Science versus Religion in American Law


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By Dr. Steven Goldberg
Professor Emeritus of Sociology
City College of New York

Introduction

The power of organized religion has waxed and waned dramatically throughout human history. In many preindustrial societies, the church provided not only answers to what we think of today as scientific questions, but strict guidance to political leaders as well—religion “once could define secular laws in usury, regulate the conditions of production in the guilds, and prohibit what today are normal business and commercial practices.… [M]onarchs were brought cringing to religious shrines and matters of personal morality were effectively dictated by pontifical power.”[1] In the twentieth-century Soviet Union, by contrast, religion was repressed in the name of an all-encompassing “scientific” view of government and morality.[2]

The Framers’ Conception of Religion and Science

An example of a French salon, by Anicet Charles Gabriel Lemonnier, 1812 / Musée national du Château de Malmaison, Paris

From the beginning, America has had a more nuanced relationship between church and state in general, and church and science in particular. The framers of the Constitution, as we have seen, cherished the Enlightenment ideal that science could illuminate everything from chemical reactions to political theory. But the framers were also descendants of people who had come to America in large part seeking religious freedom. The growth of modern science in the eighteenth century did not require the framers to uniformly reject religion:

Religious belief in the New World was by no means repressed by scientific progress as it was in the Old. On the contrary, there emerged an American symbiosis of rationalism and Christianity, technological progress and moral challenge.… Franklin, Jefferson, Rush and Priestly all espoused a rationalistic conception of progress, but, unlike Paine, they found that science and reason did not require them to reject completely their Christian heritage. Rather, Christianity supplied them with a comfortable ethical system whose telic projections could be made entirely harmonious with the methods and conclusions of science.[3]

The original relationship between science and religion in America turned in part on the American infatuation with progress. Scholars still debate whether the belief in human progress was known in ancient Greece and Rome, or whether, facilitated by Christianity’s linear conception of history, it began in the Middle Ages.[4] There is wide consensus, however, that the idea of progress was dominant among eighteenth-century Enlightenment thinkers.[5] We have already noted the optimism, fueled by Newton’s discoveries, that improvement, perhaps perfection, was attainable in all human endeavors.

This notion of progress was particularly strong in America. The people who came to live in the New World often saw themselves as replacing the corrupt institutions of the Old World with a more perfect order.[6] The very acts of creating a nation and writing its Constitution were a kind of “applied Enlightenment.”[7]

The Enlightenment origins of the U.S. Constitution reflected and reinforced a particular balance between religion and science. To many of the framers, dogmatic, authoritarian religion, as opposed to a more enlightened deism, was a threat to the idea of progress they held dear. Their views shaped the nonestablishment and free exercise of religion clauses of the Constitution, clauses that have a continuing impact on the relationship between American science and religion.

The First Amendment’s requirement that “Congress shall make no law respecting an establishment of religion” was designed for many purposes, some of them conflicting. Certain of the framers, for example, wanted to forbid Congress from establishing religion in order to maintain state establishments they favored.[8] In this century, however, the Supreme Court has interpreted the nonestablishment clause in light of the purposes of Jefferson and Madison, as reflected in their battles to forbid established religion of any kind in Virginia.[9] Moreover, the Court, beginning in 1947, applied the nonestablishment clause to state as well as federal government.[10]

A religion-science skirmish in colonial America gives us a taste of the Enlightenment views that characterized Jefferson and Madison’s approach to nonestablishment.[11] After the Boston earthquake of 1755, the Reverend Thomas Prince’s sermon, “Earthquakes the Works of God and Tokens of his Just Displeasure,” suggested that Ben Franklin’s lightning rods might have brought on the earthquake. Prince concluded, “O! there is no getting out of the mighty Hand of God! If we think to avoid it in the Air, we cannot in the Earth.”[12]

Harvard professor John Winthrop, a leading Newtonian, immediately published a powerful scientific rejoinder that was widely believed to have made Prince appear ridiculous.[13] Winthrop’s response, as well as his writings on comets a few years later, attacked clergy who fostered fear rather than understanding of natural phenomena, and emphasized the consistency of Winthrop’s own belief in God with an understanding of Newtonian mechanics.[14] Winthrop’s attitude exemplified an important strand of Enlightenment thinking: a combination of attacks on “superstitious” clergy with support for scientific speculation.[15] Leading American scientists joined Winthrop in condemning the “priestcraft” that controlled men’s minds.[16] The goal of these scientists was not atheism, but rather a faith illuminated by natural philosophy.[17]

The Virginia supporters of the nonestablishment clause shared Winthrop’s approach. They wanted to prevent the suppression of enlightened science by the church. Thus, in his “Memorial and Remonstrance Against Religious Assessments,” Madison argued that fifteen centuries of establishment Christianity resulted in “superstition” on the part of clergy and laity alike.[18] The centerpiece of Jefferson’s attack on established religion in Notes on the State of Virginia was a pointed history of science and religion: “Galileo was sent to the Inquisition for affirming that the earth was a sphere; the government had declared it to be as flat as a trencher, and Galileo was obliged to abjure his error. This error, however, at length prevailed, [and] the earth became a globe.”[190]

Jefferson was not alone in citing the martyrdom of Galileo. Milton, the leading influence on colonial ideas of free speech,[20] was influenced greatly by a visit he made to the exiled scientist.[21] The Areopagitica, a basic source to this day on the evils of licensing speech,[22] describes Milton’s trip to Italy where he “found and visited the famous Galileo, grown old, a prisoner to the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.”[23]

Thus the Jeffersonian wall between church and state was designed in part to protect American Galileos. In this respect, the free exercise and establishment clauses are complementary; the constitutional requirement that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”[24] both protects and enhances science. Whereas some religions may rely on dogma to the detriment of science, others believe scientific inquiry enhances God’s glory.[25] Thus nonestablishment combined with free exercise encourages people like Winthrop to pursue their researches. Throughout American history, the religious tolerance built into the First Amendment has bolstered American science. American Quakers, for example, whose faith encourages scientific endeavor, made major contributions to American science beginning in the eighteenth century, and in this century, American tolerance of Judaism led to an influx of Jewish scientists, particularly from Germany.[26]

The Modern Dispute over the Theory of Evolution

Photo of Charles Darwin / Public Domain

The establishment clause has played a decisive role in the twentieth-century successor to the dispute between Galileo and the church. Just as astronomy displaced human beings from the center of the universe, the theory of evolution displaced human beings from their special status among the earth’s inhabitants.[27] In the case of evolution, the establishment clause resolved the resulting religion-science dispute in favor of science.

The theory that humans evolved from other primates need not, in the abstract, pose a challenge to one’s spiritual beliefs. For example, Darwinism was readily absorbed when it was introduced in Japan in the late nineteenth century. The reason was not that Japanese society was more advanced scientifically; indeed, Japan had much less of a scientific community at that time than did Europe or America.[28] As Edwin Reischauer pointed out, evolution did not cause popular protest because of the nature of the dominant Japanese belief systems:

Because of Shinto ideas, there were no clear lines between natural objects, such as rocks, trees, waterfalls, and mountains, and living creatures of all sorts, vegetable or animal, and humans, or between humans and gods. Buddhism had also brought the idea that the quality of one’s present life might bring rebirth as a superior being or as an inferior one, like a bug or a worm. No one recoiled at the idea that humans could be descended from less advanced animal forms. In fact, Darwinism proved a support to the acceptance of Western science.[29]

But when Darwin’s theories emerged in nineteenth-century America they presented an enormous shock to many Christians, and for some that shock remains.[30] The shock stems from specific religious teachings. In the Bible people are created separately from other creatures and are given a role and a set of capabilities that set them apart from all others. The Darwinian notion that people are animals is a fundamental challenge to that entire structure. This is not simply an instance where a biblical account appears at odds with modern science. It is to many a threat to the very idea of transcendent morality.

The clash between evolution and science first came to the American courts in the Scopes trial. The trial verdict was mixed. In 1925, John Thomas Scopes was convicted by a jury of violating a Tennessee statute that made it unlawful “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.”[31] At the time of Scopes’s trial and appeal the U.S. Supreme Court had not yet ruled that the nonestablishment clause of the First Amendment applied to actions of the state, as opposed to federal, government.[32] Thus Scopes’s appeal to the Tennessee Supreme Court was severely constrained. And the Tennessee Supreme Court found that the anti-evolution law was within the power of the Tennessee legislature.[33]

But the process orientation of the legal system enables courts to reach compromises, a power of particular importance in highly charged and divisive cases. The Scopes trial, with Clarence Darrow for the defense and William Jennings Bryan for the State, had elicited enormous public attention, much of it consisting of negative publicity directed at the “fundamentalist” supporters of “monkey bills” like the one in Tennessee.[34] Even Christian magazines expressed concern about Bryan’s literalist approach to the Bible.[35]

Under the circumstances, the Tennessee Supreme Court seemed reluctant to affirm the Scopes conviction. They seized on the fact that, after the jury verdict, the trial judge had imposed a fine of $100, the minimum amount allowed under the statute.[36] Now it might seem unlikely that Scopes was prejudiced by having been given the lightest possible punishment. But the Court noted that under the Constitution of Tennessee, a fine in excess of $50 must be assessed by a jury, and the Court declined to rectify this problem in any way—it simply said that the judgment against Scopes had to be reversed because a judge, not a jury, had imposed the fine.[37] The Court then went on to note that “the peace and dignity of the state” would be best served if the prosecution of Scopes were dropped so that “this bizarre case” could be ended.[38] And indeed, the case ended at that point.

The evolution controversy did not come before the U.S. Supreme Court until Epperson v. Arkansas,[39] a 1968 challenge to the constitutionality of an Arkansas statute prohibiting the teaching of evolution.[40] By this time, the nonestablishment clause had been applied to the states, and in this case the Jeffersonian and Madisonian view of that clause carried the day. In other words, the challenge to the Arkansas law was successful because the case was seen as a dispute between religion and science.

An amicus brief in Epperson demonstrated to the Court that science was in fact at stake by including a statement signed by 179 biologists asserting that evolution “is firmly established even as the rotundity of the earth is firmly established.”[41] Another brief for the opponents of the statute, in a passage with roots in the eighteenth century, argued that the uninformed use “all forms of physical and mental torture, to maintain the status quo of their unenlightenment and their accepted beliefs.”[42] During oral argument, counsel for the State was asked, “What if Arkansas would forbid the theory that the world is round?”[43] And the Court’s opinion, in striking down the statute under the establishment clause, featured excerpts from arguments against fundamentalist religion generally.[44]

Commentary on Epperson has tended to focus on the doctrinal point that the Court found the statute unconstitutional because it had been enacted for a religious purpose.[45] But the Court’s proof of an illegal purpose consisted merely of citation to newspaper advertisements, letters to the editor, and law review articles.[46] No statement of any legislator was included. In other cases where a religious purpose seems likely, the Court has declined to find one or even to look very hard.[47] Academic emphasis on purpose or motive in the usual sense is misplaced here. The Court’s scrutiny of the statute was more intense than in the usual establishment case because the competing value at stake was science. Indeed, the Court said as much: “The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment.”[48] The Arkansas statute’s improper purpose was not to aid religion, but rather to aid religion at the expense of science.

The Supreme Court believed in Epperson that what it called the “monkey” law might be a curiosity from an earlier era, noting that, apart from Arkansas, only Mississippi had an anti-evolution statute on its books.[49] In 1970 the Mississippi law was struck down on the authority of Epperson.[50] But, contrary to the Court’s belief, the subject of the teaching of evolution in the public schools has remained a lively one. The fundamental challenge Darwin poses to the beliefs of many Americans cannot easily be put to rest.

Thus litigation has continued as anti-evolutionists try new techniques. But nothing they try can shake the dominance of the scientific world view in this legal arena. In 1975, the U.S. Court of Appeals for the Sixth Circuit struck down a Tennessee statute requiring that the teaching of evolution in public schools be accompanied both by a disclaimer that it is “theory” not “scientific fact,” and by an explanation of the Genesis account in the Bible without such disclaimer.[51] The court held that putting science at this disadvantage compared to religion was, under Epperson, a violation of the establishment clause.[52]

Epperson was also applied in a 1973 North Carolina case involving a substitute teacher who was asked by a student if he believed man descended from monkeys.[53] The teacher said yes, challenged some other biblical stories as unscientific, and was fired the next day when students complained.[54] The district court held in favor of the teacher on various grounds, including the establishment clause.[55] The court’s opinion traced the persecution of Galileo and the contributions of Newton, and concluded that the “United States Constitution was drafted after these and similar events had occurred, but not so long after that they had been forgotten.”[56]

Creationism in the Courts

Susan Epperson, the plaintiff who won the Supreme Court case Epperson v. Arkansas / Wikimedia Commons

The most recent attack on evolution has come from creationism—the movement arguing that there is scientific evidence that the creation account in the Book of Genesis is accurate.[57]

The first thing to say about creationism is that its very existence is an extraordinary demonstration of the role of science in American society. The notion that a religious account of reality depends upon scientific verification would come as a shock to many in other cultures and in other times. It is not at all clear that revelation or faith must be subordinate to empiricism. But in America today some fundamentalists have either come to believe—or have been driven to assert—that scientific support for Genesis is of central importance. These creationists have then brought about the passage of legislation requiring that “creation science” be taught along with evolution in the public schools.

