing (as practiced, to its discredit, by\u00a0the United States Supreme Court in a series of nineteenth century precedents).\u00a0 In addition,\u00a0the Wisconsin state consitutional provisions protecting public access to government <\/a>(original 1848 text)\u00a0,\u00a0preserving the right to vote (added 1986), and providing for the recall of elected officials\u00a0<\/a>(created 1926 and amended 1981) should not be interpreted away in contravention of\u00a0the intent of the voters who approved those provisions.\u00a0 Textual language\u00a0that was enacted in order\u00a0to implement progressive conceptions of “good government” is entitled to the same respect as\u00a0provisions that embody the political philosophy of the Founding Generation.\u00a0 Judges are not free to pick and choose which portions of\u00a0the constitutional text they will respect.<\/p>\n

As long as it can be amended, a constitution can never be completely static.\u00a0 As much as conservatives may wish to ignore the constitutional reforms of the nineteenth and twentieth centuries, and seek to reconstitute\u00a0the limited role that\u00a0government exercised\u00a0in the colonial era,\u00a0they are not permitted to do so.\u00a0\u00a0Politicians may continue to question\u00a0whether human beings\u00a0are descended from lower forms of life, but no one can deny that our constitutions have evolved since 1789.<\/p>\n","protected":false},"excerpt":{"rendered":"

Recent news reports\u00a0make\u00a0much of\u00a0the fact that, with one\u00a0exception, none of the current Republican candidates for President has been willing to embrace the theory of evolution as the commonly accepted explanation of how the multiple forms of life currently existing on our planet came to be.\u00a0 Instead, several of the Republican hopefuls have argued pointedly that 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