But calling something creation “science” does not make it so from the point of view of the scientific community or the courts. The traditional scientific community rallied against creationism,[58] emphasizing that it really was not a scientific theory because it did not admit the possibility that Genesis was wrong. The courts were then confronted once again with lawsuits pitting science against religion, and they ruled once again for science. The process began when a federal district court held in McLean v. Arkansas, 529 F. Supp. 1255 (E.D. Ark. 1982), that an Arkansas statute mandating that creationism be taught along with evolution was an unconstitutional establishment of religion. The matter reached the U.S. Supreme Court in the 1987 case of Edwards v. Aguillard.[59]

Edwards involved a carefully drafted statute—the Louisiana “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act. This act forbade the teaching of evolution in public schools unless accompanied by the teaching of “creation science,” which was defined as the “scientific evidences for [creation] and inferences from those scientific evidences.”[60] No school was required to teach evolution or creation science, but if either was taught the other had to be taught as well.

The traditional scientific community urged the Court to reject the notion that “creation science” was anything other than religion. Briefs opposing the Louisiana law were filed by, among others, a group of 72 Nobel Laureates in science, and by the National Academy of Sciences. And the majority of the Supreme Court, citing a survey of Louisiana school superintendents, rejected the state’s claim that “creationism” was just another scientific theory and concluded instead that it was a religious doctrine characterized by “the literal interpretation of the Book of Genesis.”[61] In the end, the Supreme Court struck down the Louisiana law as an establishment of religion because they looked, as they had in Epperson, to the state’s purpose and found an improper religious infringement on science:

In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects. As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator.… Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.[62]

The blow to some religious Americans inflicted by the Edwards case is considerable, but it is an unavoidable consequence of the constitutional status of American science and religion. Even Stephen Carter, who has argued eloquently that American elites wrongly trivialize religion, concedes that “Edwards v. Aguillard is correctly, if perhaps tragically decided. The decision is correct because of the difficulty of articulating the precise secular purpose for the teaching of creationism: even if dressed up in scientific jargon, it is, at heart, an explanation for the origin of life that is dictated solely by religion.”[63]

It is impossible to understand Epperson, Edwards, and the other evolution cases as simply dealing with the establishment of religion. Consider, by comparison, application of the establishment clause to state laws that criminalize homosexual behavior. These laws, like anti-evolution laws, are religious in origin. They derive directly from specific biblical passages,[64] and the offense in question was defined traditionally as “the abominable sin not fit to be named among Christians.”[65] Furthermore, anti-sodomy laws cannot easily be analogized for constitutional purposes to other criminal laws, like those against murder, which have religious roots but have taken on a secular purpose.[66] Unlike the laws against murder, laws against homosexuality are retained in part because of religious pressure,[67] and many homosexual crimes affect only consenting adults.[68]

Yet establishment clause challenges to the laws against homosexual behavior have failed uniformly.[69] Moreover, in decisions involving homosexuality, courts often go out of their way to rely on the biblical origins of the laws. Thus in Doe v. Commonwealth[70] a three-judge federal court upheld Virginia’s right to prohibit private, consensual homosexual acts between adults. The court found that “the longevity of the Virginia Statute does testify to the State’s interest and its legitimacy. It is not an upstart notion; it has ancestry going back to Judaic and Christian law.” The court then cited Leviticus 18:22: “Thou shalt not lie with mankind, as with womankind: it is abomination.”[71] Similarly, when the U.S. Supreme Court upheld a Georgia sodomy statute, Chief Justice Burger’s concurrence stressed that “condemnation of [sodomy] is firmly rooted in Judaeo-Christian moral and ethical standards.”[72]

Religion is thus deeply involved with our views about homosexuality, yet establishment clause challenges fail while they succeed when evolution is involved. The establishment clause cannot be understood solely as a statement about religion; its content depends upon the context in which religion is operating. When religion shapes our moral standards, constitutional scrutiny is more lax than when religion shapes our scientific standards. Analyzing the evolution decisions without reference to the constitutional status of science is like analyzing a steam engine without reference to the steam.

Not only have the courts kept Genesis out of the public school curriculum, they have prevented individual teachers and students from opting out of the standard course of study. In 1990, a federal appellate court held that a junior high school teacher had no free speech right to teach creationism when that topic was not included in the curriculum.[73] In 1992, when a California high school biology teacher was reprimanded for teaching creationism, he tried a different legal theory. He went to court, arguing that evolution was simply another religion and that his own rights were overridden when he was forced to teach Darwin’s theories as required by the standard curriculum.[74] His claim was rejected—the court found that the state could insist that its teachers teach its curriculum and the court rejected the characterization of evolution as “religion,” describing it instead as “the widely accepted scientific explanation of the origin of life.”[75]

Here again it is important to understand that it is not simply that religion is losing—it is mainstream science that is winning. Thus Stephen Carter, in the course of a sympathetic account of the views of creationists, notes that he “would be distressed were creationism to be offered as part of the curriculum at a public school supported by tax dollars, but it is important to note the reason. I would be distressed because I think it bad science—no more and no less.”[76]

Finally, perhaps the sharpest blow to traditional religion in this area came when some Tennessee parents, describing themselves as “born again Christians,” went to court in 1983 to argue that their children should be excused from public school classes when material offensive to their religion, including evolution, was taught.[77] They were not seeking the teaching of creationism or anything else—they just wanted released time. But the court rejected their free exercise of religion claim, saying that attending class did not require “affirmation or denial of a religious belief, or performance or non-performance of a religious exercise or practice.”[78] The court further concluded that the only way to accommodate the parents’ claim would be to eliminate all material offensive to their religion, and “the Supreme Court has clearly held that it violates the Establishment Clause to tailor a public school’s curriculum to satisfy the principles or prohibitions of any religion.”[79] The Epperson case was cited for the last proposition.

The Growth of Civil Religion

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The success of evolution in the courtrooms provides a strong measure of protection for science against a possible rival. It does not, however, fully account for the modern relationship between science and religion in American society. Religion has many claims that turn not at all on Darwin, and religion plays a major role in modern American life. Moreover, when science is not directly involved, we have seen that the courts have allowed the church to have considerable influence, as in the regulation of homosexual behavior. Nonetheless, when we examine the role of American religion in public life across the board, we see religion as a smaller presence than is required by logic and law. We also see science playing a larger role in many debates than might be expected.

This is not happening because Americans are flocking to atheism or agnosticism. Rumors of the death of religion in America are entirely unfounded. The percentage of Americans affiliated with a religious group is higher today than in the early 1950s and much higher than it was in the 1780s.[80] Moreover, the fastest growing denominations tend to be those with the most literalistic interpretation of the Bible.[81]

But the other side of the coin is revealing. The mainstream Protestant denominations—such as the Presbyterians, Lutherans, and Episcopalians—are in decline.[82] Moreover, the content of these traditional religions, as well as others, has become increasingly secularized.[83] Religions have sought to soften their distinctive teachings in order to appeal to an increasingly mobile and modernized constituency.

At the same time, America’s “civil” or “political” religion has become increasingly pervasive and hard to distinguish from the watered-down doctrines of the mainstream churches. Sociologist Peter L. Berger has defined civil religion as “basic convictions about human destiny and human rights as expressed in American democratic institutions.”[84] At times, our civil religion in practice becomes a nonthreatening notion that America and Americans believe in a vague, undemanding sort of God. As President Eisenhower reportedly said, “Our government makes no sense unless it is founded in a deeply felt religious faith—and I don’t care what it is.”[85] More recently, President Bush spoke of “our Nation’s Judeo-Christian moral heritage and … the timeless values that have united Americans of all religions and all walks of life: love of God and family, personal responsibility and virtue, respect for the law, and concern for others.”[86]

To some extent, American religion is a victim of its own success. The genuine opportunity for free exercise attracts people with countless beliefs from around the globe. Under the circumstances, public endorsement of any distinctive religious teaching is bound to offend quite a large number of Americans. It is important to remember that many objections to government-sponsored religious observances stem not from the complaints of atheists but from those of different faiths. For example, the 1963 U.S. Supreme Court case striking down Bible readings in the public schools was brought by a church-going Unitarian who objected, among other things, to the theological doctrine of the Trinity.[87] Earlier challenges to Bible readings were brought by Catholics who objected to use of the King James translation of the Bible, which was not approved by Catholic ecclesiastical authority.[88] In Boston, in 1859, an eleven-year-old Catholic boy was beaten by his teacher because he would not read the Ten Commandments from the King James version. When a court held that this discipline was proper, public outrage led to changes on the Boston School Committee.[89]

The practices of minority religions remain controversial today. In 1993, the Supreme Court struck down a Hialeah, Florida, ordinance that forbid the Santeria religion’s practice of animal sacrifice.[90] The Court noted the ordinance had been supported by many Cuban immigrants who were familiar with Santeria from their native country, and who applauded the fact that, in Cuba, “people were put in jail for practicing this religion.”[91] In America that cannot happen, but clearly it is true that a Santeria-dominated legislature could not impose its religious beliefs on an unconsenting minority.

The net effect is that religion, which can be highly distinctive, must be watered down when it is linked in any way with the government. Thus consider the well-known Supreme Court decisions allowing display on public property of a creche when it is surrounded by a “Seasons Greetings” banner and plastic reindeer,[92] but not when it stands alone.[93]

None of this means that religion cannot influence public debate and legislation. When a secular purpose can be shown, laws that mandate Sunday closings [94] or ban sodomy[95] will be upheld. But the tolerance demanded by the free exercise and nonestablishment clauses has an impact. On many issues, religious leaders, afraid of offending others and of losing parishioners, shy away from strong moral pronouncements. The stability of our pluralistic political community can only stand so much. As John Rawls has put it, the “overlapping consensus” needed if groups with different beliefs are to live peacefully together implies that religious groups themselves must be tolerant of other approaches to the truth.[96]

Stephen Carter argues for greater acceptance by American elites of people with strong traditional faith, but he also envisions a society in which religion remains separate from and critical of the state and in which various viewpoints can flourish.[97] According to Carter, religious groups that would take away the freedom of others should be opposed precisely because of the content of their beliefs.[98] The proper political goal, according to Carter, is the participation of religious and nonreligious groups in a “state that loves liberty and cherishes its diversity.”[99]

Science, Progress, and Values

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If religion in a pluralistic society is unlikely to be a unified source of values, the scientific community, with its unusual degree of internal coherence, is in some respects better off. Moreover, changes in the American conception of progress have strengthened the influence of science. In its Enlightenment embodiment, progress embraced the idea of improvement throughout human affairs. In this century, however, world wars, totalitarian regimes, and the growth of relativistic philosophies have undermined that faith.[100] We are no longer sure that our political ideas are moving forward, but we still like the idea of forward movement. So what remains? The answer is science—the one institution where progress is still the unashamed touchstone. Progressivism has survived today largely because modern thinkers “have divorced it from the ‘heavenly city of the eighteenth century philosophers,’ tied it to the cause of democracy and abundance, and brought it down to earth.”[101] Thus the linkage between science and faith available to the framers has fallen victim not only to Darwinism, but to increased secularization and pessimism:

In its inception when the secular order embraced the vision of a perfected humanity and a new human community, important segments of the community of faith could identify with the efforts to achieve such a goal. In that situation a collapse of faith into the general cultural situation was understandable. But with the decline of that vision and its supersession by the rise to dominance of the “technological imperative” it has become more difficult to find in the secular sphere reflections of a substantive Christian purpose.[102]

Thus in the public sphere appeals to science and its progressive values are common. We may no longer believe we can make better people, but we believe we can always learn more about the natural world, and some type of progress remains better than none.

But we must be cautious about what science cannot do. It is precisely its lack of normative content that makes progress an unproblematic norm in the scientific community. Science does not tell us what we ought to do. Indeed, it disclaims any such authority. If it did otherwise, it would weaken its claims to neutrality and testability. But we often forget that. A discussion of whether a computer can be built or whether a genetic therapy can be achieved quietly slips into an assumption that the computer or the therapy ought to be undertaken. Science, given the absence of a loud voice for traditional religion, often plays a large role in our thinking about the kind of society we ought to build.[103]

The theory of evolution itself offers an excellent example. As a scientific theory it has had enormous influence. But it has done much more than that. From nineteenth-century Social Darwinism to modern socio-biology, evolutionary ideas have spilled over into theories about human virtue and morality.[104] The presentation of those theories is perfectly appropriate and understandable—it would be odd indeed if science did not influence our thinking on nonscientific issues. But matters of morality, in the end, are not subject to the scientific method. One can believe, for example, that all of the physical similarity in the world does not prove that human moral choices are indistinguishable from the choices made by other animals. As one twentieth-century theologian wrote, “it is not true that a specific kind of continuity in the natural order affects the life of the human spirit.… Sin is not found in the brutes, and anyone who professes to find it there misunderstands the concept ‘sin.’ ”[105] These voices too often go unheard when speculations begin about the implications of the latest scientific breakthrough. Our pluralism makes the voices talking about values so diverse and dilute that they are too easily ignored.

Thus basic science occupies a favorable position indeed in American law and culture. The Constitution shields science from its rival—religion—and from government suppression. It lays the groundwork for generous funding, and statutes assure that the resulting funding is parceled out by the scientific community itself. Meanwhile in our pluralistic culture with traditional religious voices often weak and divided, science even plays a major role in the formation of our values. Throughout the entire process, the progressive ethos of science utterly dominates the cautious process norms of the lawyer. But when we come to applying science to the real world through technology, the tables are turned with a vengeance.

Notes

1. Bryan R. Wilson, Reflections on a Many Sided Controversy, in RELIGION AND MODERNIZATION 199–200 (Steve Bruce, ed., 1992).

2. See, e.g., WALTER PARCHOMENKO, SOVIET IMAGES OF DISSIDENTS AND NONCONFORMISTS 82–83 (1986).

3. MARGARITA MATHIOPOULOS, HISTORY AND PROGRESS: IN SEARCH OF THE EUROPEAN AND AMERICAN MIND 151 (1989).

4. Cf. J. B. BURY, THE IDEA OF PROGRESS (1932); and ROBERT NISBET, HISTORY OF THE IDEA OF PROGRESS (1980).

5. DAVID H. HOPPER, TECHNOLOGY, THEOLOGY AND THE IDEA OF PROGRESS 36–37 (1991).

6. MARGARITA MATHIOPOULOS, HISTORY AND PROGRESS: IN SEARCH OF THE EUROPEAN AND AMERICAN MIND III (1989).

7. MARGARET MATHIOPOULOS, HISTORY AND PROGRESS: IN SEARCH OF THE EUROPEAN AND AMERICAN MIND 151 (1989) (citing RALF DAHRENDORF, DIE ANGEWANDTE AUFLAURUNG [1968]).

8. M. A. DE WOLFE HOWE, THE GARDEN AND THE WILDERNESS 6, 25–26(1965).

9. Everson v. Board of Education, 330 U.S. 1 (1947); School District v. Schempp, 374 U.S. 203 (1963).

10. Everson v. Board of Education, 330 U.S. 1 (1947). The Court has held that the Fourteenth Amendment’s due process clause, enacted after the Civil War, makes the First Amendment applicable to the states. Id.

11. An earlier version of some of the following portions of this chapter appeared in Steven Goldberg, The Constitutional Status of American Science, 1979 U. ILL. L. FOR. 1 (1979).

12. THOMAS PRINCE, EARTHQUAKES: THE WORKS OF GOD AND TOKENS OF HIS JUST DISPLEASURE 23 (Boston, D. Fowle & Z. Fowle, 1755). see also Eleanor M. Tilton, Lightning-Rods and the Earthquake of 1755 13 NEW ENG. Q. 85 (1940). Prince essentially reprinted a sermon first published in 1727 and added an appendix. Id. at 85–86.

13. Eleanor M. Tilton, Lightning-Rods and the Earthquake of 1755, 13 NEW ENG. Q. 85, 86–89 (1940). See also BROOKE HINDLE, THE PURSUIT OF SCIENCE IN REVOLUTIONARY AMERICA 95 (1956); DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 258 (1958).

14. Eleanor M. Tilton, Lightning-Rods and the Earthquake of 1755, 13 NEW ENG. Q. 85, 94 (1940). JOHN WINTHROP, TWO LECTURES ON COMETS 21–44 (1759).

15. 1 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 18 (1969); ERNST CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT 161–62 (1960).

16. ERNEST CASSARA, THE ENLIGHTENMENT IN AMERICA 31–32 (1975). Caldwallader Colden, whose attacks on the clergy are cited by Cassara, made his greatest contributions to the field of botany. DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 163 (1958).

17. See, e.g., Harry H. Clark, The Influence of Science on American Ideas: From 177s to 1809, 35 TRANSACTIONS WIS. ACAD. 307–14 (1943); 1 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 200 (1969).

18. The Remonstrance is reprinted as an appendix to Everson v. Board of Education, 330 U.S. 1, 63, 67 (1947).

19. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 159–60 (W. Peden, ed., 1955).

20. LEONARD W. LEVY, FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 100 (1960); GEORGE F. SENSEBAUGH, MILTON IN EARLY AMERICA viii (1964).

21. CHRISTOPHER HILL, MILTON AND THE ENGLISH REVOLUTION 53–54 (1977); 1 DAVID MASON, THE LIFE OF JOHN MILTON 788, 821 (Peter Smith, ed., 2d ed. 1946) (1877).

22. See, e.g., ZECHARIAH CHAFFEE, FREE SPEECH IN THE UNITED STATES 3, 29, 298, 325, 498 (1967); LEONARD W. LEVY, FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 95–97 (1960).

23. JOHN MILTON, AREOPAGITICA 40 (R. Jebb, ed., AMS Press, 1971) (1918).

24. U.S. CONST, amend. I.

25. To a certain extent colonial Puritanism was compatible with science, albeit not as fully as Deism. See, e.g., Harry H. Clark, The Influence of Science on American Ideas: From 1775 to 1809, 35 TRANSACTIONS WIS. ACAD. 307–14 (1943); DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 222 (1958); Frederick G. Kilgour, The Rise of Scientific Activity in Colonial New England, 22 YALE J. BIOLOGY & MED. 123 (1949); Leonard Tucker, President Thomas Clap of Yale College: Another “Founding Father” of American Science, in EARLY AMERICAN SCIENCE 99 (Brooke Hindle, ed., 1976); CHARLES S. ROSENBERG, NO OTHER GODS: ON SCIENCE AND AMERICAN SOCIAL THOUGHT 2–4 (1976); DIRK J. STRUIK, YANKEE SCIENCE IN THE MAKING 30 (1948).

26. See, e.g., Brooke Hindle, The Quaker Background and Science in Colonial Philadelphia, 46 ISIS 243 (1955); see also ALAN D. BEYERCHEN, SCIENTISTS UNDER HITLER 27–39 (1977).

27. This analogy has been noted by many, including Freud in 1917. See BRUCE MAZLISH, THE FOURTH DISCONTINUITY: THE CO-EVOLUTION OF HUMANS AND MACHINES (1993).

28. MASAO WATANABE, THE JAPANESE AND WESTERN SCIENCE 67 (1990).

29. Edwin O. Reischauer, Foreword, to MASAO WATANABE: THE JAPANESE AND WESTERN SCIENCE ix-x (1990).

30. Of course, many Christians today accept evolution while retaining their faith. See, e.g., RAYMOND A. EVE & FRANCIS B. HARROLD, THE CREATIONIST MOVEMENT IN MODERN AMERICA 3–4 (1991).

31. Scopes v. State, 289 S.W. 363 (1927).

32. The nonestablishment clause was first applied to the states in Everson v. Board of Education, 330 U.S. 1 (1947).

33. Scopes v. State, 289 S.W. 363 (1927).

34. See, e.g., Rollin L. Hartt, What Lies Beyond Dayton, NATION, July 22, 1925, at 111–12. See generally SHELDON NORMAN GREBSTEIN, MONKEY TRIAL: THE STATE OF TENNESSEE VS. JOHN THOMAS SCOPES (1960).

35. See, e.g., Amateur Dramatics at Dayton, CHRISTIAN CENTURY, July 30, 1925, at 969–70.

36. Scopes v. State, 289 S.W. 363, 367.

37. Id.

38. Id.

39. 393 U.S. 97(1968).

40. The Arkansas statute was similar to the Tennessee statute involved in the Scopes case, Scopes v. State, 289 S.W. 363 (1927). See Harry A. Kalven, A Commemorative Case Note: Scopes v. State, 27 U. CHI. L. REV. 505, 510 n.14 (1960); Thomas I. Emerson & Herbert Haber, The Scopes Case in Modern Dress, 27 U. CHI. L. REV. 522 (1960); Malcolm P. Sharp, Science, Religion, and the Scopes Case, 27 U. CHI. L. REV. 529 (1960). See also Note, Constitutional Law: Validity of the Tennessee Anti-Evolution Law, 5 TENN. L. REV. 242 (1927).

41. Brief of the National Education Ass’n of the United States and the National Science Teachers Ass’n as Amici Curiae at 13a, Epperson v. Arkansas, 393 U.S. 97 (1968) (No. 7).

42. Brief for Appellants at 16, Epperson v. Arkansas, 393 U.S. 97 (1968) (No. 7).

43. Transcript of Oral Argument at 17, Epperson v. Arkansas, 393 U.S. 97 (1968)(No. 7). Counsel for Arkansas replied, “I would, first of all, hope that the Courts and the people would think that would be an unreasonable encroachment.” Id.

44. See 393 U.S. at 102 nn.9 & 10.

45. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 229 n.10, 230, 592, 836–37, 867 (1978); Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95, 120 n.125 (1971); John H. Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L. J. 1205, 1318 (1970); Frederic S. LeClercq, The Monkey Laws and the Public Schools: A Second Consumption?, 27 VAND. L. REV. 209, 217 (1974); Laurence H. Tribe, The Supreme Court 1972 Term: Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 22 n.103 (1973).

46. 393 U.S. at 107–9.

47. In Board of Education v. Allen, 392 U.S. 236 (1968), for example, the legislature enacted a textbook loan program that included parochial schools. The Court’s entire discussion of religious purpose consists of the following: “The express purpose of {701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose.” Id. at 243. In Epperson, however, the Court refused to accept the argument that the anti-evolution statute might have been motivated by a desire to keep a controversial subject out of the schools. 393 U.S. at 112–13 (Black, J., concurring).

48. 393 U.S. at 107.

49. 393 U.S. at 101, 102.

50. Smith v. State, 242 So. 2d 692 (Miss. 1970).

51. See Daniel v. Waters, 515 F.2d 485, 487, 489 (6th Cir. 1975).

52. Id. at 489–91. The court found that “the result of this legislation is a clearly defined preferential position for the biblical version of creation as opposed to any account of the development of man based on scientific research and reasoning.” Id. at 489. In Steele v. Waters, 527 S.W. 2d 72 (Tenn. 1975), the Supreme Court of Tennessee, following the Sixth Circuit decision, agreed that the Tennessee statute violated the establishment clause.

53. Moore v. Gaston County Board of Education, 357 F. Supp. 1037, 1038 (W.D.N.C. 1973).

54. Id. at 1038–39.

55. Id. at 1043.

56. Id. at 1042–43.

57. For an early discussion of the creationist endeavor, see Wendell R. Bird, Freedom of Religion and Science Instruction in Public Schools, 87 YALE L. J.515 (1978).

58. NATIONAL ACADEMY OF SCIENCES, SCIENCE AND CREATIONISM (1984).

59. Edwards v. Aguillard, 482 U.S. 578 (1987).

60. Id. at 581.

61. Id. at 596, n.18.

62. Id. at 593.

63. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 168–169 (1993).

64. See Leviticus 18:22 (“Thou shalt not lie with mankind as with womankind, it is a abomination”). See also id. 18:23, 20:13, 15, 16; Romans 1:27. For a discussion of the religious origins of the laws against homosexuality see, e.g., Note, Sexual Freedom for Consenting Adults: Why Not?, 2 PAC. L. J. 206, 210–12 (1971); Note, Sodomy Statutes: A Need for Change, 13 S.D. L. REV. 384–85 (1968).

65. See, e.g., MORRIS PLOSCOWE, SEX AND THE LAW 184 (1962); Note, Sexual Freedom for Consenting Adults: Why Not?, 2 PAC. L. J. 206, 210, 211 n.29 (1971); Note, Sodomy Statutes: A Need for Change, 13 S.D. L. REV. 385 (1968).

66. See McGowan v. Maryland, 366 U.S. 420, 431–37, 442 (1961).

67. See, e.g., Note, Deviate Sexual Behavior: The Desirability of Legislative Proscription, 30 ALB. L. REV. 291, 293–94 (1966).

68. See generally Note, Sexual Freedom for Consenting Adults: Why Not?, 2 PAC. L.J. 206 (1971).

69. See, e.g., Caster v. State, 500 S.W.2d 368, 371–72 (1973); Connor v. State, 490 S.W.2d 114, 115 (1973); State v. Rhinehart, 424 P.2d 906, 910 (1967).

70. Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199 (E.D. Va. 1975), aff’d mem., 425 U.S. 901 (1976).

71. Id. at 1202, n.2. See also Farr v. Mancusi, 70 Misc. 2d 830, 832 (N.Y. County Ct. 1972); State v. Stokes, 163 S.E. 2d 770, 774 (1968).

72. Bowers v. Hardwick, 478 U.S. 186 (1986).

73. Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir. 1990).

74. Peolza v. Capistrano Unified School District, 782 F. Supp. 1412 (1992).

75. Id. at 1414, n.1.

76. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 161 (1993).

77. Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987). The plaintiffs in this case challenged much more than just the teaching of evolution. See Naomi M. Stolzenberg, “He Drew a Circle That Shut Me Out”: Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 HARV. L. REV. 581 (1993).

78. Id. at 1065.

79. Id. at 1064.

80. Roger Finke, An Unsecular America, in RELIGION AND MODERNIZATION 148–49 (Steve Bruce, ed., 1992).

81. Id. at 153.

82. Id. at 152.

83. Peter L. Berger, Religion in a Revolutionary Society, in AMERICA’S CONTINUING REVOLUTION 150 (1975).

84. Id. at 145–146. See also ROBERT N. BELLAH, THE BROKEN COVENANT: AMERICAN CIVIL RELIGION IN TIME OF TRIAL (2d ed. 1992).

85. Peter L. Berger, Religion in a Revolutionary Society, in AMERICA’S CONTINUING REVOLUTION 143 (1975). There is dispute about whether Eisenhower actually made this statement. See Richard J. Neuhaus, Who Needs God, NAT’L REV., Nov. 10, 1989, at 52.

86. Proclamation 6508—Thanksgiving Day, 1992, 28 WEEKLY COMP. PRES. DOC. 2312, 2313 (Nov. 20, 1992).

87. JOHN T. NOONAN, JR., THE BELIEVERS AND THE POWERS THAT ARE: CASES, HISTORY, AND OTHER DATA BEARING ON THE RELATION OF RELIGION AND GOVERNMENT 411 (1987).

88. Id. at 410–11.

89. Id. at 411.

90. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993).

91. Id. at 2231.

92. Lynch v. Donnelly, 465 U.S. 668 (1984).

93. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).

94. McGowan v. Maryland, 366 U.S. 420 (1961).

95. Bowers v. Hardwick, 468 U.S. 186 (1986).

96. JOHN RAWLS, POLITICAL LIBERALISM 145–149 (1993).

97. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 273–74 (1993).

98. Id. at 266.

99. Id. at 274.

Notes
Notes to Chapter 1
1. See, e.g., DON K. PRICE, THE SCIENTIFIC ESTATE (1965).

2. See., e.g., M. R. Smith, Technology, Industrialization, and the Idea of Progress in America, in RESPONSIBLE SCIENCE: THE IMPACT OF TECHNOLOGY ON SOCIETY 1 (Kevin B. Byrne, ed., 1986).

3. RALPH E. LAPP, THE NEW PRIESTHOOD (1965).

4. C. P. SNOW, THE TWO CULTURES AND THE SCIENTIFIC REVOLUTION (1959). Snow’s book caused considerable discussion and debate. For a representative collection of articles, see DAVID K. CORNELIUS & EDWIN ST. VINCENT, CULTURES IN CONFLICT: PERSPECTIVES ON THE SNOW-LEA VIS CONTROVERSY (1964). For a more recent contribution to the controversy, see RICHARD OLSON, SCIENCE DEIFIED AND SCIENCE DEFIED 1–7 (1982). I have previously set forth the views that follow on Snow’s work in Steven Goldberg, The Central Dogmas of Law and Science, 36 J. LEGAL EDUC. 37 (1986).

5. C. P. SNOW, THE TWO CULTURES AND THE SCIENTIFIC REVOLUTION 4 (1959).

6. C. P. SNOW, THE TWO CULTURES AND A SECOND LOOK 69 (1964).

7. GERALD GRAFF, LITERATURE AGAINST ITSELF: LITERARY IDEAS IN MODERN SOCIETY 7, 15 (1979). On the “vogue of indeterminism” that grew up in the 1930’s, see MERLE CURTI, THE GROWTH OF AMERICAN THOUGHT 702–9 (3rd ed. 1982). For an argument that America has never had the sort of influential literary elite that marked Old-World culture, see DON PEMBER, MASS MEDIA IN AMERICA 39–43 (1974).

8. Peter H. Schuck, Multi-Culturalism Redux: Science, Law and Politics, 11 YALE L. & POL’Y REV. 1, 2 (1993).

9. GERTRUDE HIMMELFARB, MARRIAGE AND MORALS AMONG THE VICTORIANS 92 (1986).

10. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 348–51 (New York, Sever & Francis, 1862) (1841).

11. EDMUND BURKE, SELECTED WRITINGS AND SPEECHES 161 (Peter J. Stanlis, ed., 1963).

12. See, e.g., ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 352–55 (New York, Sever & Francis, 1862) (1841).

Notes to Chapter 2
1. An earlier version of portions of this chapter appears in Steven Goldberg, The Reluctant Embrace: Law Science in America, 75 GEO. L. J. 1341 (1987).

2. EDWARD N. DAC ANDRADE, SIR ISAAC NEWTON 11, 120 (1954).

3. See LOYD S. SWENSON, JR., GENESIS OF RELATIVITY: EINSTEIN IN CONTEXT 238 (1979); Robert K. Faulkner, John Marshall in History, in JOHN MARSHALL 170 (Stanley I. Kutler, ed., 1972).

4. The importance of priority in the scientific community is discussed in Robert K. Merton, Priorities in Scientific Discovery: A Chapter in the Sociology of Science, in THE SOCIOLOGY OF SCIENCE 447 (Bernard Barber & Walter Hirsh, eds., 1962). I have discussed those features of the scientific enterprise of central concern to lawyers in Steven Goldberg, The Central Dogmas of Law and Science, 36 J. LEGAL EDUC. 371, 376–79 (1986).

5. KARL POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY 27 (1968).

6. Willard V. Quine & J. S. Ullian, Hypothesis, in WILLARD V. QUINE & J. S. ULLIAN, THE WEB OF BELIEF 64, 80 (1978).

7. Deconstructionist scholars who study science are discussed in SHEILA JA-SANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 12–14 (1990).

8. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962).

9. Id. at 10.

10. Id. at 35–42.

11. Id. at 52.

12. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 84 (1962).

13. Id. at 93.

14. Willard. V. Quine & J. S. Ullian, Hypothesis, in WILLARD V. QUINE & J. S. ULLIAN, THE WEB OF BELIEF 64, 71 (1978).

15. Thomas S. Kuhn, Objectivity, Value Judgment, and Theory Choice, in THOMAS S. KUHN: THE ESSENTIAL TENSION 320 (1977).

16. See I. BERNARD COHEN, REVOLUTION IN SCIENCE 25–28, 389–404 (1985).

17. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 165, 172 (1962).

18. Id. at 167.

19. See, e.g., Robert Hollinger, From Weber to Habermas, in E. D. KLEMKE, ET. AL., INTRODUCTORY READINGS IN THE PHILOSOPHY OF SCIENCE (1988); BRUNO LATOUR & STEVE WOOLGAR, LABORATORY LIFE (1986); I. BERNARD COHEN, REVOLUTION IN SCIENCE 559–61 (1985).

20. SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 14 (1990).

21. An attack on creationism from the viewpoint of the scientific community is contained in NATIONAL ACADEMY OF SCIENCES, SCIENCE AND CREATIONISM (1984). Some of the science community’s criticism of the alleged effectiveness of laetrile is summarized in United States v. Rutherford, 442 U.S. 544, 557, n.15 (1979).

22. BANESH HOFFMAN, ALBERT EINSTEIN: CREATOR AND REBEL 80–82 (1972).

23. See, e.g., DAVID P. BILLINGTON, THE TOWER AND THE BRIDGE 8–10 (1983).

24. ROBERT OPPENHEIMER: LETTERS AND RECOLLECTIONS 317 (Alice K. Smith & Charles Weiner, eds., 1980).

25. Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 YALE L. & POL’Y REV. 1, 25 (1993).

26. Steven Goldberg, On Legal and Mathematical Reasoning, 22 JURIMET-RICSJ. 83 (1981).

27. See generally CHAIM PERELMAN, JUSTICE, LAW, AND ARGUMENT 120–24 (1980); Chaim Perelman, Rhetoric and Politics, 17 PHIL. & RHETORIC 129, 129–30 (1984).

28. Oliver W. Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 459–60 (1899).

29. See Richard Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1683–84 (1975).

30. David Bazelon, Coping with Technology through the Legal Process, 62 CORNELL L. REV. 817, 825 (1977) (emphasis in original).

31. ROBERT OPPENHEIMER: LETTERS AND RECOLLECTIONS 317 (Alice K. Smith & Charles Weiner, eds., 1980).

32. McNabb v. United States, 318 U.S. 332, 347 (1943).

33. WERNER HEISENBERG, PHYSICS AND BEYOND: ENCOUNTERS AND CONVERSATIONS 69 (1971); see ON AESTHETICS IN SCIENCE (Judith Wechsler, ed., 1978) (relationship of science and beauty).

34. Ricketts v. Pennsylvania R.R. Co., 153 F.2d 757, 764 (2d Cir. 1946) (Frank, J., concurring). Frank believed that even physicists did not carry their desire for consistency to excess. Id. at 764 n.23.

35. Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993).

36. Id. at 2793. The “generally accepted” test came from Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). Id.

37. The Court cited some of these amicus briefs in its opinion. See, e.g., Daubert v. Merrell Dow, 113 S. Ct. 2786, 2795 (1993).

38. Brief of Amici Curiae of Nicolaas Blembergen, et. al., at 4, Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993) (No. 92-102).

39. Id. at 11.

40. Brief of Amici Curiae of Physicians, Scientists, and Historians of Science in Support of Petitioners at 2, Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993) (No. 92-102).

41. Daubert v. Merrell Dow, 113 S. Ct. 2786, 2796–97 (1993).

42. Id.

43. Id. at 2798.

44. Id. at 2798.

45. Id. at 2799.

46. Id. at 2798–99.

47. SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 76 (1990).

48. Victor F. Weisskopf, Why Pure Science?, BULL. ATOM. SCIENTISTS, Apr. 1965, at 4, 8. See also Leon M. Lederman, The Value of Fundamental Science, SCI. AM., Nov. 1984, at 40, 45.

Notes to Chapter 3
1. An earlier version of portions of this chapter can be found in Steven Goldberg, The Constitutional Status of American Science, 1979 U. ILL. L. FOR. 1 (1979).

2. 2 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 126–66 (1969); ERNST CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT 43–45 (1960).

3. 2 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 127–87 (1969).

4. THE WORKS OF ALEXANDER POPE 390 (William J. Courthope, et. al., eds., 1967). See also 2 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 103 (1969); CARL BECKER, THE HEAVENLY CITY OF THE EIGHTEENTH-CENTURY PHILOSOPHERS 57–63 (1932).

5. ERNEST CASSARA, THE ENLIGHTENMENT IN AMERICA 31 (1975); HENRY F. MAY, THE ENLIGHTENMENT IN AMERICA 211–14 (1976); Frederick E. Brasch, The Newtonian Epoch in the American Colonies, 49 AM. ANTIQUARIAN SOC’Y PROC. 314 (1939); I. Bernard Cohen, Science and the Growth of the American Republic, 38 REV. POL. 359, 364–71 (1976); Richard Delgado & David R. Millen, God, Galileo, and Government: Toward Constitutional Protection for Scientific Inquiry, 53 WASH. L. REV. 349, 354–61 (1978).

6. See generally BROOKE HINDLE, DAVID RITTENHOUSE (1964); EDWARD FORD, DAVID RITTENHOUSE (1946).

7. See DANIEL J. BOORSTIN, THE LOST WORLD OF THOMAS JEFFERSON 14–16 (1960); BROOKE HINDLE, THE PURSUIT OF SCIENCE IN REVOLUTIONARY AMERICA 1735–89, 239–40, 297–98 (1956).

8. See BROOKE HINDLE, THE PURSUIT OF SCIENCE IN REVOLUTIONARY AMERICA 320–23 (1956); Harry H. Clark, The Influence of Science on American Ideas: From 1775 to 1809, 35 TRANSACTIONS WIS. ACAD. 312 n.44 (1943); EDWIN T. MARTIN, THOMAS JEFFERSON: SCIENTIST (1952); DUMAS MALONE, JEFFERSON AND THE RIGHTS OF MAN 83–85 (1951).

9. EDWARD M. BURNS, JAMES MADISON: THE PHILOSOPHER OF THE CONSTITUTION 24–25 (1968); GAILLARD HUNT, THE LIFE OF JAMES MADISON 96–97 (1902).

10. JAMES T. FLEXNER, THE YOUNG HAMILTON: A BIOGRAPHY 47, 62 (1978); BROADUS MITCHELL, ALEXANDER HAMILTON: YOUTH TO MATURITY 54 (1957).

11. PETER GAY, THE ENLIGHTENMENT: A COMPREHENSIVE ANTHOLOGY 766 (1973); I. BERNARD COHEN, FRANKLIN AND NEWTON 36–37 (1966).

12. See DON K. PRICE, THE SCIENTIFIC ESTATE 85–89 (1965); DANIEL J. BOORSTIN, THE LOST WORLD OF THOMAS JEFFERSON 244 (1960); Robert K. Merton, Science and the Social Order, in THE SOCIOLOGY OF SCIENCE 254, 265 (Norman W. Storer, ed., 1973).

13. See, e.g., Arnold Thackray, The Industrial Revolution and the Image of Science, in SCIENCE AND VALUES 3 (Arnold Thackray & Everett Mendelsohn, eds., 1974); WHITFIELD BELL, EARLY AMERICAN SCIENCE: NEEDS AND OPPORTUNITIES FOR STUDY 8 (1955).

14. 10 THE WRITINGS OF THOMAS JEFFERSON 141 (Andrew A. Lipscomb, et. al., eds., 1904).

15. See I. Bernard Cohen, Science and the Growth of the American Republic, 38 REV. POL. 359, 365 (1976). On the role of science in the creation of American institutions see, e.g., Harry H. Clark, The Influence of Science on American Ideas: From 1775 to 1809, 35 TRANSACTIONS WIS. ACAD. 312 n.44 (1943); GARRY WILLS, INVENTING AMERICA (1978); DANIEL J. BOORSTIN, THE REPUBLIC OF TECHNOLOGY 57–60 (1978); GRANT GILMORE, THE AGES OF AMERICAN LAW 4–5 (1977); Douglass Adair, “That Politics May Be Reduced to a Science”: David Hume, James Madison, and the Tenth Federalist, 20 HUNTINGTON LIB. Q. 343 (1957); Thomas I. Emerson, Colonial Intentions and Current Realities of the First Amendment, 125 U. PA. L. REV. 737, 741 (1977).

16. Philip M. Freneau & H. H. Brackenridge, The Rising Glory of America, inPOEMS OF FRENEAU 12–13 (Harry H. Clark, ed., 1929). Freneau embodied the love of science and political engagement characteristic of his period. See MARY W. BOWDEN, PHILIP FRENEAU 9–10 (1976); FRANK L. MOTT, AMERICAN JOURNALISM 123–27 (3d ed. 1962).

17. POEMS OF FRENEAU 103 (Harry H. Clark, ed., 1929).

18. BROOKE HINDLE, THE PURSUIT OF SCIENCE IN REVOLUTIONARY AMERICA 249–53 (1956).

19. 7 THE WRITINGS OF THOMAS JEFFERSON 329 (Andrew A. Lipscomb et. al., eds., 1904).

20. 15 id. at 339; 16 id. at 182. On Jefferson’s use of the word science, see 10 THE WRITINGS OF THOMAS JEFFERSON 141 (Andrew A. Lipscomb, et al., eds., 1904). Jefferson’s statement, written in 1821, reflected his longstanding belief in the intimate relationship between freedom and science. See THOMAS JEFFERSON, ON SCIENCE AND FREEDOM: THE LETTER TO THE STUDENT WILLIAM G. MUNFORD (Julian P. Boyd, ed., 1964). See also Dr. Isaiah Bowman, Jeffersonian “Freedom of Speech” from the Standpoint of Science, 82 SCIENCE 529 (1935).

21. Levy has summarized his view of Jefferson’s position on free speech as follows: “His threshold of tolerance for hateful political ideas was less than generous. Eloquently and felicitously he declared himself in favor of freedom of speech and press, but invariably either in favor of the liberty of his own political allies or merely in abstract propositions. … He cared deeply for the intellectual liberty of religious, scientific or philosophical heretics—unless political heresies of his own adherence were involved.” Leonard W. Levy, Jefferson as a Civil Libertarian, in THOMAS JEFFERSON: THE MAN … HIS WORLD … HIS INFLUENCE 197 (Lally Weymouth, ed., 1973).

22. 1 JOURNALS OF THE CONTINENTAL CONGRESS 108 (1904). Although Levy contends that the sentiments in the letter were at times not practiced by Congress, he does not question congressional views on scientific freedom. See Leonard W. Levy, Jefferson as a Civil Libertarian, in THOMAS JEFFERSON: THE MAN … HIS WORLD … HIS INFLUENCE 188 (Lally Weymouth, ed., 1973).

23. L.R. 3 Q.B. 360 (1868). Use of the Hicklin test in American courts is discussed in Roth v. United States, 354 U.S. 476, 488–89 (1957).

24. 3 Q.B. at 366.

25. The history and relevant case law is discussed in Parmelle v. United States 113 F.2d 729, 734–36 (D.C. Cir. 1940). A particularly important early decision was United States v. Dennett, 39 F.2d 564 (2d Cir. 1930), which held a sex education manual not to be obscene.

26. 354 U.S. 476 (1957).

27. In the course of arguing that obscenity is not protected by the First Amendment, the government’s brief presented a “comparative scale of value” by which it proposed First Amendment claims should be judged. Brief for the United States at 28, Roth v. United States, 354 U.S. 476 (1957)(No. 582). Science fares well under this approach. The government suggested that different kinds of speech be ranked as follows: political speech, religious, economic, scientific, general news and information, social and historical commentary, literature, art, entertainment, music, humor, commercial advertisements, gossip, comic books, epithets, libel, obscenity, profanity, commercial pornography. Id. at 29. Those who oppose the two-tiered analysis adopted in Roth may take comfort in the Court’s apparent rejection of this nineteen-tiered system. Had it been adopted, hard cases might have resulted from, for example, the decision to rank “humor” three steps above “comic books.” Nonetheless, a more flexible ranking of the value of various kinds of speech may well be an important part of modern First Amendment jurisprudence. See, e.g., F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). The Pacifica plurality specifically retains a high status for scientific speech. Id. at 746.

28. 354 U.S. at 487. The Court cites United States v. Dennett, 39 F.2d 564 (2d Cir. 1930) for this proposition. Earlier in the Roth opinion, the Court relies on the 1774 letter of the Continental Congress to the Citizens of Quebec to delineate the proper scope of the First Amendment. 354 U.S. at 484; 1 JOURNALS OF THE CONTINENTAL CONGRESS 108 (1904).

29. United States v. 31 Photographs, 156 F. Supp. 350 (S.D.N.Y. 1957). See also Henley v. Wise, 303 F. Supp. 62, 67 (N.D. Ind. 1969).

30. 413 U.S. 15 (1973).

31. Id. at 34.

32. Id. at 26.

33. New York Times Co. v. United States, 403 U.S. 713 (1971); Near v. Minnesota, 283 U.S. 697 (1931).

34. Firestone v. First Dist. Dental Soc’y. 299 N.Y.S.2d 551, 554, 697 (1931).

35. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340–41 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1971).

36. Demuth Dev. Corp. v. Merck and Co., Inc., 432 F. Supp. 990, 993 (E.D.N.Y. 1977) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 [1974]).

37. Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

38. Metpath v. Imperato, 450 F. Supp. 115 (S.D.N.Y. 1978).

39. See, e.g., Konigsberg v. State Bar of California, 366 U.S. 36, 49 (1961) (“[W]e reject the view that freedom of speech and association … are ‘absolutes.’…”).

40. See, e.g., Developments in the Law: The National Security Interest and Civil Liberties, 85 HARV. L. REV. 1130, 1190–1207 (1972). Under one executive order, information was classified as “top secret” it if contained, inter alia, “scientific or technological developments vital to national security.” Knopf v. Colby, 509 F.2d 1362, 1368 (4th Cir.), cert, denied, 421 U.S. 992 (1975).

41. Developments in the Law: The National Security Interest and Civil Liberties, 85 HARV. L. REV. 1130, 1195 (1972).

42. See generally WALTER GELLHORN, SECURITY, LOYALTY AND SCIENCE (1950); Wallace Parks, Secrecy and the Public Interest in Military Affairs, 26 GEO. WASH. L. REV. 23, 36–43 (1957).

43. Near v. Minnesota, 283 U.S. 697, 716 (1931).

44. United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wisc.). After this decision was handed down, another journal published the article in question. An appellate court then dismissed the case as moot. 610 F.2d 819 (7th Cir. 1979). It is widely accepted that the government properly kept the design of the atomic bomb secret during World War II; see, e.g., Developments in the Law: The National Security Interest and Civil Liberties, 85 HARV. L. REV. 1130, 1190–91, 1195 (1972); John T. Edsall, Scientific Freedom and Responsibility: Report of the AAAS Committee on Scientific Freedom and Responsibility, 188 SCIENCE 687, 689 (1975).

45. Stanley v. Georgia, 394 U.S. 557, 567 (1969).

46. See Brandenburg v. Ohio, 395 U.S. 444 (1969).

47. See, e.g., Williams v. Rhodes, 393 U.S. 23, 32 (1968); Buckley v. Valeo, 424 U.S. 1, 39 (1976); ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 27 (1966).

48. See, e.g., Alexander Meikeljohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 257 (1961); Harry Kalven, The New York Times Case: “A Note of The Central Meaning of the First Amendment,” 1964 SUP. CT. REV. 191, 221 (1964); Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L. J. 877, 883 (1963). Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L. J. 1, 28 (1971).

49. See, e.g., SILVIO A. BENDINI, THE LIFE OF BENJAMIN BANNEKER 103–36 (1972).

50. See, e.g., A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 14, 15, 293, 294 (1957). Madison undoubtedly recalled that, when he and Pinckney moved at the Constitutional Convention to give Congress power to create a national university, Gouverneur Morris replied, “It is not necessary. The exclusive power at the seat of government, will reach the object.” The proposal was then defeated six votes to four, with Connecticut divided. See MAX FARRAND, 2 RECORDS OF THE FEDERAL CONVENTION 616 (1911); JAMES MADISON, 2 JOURNALS OF THE FEDERAL CONVENTION 726–27 (Erastus H. Scott, ed., 1893). Although Jefferson initially appeared to believe a national university could be created under the Constitution, when he became president he favored a constitutional amendment for that purpose. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 14–15, 2.3–24 (1957). In other areas, particularly in relation to surveys, President Jefferson managed to aid science even when it required modifying some of his strict constructionist statements. See id. at 24–29.

51. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 26 (1957); DON K. PRICE, GOVERNMENT AND SCIENCE 10–11 (1954); Gordon B. Baldwin, Law in Support of Science: Legal Control of Basic Research Resources, 54 GEO. L. J. 559, 575 (1966).

52. DON K. PRICE, GOVERNMENT AND SCIENCE 38 (1954).

53. See, e.g., ROBERT K. MERTON, SCIENCE, TECHNOLOGY AND SOCIETY IN SEVENTEENTH CENTURY ENGLAND 185–98 (1970).

54. Id., at xiii, 184–207.

55. See DANIEL J. BOORSTIN, THE LOST WORLD OF THOMAS JEFFERSON 13–14 (1960). For discussion of Rittenhouse’s extensive contributions to the war effort, see JOHN F. KASSON, CIVILIZING THE MACHINE 13 (1976); BROOKE HINDLE, THE PURSUIT OF SCIENCE IN REVOLUTIONARY AMERICA 229–31 (1956).

56. I. Bernard Cohen, Science and the Revolution, 47 TECH. REV. 367, 368 (1945). Saltpeter is potassium nitrate, a vital gunpowder ingredient that America had not produced prior to the Revolutionary War. JOHN F. KASSON, CIVILIZING THE MACHINE 11 (1976).

57. BROOKE HINDLE, THE PURSUIT OF SCIENCE IN REVOLUTIONARY AMERICA 244–45 (1956).

58. See generally I. Bernard Cohen, Science and the Revolution, 47 TECH. REV. 367 (1945).

59. I. Bernard Cohen, Science and the Revolution, 47 TECH. REV. 374 (1945).

60. Id.; SALVIO A. BENDINI, THINKERS AND TINKERS 365 (1975).

61. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 26–28 (1957). Jefferson also invoked the commerce power to convince Congress to appropriate money for the expedition. See also DON K. PRICE, GOVERNMENT AND SCIENCE 10–11 (1954); Gordon B. Baldwin, Law in Support of Science: Legal Control of Basic Research Resources, 54 GEO. L. J. 559, 575 (1966). In addition, in 1807, a coastal survey was funded in part for military purposes. The survey was directed by Ferdinand Hassler, a leading scientist, later appointed the first superintendent of weights and measures. See A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 29–30 (1957); REXMOND C. COCHRANE, MEASURES FOR PROGRESS 515–26 (1966).

62. Military needs were central to the development of such institutions as the Naval Observatory and the Public Health Service. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 184–87, 256–70 (1957). The World War II Manhattan Project, which developed the atomic bomb, was under military command. DANIEL S. GREENBERG, THE POLITICS OF PURE SCIENCE 88 (1967).

63. U.S. CONST, art. I, § 8, cl. 12.

64. See MAX FARRAND, 2 RECORDS OF THE FEDERAL CONVENTION 508–9 (1911); JAMES MADISON, 2 JOURNALS OF THE FEDERAL CONVENTION 660–62 (Erastus H. Scott, ed., 1893).

65. See, e.g., THE FEDERALIST NO. 24, at 148 (Alexander Hamilton)(Modern Library ed. i937)(“[t]hat clause which forbids the appropriation of money for the support of the army for any period longer than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.”) See also id. at 163.

66. See, e.g., Albert C. Lazure, Why Research and Development Contracts Are Distinctive, in RESEARCH AND DEVELOPMENT PROCUREMENT LAW 255, 262 (Albert C. Lazure & Andrew P. Murphy, eds., 1957). Most military research and development is performed under contract with private industry and universities. The uncertainties involved in planning and executing such contracts require close collaboration between defense agencies and scientists in the private sector. See, e.g., DON K. PRICE, GOVERNMENT AND SCIENCE 36–40 (1954).

67. 25 Op. Att’y Gen. 105 (1904); 40 Op. Att’y Gen. 555 (1948). After the latter opinion, Congress enacted legislation that authorized the military to enter into research and contracts lasting up to ten years. 10 U.S.C. §2352 (1976).

68. The Constitution provides that Congress shall have the power “to coin money, regulate the value thereof … and fix the standard of weights and measures.” U.S. CONST, art. I, § 8, cl. 5.

69. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 17–18 (1957).

70. Id. The early years under Rittenhouse were particularly difficult due in part to a shortage of supplies. See FRANK H. STEWART, HISTORY OF THE FIRST UNITED STATES MINT 57, 62 (reprint of 1928 ed). (1974).

71. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 17–18 (1957).

72. REXMOND C. COCHRANE, MEASURES FOR PROGRESS 21–33 (1966).

73. Id. at 24–27.

74. 31 Stat. 1449 (1901) (current version at 15 U.S.C. § 271 [1977]).

75. See, e.g., DANIEL J. KEVLES, THE PHYSICISTS 66–67 (1977).

76. REXMOND C. COCHRANE, MEASURES FOR PROGRESS 559, 631–48 (1966).

77. Id. at 624–30.

78. U.S. CONST, art. I, § 8, cl. 8.

79. See, e.g., Karl B. Lutz, Patents and Science, 18 GEO. WASH. L. REV. 50 (1949).

80. See, e.g., Edward S. Irons & Mary H. Sears, The Constitutional Standard of Invention: The Touchstone for Patent Reform, 1973 UTAH L. REV. 653, 653 n.1 (1973).

81. See, e.g., BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW (1967). P. J. Federico, Colonial Monopolies and Patents, 11 J. PAT. OFF. SOC’Y 358 (1929); Kark Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 GEO. L. J. 109 (1929); Edward S. Irons & Mary H. Sears, The Constitutional Standard of Invention: The Touchstone for Patent Reform, 1973 UTAH L. REV. 653, 653 n.1 (1973).

82. Proposals submitted to the Committee of Detail at the Constitutional Convention, but never reported out, would have given Congress power “to encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries.” MAX FARRAND, 2 RECORDS OF THE FEDERAL CONVENTION 321, 325 (1911); JAMES MADISON, 2 JOURNALS OF THE FEDERAL CONVENTION 550 (Erastus H. Scott, ed., 1893); Karl Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 GEO. L. J. 109 (1929). The patent clause as enacted did require the government to evaluate proposed inventions for patentability and thus ultimately led to creation of the U.S. Patent Office. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 12–14, 46–47 (1957).

83. See, e.g., BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 14 (1967).

84. See, e.g., Harry H. Clark, To Promote the Progress of… Useful Arts, 43 N.Y.U. L. REV. 88, 94 (1968); Edward S. Irons & Mary H. Sears, The Constitutional Standard of Invention: The Touchstone for Patent Reform, 1973 UTAH L. REV. 653, 653 n.1 (1973).; BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 61, 130–31 (1967); A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 5 (1957).

85. See Graham v. Deere, 383 U.S. 1 (1966).

86. See, e.g., Parker v. Flook, 437 U.S. 584 (1978); Gottschalk v. Benson, 409 U.S. 63, 67 (1971).

87. 1 ANNALS OF CONGRESS 933–34 (1790). Washington’s entire statement demonstrates his support for “new and useful inventions” as well as scientific knowledge generally. Id. See DON K. PRICE, THE SCIENTIFIC ESTATE 85–89 (1965); Robert K. Merton, Science and the Social Order, in THE SOCIOLOGY OF SCIENCE 254, 265 (Norman W. Storer, ed., 1973). See also John W. Oliver, Science and the “Founding Fathers,” 48 SCI. MONTHLY 256, 256 (1939).

88. Alexander Hamilton, Report on the Subject of Manufacturers, in 1 THE WORKS OF ALEXANDER HAMILTON 226–36 (New York, Williams & Whiting, 1810).

89. Id. at 230–231.

90. See United States v. Butler, 297 U.S. 1 (1936).

91. SALVIO A. BEDINI, THINKERS AND TINKERS 349–51 (1975).

92. 1 ANNALS OF CONGRESS 171 (1789).

93. IRVING BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION 331–32 (1950). Dupree, without specific reference to the views of Madison, suggests that favorable congressional action on Churchman’s petition would have been based on the patent clause. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 9–11 (1957). Although the congressional debate does not resolve the matter, see 1 ANNALS OF CONGRESS 142–43, 170–73 (1789); 2. id. at 1845–46, 1885 (1791); 3 id. at 312–15, 431–32 (1792), this outcome seems unlikely. The wording of the patent clause, protecting discoveries by securing exclusive rights, makes the spending power a far more probable and persuasive basis for favorable congressional action on the petition.

94. SALVIO A BEDINI, THINKERS AND TINKERS 351 (1975).

95. See, e.g., Howard S. Miller, The Political Economy of Science, in NINETEENTH CENTURY AMERICAN SCIENCE: A REAPPRAISAL 98–99 (George H. Daniels, ed., 1972); Nathan Reingold, Introduction, in 1 THE NEW AMERICAN STATE PAPERS IN SCIENCE AND TECHNOLOGY 11–12 (1973).

96. One early federal-related scientific enterprise, the Smithsonian Institution, overcame constitutional objections in part because it was funded by a bequest. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 66–68, 76–90 (1957).

97. 12 Stat. 388 (1862) (current version at 7 U.S.C. § 2201 [1977]). See GEORGE H. DANIELS, SCIENCE IN AMERICAN SOCIETY 268–69 (1971); A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 151 (1957). Although the legislation creating the department is silent as to its constitutional basis, see 12 Stat. 387–88 (1862), the appropriations for the agency “would seem not to be justifiable except under a power to raise and spend money for ‘the general welfare.”’ Charles K. Burdick, Federal Aid Legislation, 8 CORNELL L. Q. 324, 329 (1923).

98. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 150 (1957); GEORGE H. DANIELS, SCIENCE IN AMERICAN SOCIETY 268–69 (1971); Reynold M. Wik, Science and American Agriculture, in SCIENCE AND SOCIETY IN THE UNITED STATES 81, 94, 96–97 (David D. Van Tassel & Michael G. Hall, eds., 1966). Because Congress created the colleges by donating public land to the states for that purpose, 12 Stat. 503–5 (1862), the constitutional basis for the program was Congress’ power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” U.S. CONST, art. IV, § 3, cl. 2. See Charles K. Burdick, Federal Aid Legislation, 8 CORNELL L. Q. 324, 324–27 (1923); Gordon B. Baldwin, Law in Support of Science: Legal Control of Basic Research Resources, 54 GEO. L. J. 559, 575 (1966). The land grant colleges established an influential pattern of federal-state cooperation. See, e.g., Don K. Price, The Scientific Establishment, 31 GEO. WASH. L. REV. 713, 719–20 (1963).

99. See, e.g., Reynold M. Wik, Science and American Agriculture, in SCIENCE AND SOCIETY IN THE UNITED STATES 81, 94, 96–97 (David D. Van Tassel & Michael G. Hall, eds., 1966); LUTHER G. TWEETEN, FOUNDATIONS OF FARM POLICY 118–209 (1970).

100. 297 U.S. 1 (1936).

101. Id. at 65–67.

102. See Alexander Hamilton, Report on the Subject of Manufacturers, in 1 THE WORKS OF ALEXANDER HAMILTON 226–36 (New York, Williams & Whiting, 1810) (Hamilton supported pecuniary rewards to encourage manufacturers, including rewards for “new inventions and discoveries … particularly those which relate to machinery.”); 297 U.S. at 66–67. The Court also cited Justice Story’s Commentaries, which rely in part on the Hamiltonian discussion of premiums. Id. at 66. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 389 n.2 (Boston, Hilliard, Grayd & Co., 1833). Later decisions have treated Butler as settling the dispute over the spending power in Hamilton’s favor. See, e.g., Buckley v. Valeo, 424 U.S. 1, 90–91 (1976); Helvering v. Davis, 301 U.S. 619, 640 (1937).

103. Brief for the United States, United Sates v. Butler, at 135, 153, 157–59 (1936)(No. 401).

104. 297 U.S. at 65.

105. See IRVING BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION 331–32 (1950); see also 1 ANNALS OF CONGRESS 171 (1789).

106. Moreover, the Supreme Court allows Congress considerable discretion in determining what programs serve the general welfare. See, e.g., Buckley v. Valeo, 424 U.S. 1, 90–91 (1976); Helvering v. Davis, 301 U.S. 619, 640–41 (1937).

107. See, e.g., Charles V. Kidd, American Universities and Federal Research, in THE SOCIOLOGY OF SCIENCE 394, 400 (Bernard Barber & Walter Hirsch, eds., 1962). The major state science activities in the nineteenth century, geological and geographic surveys, at times competed with the federal government for the services of leading scientists. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 92 (1957); Howard S. Miller, The Political Economy of Science, in NINETEENTH CENTURY AMERICAN SCIENCE: A REAPPRAISAL 100 (George H. Daniels, ed., 1972); GEORGE H. DANIELS, AMERICAN SCIENCE IN THE AGE OF JACKSON 21 (1968). But even with the surveys, federal-state cooperation was underway by 1843. See DANIEL J. ELAZAR, THE AMERICAN PARTNERSHIP 255–59 (1962). In agriculture science, another leading area of state science, federal-state cooperation was a central feature of the land-grant college arrangement. See, e.g., Don K. Price, The Scientific Establishment, 31 GEO. WASH. L. REV. 713, 719–20 (1963). See also A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 150 (1957); GEORGE H. DANIELS, SCIENCE IN AMERICAN SOCIETY, 268–69 (1971).

108. Robert V. Bruce, A Statistical Profile of American Scientists 1846–1876, in NINETEENTH CENTURY AMERICAN SCIENCE: A REAPPRAISAL 63, 94 (George H. Daniels, ed., 1972).

109. A survey of 1954 science spending in six state governments showed federal spending for science more substantial in both absolute and percentage terms. FREDERIC N. CLEAVELAND, SCIENCE AND STATE GOVERNMENT 24 (1959). A 1973 survey of all states showed that their combined spending for science accounted for no more than 6.5 percent of national research and development expenditures at a time when the federal government accounted for over 50 percent of those expenditures. NATIONAL SCIENCE FOUNDATION, RESEARCH AND DEVELOPMENT IN STATE GOVERNMENT AGENCIES viii (1975).

110. Basic themes in post-Civil War political and economic thought are summarized in David Donald, Uniting the Republic, in THE GREAT REPUBLIC 735–58 (Bernard Bailyn, et al., eds., 1977).

111. PAUL STUDENSKI & HERMAN T. KROOS, FINANCIAL HISTORY OF THE UNITED STATES 163 (2d ed. 1963).

112. The dispute basically concerned the somewhat overlapping functions of the government’s various survey agencies. Senator W. B. Allison headed a joint congressional commission that rejected the idea of a single Department of Science. A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 215–31 (1957).

113. Estimates of government spending for research and development, particularly for the years before 1953 when the National Science Foundation began collecting data, are both approximate and somewhat arbitrary. See MICHAEL D. REAGAN, SCIENCE AND THE FEDERAL PATRON 15 (1969). Testimony before the Allison commission showed, in 1884, spending of about $300,000 by the Interior Department’s Geological Survey, about $600,000 by the Treasury’s Coast and Geodetic Survey, and nearly $1 million by the Army Signal Service, which was in charge of meteorology. Testimony, Before the Joint Commission to Consider the Present Organizations of the Signal Service, et al., Mis. Doc. No. 82, 49th Cong., 1st Sess. 47, 61 n.22 (1886). In addition, 1884 agriculture science spending was over $100,000. See U.S. TREASURY, TREASURY DEFT DOC. NO. IIII, ACCOUNT OF THE RECEIPTS AND EXPENDITURES OF THE UNITED STATES FOR THE FISCAL YEAR ENDING JUNE 30, 1885 41–42 (1888). Similar amounts were spent on programs as diverse as the conservation efforts of the Fish commission and public health research in the military. See A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940237, 256–70(1957).

114. See A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 215–31 (1957).

115. LOUIS L. JAFFEE & NATHANIEL L. NATHANSON, ADMINISTRATIVE LAW 12 (1976) (“It is customary and appropriate to date the present era from the creation of the Interstate Commerce Commission in 1887…. The [commission] broke new ground in the federal establishment.”)

116. DON K. PRICE, THE SCIENTIFIC ESTATE 35 (1965).

117. MICHAEL D. REAGAN, SCIENCE AND THE FEDERAL PATRON 15 (1969). Historians of science in America often have emphasized the relatively limited achievements, by European standards, of nineteenth-century American science. See, e.g., I. Bernard Cohen, Science and the Growth of the American Republic, 38 REV. POL. 359, 370–84 (1976). Scientific progress depends on more than constitutional structures; historians have contended that nineteenth-century America was a young country that at times placed undue emphasis on practical as opposed to theoretical projects. Id. In recent years reassessments of nineteenth-century American science have begun to paint a somewhat different picture; in particular, increased recognition of the federal government’s science activities has revealed continuity between the founding fathers’ love of science and the present federal science establishment. See, e.g., Nathan Reingold, Introduction, in THE NEW AMERICAN STATE PAPERS IN SCIENCE AND TECHNOLOGY 11–14 (1973); GEORGE H. DANIELS, SCIENCE IN AMERICAN SOCIETY 21–26 (1971); George H. Daniels, Introduction, in NINETEENTH CENTURY AMERICAN SCIENCE: A REAPPRAISAL vii (George H. Daniels, ed., 1972); Charles E. Rosenberg, On Writing the History of American Science, in THE STATE OF AMERICAN HISTORY 184–85 (Herbert J. Bass, ed., 1970).

118. EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, BUDGET OF THE UNITED STATES GOVERNMENT: FISCAL YEAR 199443–44 (1993).

119. PRESIDENT’S COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY, RENEWING THE PROMISE: RESEARCH-INTENSIVE UNIVERSITIES AND THE NATION 3 (1992).

120. Even those conservatives who would reduce the federal role in many other fields generally support federal spending on basic scientific research. See CHARLES E. BARFIELD, SCIENTIFIC POLICY FROM FORD TO REAGAN: CHANGE AND CONTINUITY xi–xii, 132–39 (1982).

121. GORDON TULLOCK, PRIVATE WANTS, PUBLIC MEANS 224–32 (1970).

122. Dickson, Towards a Democratic Strategy for Science, SCI. FOR PEOPLE, July/Aug. 1984, at 6.

123. Miller v. California, 413 U.S. 15, 34 (1973).

124. See People v. Doubleday & Co., 297 N.Y. 687, 77 N.E. 2d 6 (1947), aff’d (by equally divided Court), 335 U.S. 848 (1948) (Wilson’s Memoirs of Hectate County obscene); Besig v. United States, 208 F.2d 142 (9th Cir. 1953) (Miller’s Tropic of Cancer and Tropic of Capricorn obscene). See generally William B. Lockhart & Robert C. McClure, Literature, the Law of Obscenity, and the Constitution, 38 MINN. L. REV. 295, 343–48 (1954).

125. Total 1993 appropriations for the arts through the National Endowment for the Arts were approximately $175 million, making it one of the smallest federal agencies. Joseph Fitchett, In U.S., the Economics of Culture, INT’L HERALD TRIB., Oct. 30, 1993. States also contribute to arts funding, with New York currently providing roughly $25 million. Id.

126. See, e.g., W. H. Adams, Public Aid for the Arts: A Change of Heart?, in CULTURAL POLICY AND ARTS ADMINISTRATION 3 (Stephen A. Greyser, ed., 1973); Robert Brustein, The Artist and the Citizen, NEW REPUBLIC, June 24, 1978, at 23.

127. D. NETZER, THE SUBSIDIZED MUSE 3 (1978). On the transition from royal to parliamentary support of art in Great Britain in the nineteenth and twentieth centuries, see JANET MINIHAN, THE NATIONALIZATION OF CULTURE (1977).

128. On Nazi science see ALAN D. BEYERCHEN, SCIENTISTS UNDER HITLER 40–50, 168–98 (1977); DANIEL S. GREENBERG, THE POLITICS OF PURE SCIENCE 91–92 (1967). On the Soviet Union experience see BERNARD BARBER, SCIENCE AND THE SOCIAL ORDER 82–83 (1952).

129. See Joshua Lederberg, The Freedoms and Control of Science Notes from an Ivory Tower, 455 CAL. L. REV. 596–601 (1972).

130. Miller v. California, 413 U.S. 15, 34 (1973).

131. Buckley v. Valeo, 424 U.S. 1, 23–29 (1976).

132. Id. at 26–27.

133. Id. at 235, 246–52 (Burger, C. J., concurring in part and dissenting in part); id. at 290–94 (Rehnquist, J., concurring in part and dissenting in part).

134. Id. at 248; but see id. at 93, n.127.

135. Id. at 97 n.131. See also Mountain States Legal Foundation v. Denver School Dist. #1, 459 F. Supp. 357 (C.D. Colo. 1978) (First Amendment prohibits school board from spending public funds in attempt to defeat proposed state constitutional amendment); Anderson v. Boston, 380 N.E. 2d 628, 639 (Mass. 1978), appeal dismissed, 439 U.S. 1059 (1979) (“Fairness and the appearance of fairness [in the election process] are assured by a prohibition against public tax revenues to advocate a position which certain taxpayers oppose.”). But see Laurence H. Tribe, Toward a Meta-theory of Free Speech, 10 S. CAL. L. REV. 237, 245 n.34 (1978).

136. Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759 (1991).

137. Board of Trustees of the Leland Stanford Junior University v. Sullivan, 773 F. Supp. 472 (D.D.C. 1991), appeal dismissed as moot, No. 91–5392 (D.C. Cir. 1992). The case became moot before the appellate court could decide it when the contract in question ended.

138. Id. at 477.

139. Id. at 476, n.13.

140. Id. at 477.

141. Id. at 477, 478.

142. Id. at 478.

Notes to Chapter 4
1. National Science Foundation Act of 1950, Pub. L. no. 81–507, 64 stat. 149 (codified as amended at 42 U.S.C. §§ 1861–84 [1982]). I presented an earlier version of portions of this chapter in Steven Goldberg, The Reluctant Embrace: Law and Science in America, 75 GEO. L. J. 1341 (1987).

2. 42 U.S.C. §§ 1862(a)(1); 1873 (1982).

3. Research-and-development authority for the Defense Department is set forth at 10 U.S.C. § 2358 (1982), and for the Department of Energy at 42 U.S.C. § 7112(5) (1982). The statutory framework for the research done by the various institutes (such as the National Cancer Institute) that are part of the National Institutes of Health is described in Grassetti v. Weinberger, 408 F. Supp. 142 (N.D. Cal. 1976).

4. Lincoln v. Vigil, 113 S. Ct. 2024 (1993).

5. Id. at 2031.

6. Lawrence Feinberg, Colleges Bypass Agencies to Get Federal Funds, WASH. POST, June 5, 1984, at Ai, col. 1.

7. Id. The Post article focused on efforts by Georgetown and Catholic Universities to obtain money from Congress. For another example, see Daniel S. Greenberg, Keyworth and Fuqua Volley on Fork-Barrel R&D, SCI. & GOV’T REP., Oct. 1, 1984, at 5 (describing exchange of correspondence wherein executive official alleged “narrowly based political considerations” used by Congress to determine location of federally funded computer center).

8. See, e.g., JOSEPH P. MARTINO, SCIENCE FUNDING: POLITICS AND PORKBARREL (1992).

9. Pork: It’s Academic, WASH. POST, July 3, 1993, at A22.

10. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, FEDERALLY FUNDED RESEARCH: DECISIONS FOR A DECADE 87–94 (1991).

11. Id. at 87.

12. Id. at 90.

13. Pork: It’s Academic, WASH. POST, July 3, 1993, at A22.

14. PRESIDENTS COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY, RENEWING THE PROMISE: RESEARCH-INTENSIVE UNIVERSITIES AND THE NATION 24 (1992).

15. JOSEPH P. MARTINO, SCIENCE FUNDING: POLITICS AND PORKBARREL 385 (1992).

16. High end estimates by the Chronicle of Education put “earmarking” in 1993 at $763 million out of a research and development budget of $76 billion. Cf. Pork: It’s Academic, WASH. POST, July 3, 1993, at A22, and EXECUTIVE OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED STATES GOVERNMENT: FISCAL YEAR 1994 43 (1993).

17. JOSEPH P. MARTINO, SCIENCE FUNDING: POLITICS AND PORK-BARREL 385 (1992).

18. BERNARD SCHWARTZ, ADMINISTRATIVE LAW 41–52 (1991).

19. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 675 (198) (Rehnquist, J., concurring in the judgment).

20. The quotation from Jefferson comes from a letter he wrote to Hugh Williamson. See THE WORKS OF THOMAS JEFFERSON 458–59 (Paul L. Ford, ed., Knickerbocker Press, 1904). The evolution of the patent office is described in A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 11–14, 46–47(1957).

21. JUDITH AREEN, ET AL., LAW, SCIENCE AND MEDICINE 528 (1984).

22. DENNIS J. RILEY, 1 FEDERAL CONTRACTS, GRANTS, AND ASSISTANCE 207–211 (1983).

23. See John J. Grossbaum, Federal Support of Research Projects Through Contracts and Grants: A Rationale, 19 AM. U. L. REV. 423, 427 (1970) (attempts to distinguish between grants and contracts rest on characterizations that “are not particularly meaningful”); Leroy Kahn, The Lawyer and the Scientific Community: Procuring Basic Research, 29 LAW & CONTEMP. PROBS. 631, 637 (1964) (terming Defense Department’s manner of letting military research by contract and letting research for “peaceful purposes” via grants a “somewhat synthetic” distinction).

24. Kornhauser, for example, reports that a government scientist, speaking of a private firm with which he was working, said “their research people will try to get the production people to accept our ideas,” WILLIAM KORNHAUSER, SCIENTISTS IN INDUSTRY 184 (1962).

25. Steven Goldberg, Controlling Basic Science: The Case of Nuclear Fusion, 68 GEO. L. J. 683, 711 (1980).

26. Don K. Price, Endless Frontier or Bureaucratic Morass?, DAEDALUS, Spring 1978, at 87.

27. C. P. SNOW, THE TWO CULTURES AND A SECOND LOOK 17 (1963).

28. Steven Goldberg, Controlling Basic Science: The Case of Nuclear Fusion, 68 GEO. L. J. 683, 707 (1980).

29. BERNARD ROSHCO, NEWSMAKING 16, 18–19 (1975).

30. WALTER LIPPMAN, PUBLIC OPINION 341 (1950).

31. RICHARD A. RETTIG, CANCER CRUSADE 300–302, 317–25 (1977).

32. Military Procurement Authorization Act, Pub. L. No. 91–121, § 203, 83 Stat. 204, 206 (1969).

33. Id.

34. Military Procurement Authorization Act, Pub. L. No. 91–441, § 203(a), 84 Stat. 905, 906 (1970).

35. See Stanton A. Glantz & N. V. Albers, Department of Defense R&D in the University, 186 SCIENCE 706 (1974) (limited impact of the Mansfield Amendment).

36. See, e.g., A. HUNTER DUPREE, SCIENCE IN THE FEDERAL GOVERNMENT: A HISTORY OF POLICIES AND ACTIVITIES TO 1940 215–20 (1957).

37. Calvin Bellamy, Item Veto: Shield against Deficits or Weapon of Presidential Power? 22 VAL. U. L. REV. 557, 558 (1988). See also Steven Goldberg, Science Spending and Seretonin, in THE NEUROTRANSMITTER REVOLUTION: SEROTONIN, SOCIAL BEHAVIOR AND THE LAW 222 (Rogers D. Masters and Michael T. McGuire, eds., 1994).

38. See, e.g., Paul R. Q. Wolfson, Is a Presidential Item Veto Constitutional? 96 YALE L.J. 838 (1987).

39. Hutchinson v. Proxmire, 443 U.S. Ill at 116 (1979). See also Steven Goldberg, Controlling Basic Science: The Case of Nuclear Fusion, 68 GEO. L. J. 683, 707 (1980).

40. See generally BERNARD SCHWARTZ, ADMINISTRATIVE LAW 585–668 (2d ed. 1984).

41. A major opinion enunciating the modern role of courts in reviewing agency action is Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971).

42. See generally SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 61–79 (1990).

43. Id.

44. Id. See also Charles McCutchen, Peer Review: Treacherous Servant, Disastrous Master, in 94 TECH. REV. 28 (1991); Rosemary Chalk, Impure Science: Fraud, Compromise, and Political Influence in Scientific Research, 96 TECH. REV. 69 (1993).

45. BRUCE L. R. SMITH, AMERICAN SCIENCE POLICY SINCE WORLD WAR II 179–184 (1990).

46. Jennie Moehlmann & Julie Ann Miller, OSTP’s Gibbons A Favorite on Capitol Hill, 43 BIOSCIENCE 394 (1993).

47. SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 61–83 (1990).

48. Id. at 62 (citing STEPHEN LOCK, A DIFFICULT BALANCE: EDITORIAL PEER REVIEW IN MEDICINE 4 [1985]).

49. See, e.g., Daniel S. Greenberg, Case against Gallo Faces Tough Appeals Process, 23 SCI. & GOV’T REPT. 1, 3–5 (1993).

50. Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969).

51. Id. at 440–41.

52. Id. at 439.

53. 5 U.S.C. § 702 (1982) (“person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency within the meaning of a relevant statute, is entitled to judicial review”). The Kletschka court observed, however, that this right to review does not apply “‘to the extent that … [the] action is committed to agency discretion by law.’ “411 F.2d at 442 (quoting 5 U.S.C. § 701 [a] [1982]). For a later interpretation of this provision, see Heckler v. Chaney, 470 U.S. 821, 832–33 (1985) (agency decision not to undertake enforcement action presumptively unreviewable). This provision was also invoked to bar review of how an agency spends money from a lump-sum appropriation. See Lincoln v. Vigil, 113 S. Ct. 2024 (1993).

54. 411 F.2d at 443.

55. Id. at 444.

56. Apter v. Richardson, 361 F. Supp. 1070 (N.D. 111. 1973), rev’d, 510 F.2d 351 (7th Cir. 1975).

57. Id. at 1071–72.

58. Id. at 1073.

59. Apter v. Richardson, 510 F.2d 351, 354–55 (7th Cir. 1975).

60. Id. at 355.

61. Id.

62. The opinion of the trial court dismissing the case after remand is unpublished.

63. Grassetti v. Weinberger, 408 F. Supp. 142 (N.D. Cal. 1976).

64. Id. at 147.

65. Id. at 150.

66. Id.

67. Grassetti v. Weinberger, 408 F. Supp. 142, 151 (N.D. Cal. 1976).

68. Marinoff v. HEW, 456 F. Supp. 1120 (S.D.N.Y. 1978), aff’d mem., 595 F.2d 1208, cert, denied, 442 U.S. 913 (1979).

69. 456 F. Supp. at 1121.

70. Id.

71. Id. at 1122.

72. Ujvarosy v. Sullivan, No. C-92–4538–EFL, 1993 U.S. Dist. LEXIS 6330 (N.D. Cal. May 5, 1993).

73. Id. The court nonetheless offered the further opinion that the claim was “frivolous.” Id.

74. Cass R. Sunstein, Administrative Law After Chevron, 90 COLUM. L. REV. 2071, 2072–73 (1990).

75. JOHN CIBINIC & RALPH C. NASH, GOVERNMENT CONTRACT CLAIMS 39, 263–66 (1981).

76. ANDREW K. GALLAGHER, THE LAW OF FEDERAL NEGOTIATED CONTRACT FORMATION 329, 342–77 (1981). In general, it is hard to get the courts to reverse agency contract awards. JOHN CIBINIC & RALPH C. NASH, GOVERNMENT CONTRACT CLAIMS 266 (1981).

77. JERRY L. MASHAW, BUREAUCRATIC JUSTICE 18, 57 n.6 (1983); see Charles H. Koch, Jr. & David A. Koplow, The Fourth Bite at the Apple: A Study of the Operation and Utility of the Social Security Administration’s Appeals Council, 17 FLA. ST. U. L. REV. 199, 226 (1990) (Both the number of federal appeals and the reversal rate have been variable from year to year; for example, in 1982, thirteen thousand new federal appeals were filed, with a reversal rate of 20 percent, and in 1984, twenty-six thousand new appeals were filed, with a reversal rate was 57 percent).

78. Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964).

79. Lashen v. Secretary of Health and Human Servs., No. 92–3936, 1993 U.S. App. LEXIS 23976 (6th Cir. Sept. 15, 1993).

80. Id.

81. For contrasting views on the merits of judicial review in the social security disability system, see JERRY L. MASHAW, BUREAUCRATIC JUSTICE 1 (1983), and Lance Liebman and Richard B. Stewart, Bureaucratic Vision, 96 HARV. L. REV. 1952 (1983).

82. BERNARD SCHWARTZ, ADMINISTRATIVE LAW 457–59 (2d ed. 1984).

83. For an earlier version of the following discussion of Kafka see Steven Goldberg, The Central Dogmas of Law and Science, 36 J. LEGAL EDUC. 378 (1986).

84. ERNST PAWEL, THE NIGHTMARE OF REASON: A LIFE OF FRANZ KAFKA 188 (1984).

85. See MICHAEL POLANYI, SCIENCE, FAITH AND SOCIETY 63–65 (1946).

86. Stephen Cole, et. al., Chance and Consensus in Peer Review, 214 SCIENCE 881 (1981).

Notes to Chapter 5
1. Bryan R. Wilson, Reflections on a Many Sided Controversy, in RELIGION AND MODERNIZATION 199–200 (Steve Bruce, ed., 1992).

2. See, e.g., WALTER PARCHOMENKO, SOVIET IMAGES OF DISSIDENTS AND NONCONFORMISTS 82–83 (1986).

3. MARGARITA MATHIOPOULOS, HISTORY AND PROGRESS: IN SEARCH OF THE EUROPEAN AND AMERICAN MIND 151 (1989).

4. Cf. J. B. BURY, THE IDEA OF PROGRESS (1932); and ROBERT NISBET, HISTORY OF THE IDEA OF PROGRESS (1980).

5. DAVID H. HOPPER, TECHNOLOGY, THEOLOGY AND THE IDEA OF PROGRESS 36–37 (1991).

6. MARGARITA MATHIOPOULOS, HISTORY AND PROGRESS: IN SEARCH OF THE EUROPEAN AND AMERICAN MIND III (1989).

7. MARGARET MATHIOPOULOS, HISTORY AND PROGRESS: IN SEARCH OF THE EUROPEAN AND AMERICAN MIND 151 (1989) (citing RALF DAHRENDORF, DIE ANGEWANDTE AUFLAURUNG [1968]).

8. M. A. DE WOLFE HOWE, THE GARDEN AND THE WILDERNESS 6, 25–26(1965).

9. Everson v. Board of Education, 330 U.S. 1 (1947); School District v. Schempp, 374 U.S. 203 (1963).

10. Everson v. Board of Education, 330 U.S. 1 (1947). The Court has held that the Fourteenth Amendment’s due process clause, enacted after the Civil War, makes the First Amendment applicable to the states. Id.

11. An earlier version of some of the following portions of this chapter appeared in Steven Goldberg, The Constitutional Status of American Science, 1979 U. ILL. L. FOR. 1 (1979).

12. THOMAS PRINCE, EARTHQUAKES: THE WORKS OF GOD AND TOKENS OF HIS JUST DISPLEASURE 23 (Boston, D. Fowle & Z. Fowle, 1755). see also Eleanor M. Tilton, Lightning-Rods and the Earthquake of 1755 13 NEW ENG. Q. 85 (1940). Prince essentially reprinted a sermon first published in 1727 and added an appendix. Id. at 85–86.

13. Eleanor M. Tilton, Lightning-Rods and the Earthquake of 1755, 13 NEW ENG. Q. 85, 86–89 (1940). See also BROOKE HINDLE, THE PURSUIT OF SCIENCE IN REVOLUTIONARY AMERICA 95 (1956); DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 258 (1958).

14. Eleanor M. Tilton, Lightning-Rods and the Earthquake of 1755, 13 NEW ENG. Q. 85, 94 (1940). JOHN WINTHROP, TWO LECTURES ON COMETS 21–44 (1759).

15. 1 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 18 (1969); ERNST CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT 161–62 (1960).

16. ERNEST CASSARA, THE ENLIGHTENMENT IN AMERICA 31–32 (1975). Caldwallader Colden, whose attacks on the clergy are cited by Cassara, made his greatest contributions to the field of botany. DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 163 (1958).

17. See, e.g., Harry H. Clark, The Influence of Science on American Ideas: From 177s to 1809, 35 TRANSACTIONS WIS. ACAD. 307–14 (1943); 1 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 200 (1969).

18. The Remonstrance is reprinted as an appendix to Everson v. Board of Education, 330 U.S. 1, 63, 67 (1947).

19. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 159–60 (W. Peden, ed., 1955).

20. LEONARD W. LEVY, FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 100 (1960); GEORGE F. SENSEBAUGH, MILTON IN EARLY AMERICA viii (1964).

21. CHRISTOPHER HILL, MILTON AND THE ENGLISH REVOLUTION 53–54 (1977); 1 DAVID MASON, THE LIFE OF JOHN MILTON 788, 821 (Peter Smith, ed., 2d ed. 1946) (1877).

22. See, e.g., ZECHARIAH CHAFFEE, FREE SPEECH IN THE UNITED STATES 3, 29, 298, 325, 498 (1967); LEONARD W. LEVY, FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 95–97 (1960).

23. JOHN MILTON, AREOPAGITICA 40 (R. Jebb, ed., AMS Press, 1971) (1918).

24. U.S. CONST, amend. I.

25. To a certain extent colonial Puritanism was compatible with science, albeit not as fully as Deism. See, e.g., Harry H. Clark, The Influence of Science on American Ideas: From 1775 to 1809, 35 TRANSACTIONS WIS. ACAD. 307–14 (1943); DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 222 (1958); Frederick G. Kilgour, The Rise of Scientific Activity in Colonial New England, 22 YALE J. BIOLOGY & MED. 123 (1949); Leonard Tucker, President Thomas Clap of Yale College: Another “Founding Father” of American Science, in EARLY AMERICAN SCIENCE 99 (Brooke Hindle, ed., 1976); CHARLES S. ROSENBERG, NO OTHER GODS: ON SCIENCE AND AMERICAN SOCIAL THOUGHT 2–4 (1976); DIRK J. STRUIK, YANKEE SCIENCE IN THE MAKING 30 (1948).

26. See, e.g., Brooke Hindle, The Quaker Background and Science in Colonial Philadelphia, 46 ISIS 243 (1955); see also ALAN D. BEYERCHEN, SCIENTISTS UNDER HITLER 27–39 (1977).

27. This analogy has been noted by many, including Freud in 1917. See BRUCE MAZLISH, THE FOURTH DISCONTINUITY: THE CO-EVOLUTION OF HUMANS AND MACHINES (1993).

28. MASAO WATANABE, THE JAPANESE AND WESTERN SCIENCE 67 (1990).

29. Edwin O. Reischauer, Foreword, to MASAO WATANABE: THE JAPANESE AND WESTERN SCIENCE ix-x (1990).

30. Of course, many Christians today accept evolution while retaining their faith. See, e.g., RAYMOND A. EVE & FRANCIS B. HARROLD, THE CREATIONIST MOVEMENT IN MODERN AMERICA 3–4 (1991).

31. Scopes v. State, 289 S.W. 363 (1927).

32. The nonestablishment clause was first applied to the states in Everson v. Board of Education, 330 U.S. 1 (1947).

33. Scopes v. State, 289 S.W. 363 (1927).

34. See, e.g., Rollin L. Hartt, What Lies Beyond Dayton, NATION, July 22, 1925, at 111–12. See generally SHELDON NORMAN GREBSTEIN, MONKEY TRIAL: THE STATE OF TENNESSEE VS. JOHN THOMAS SCOPES (1960).

35. See, e.g., Amateur Dramatics at Dayton, CHRISTIAN CENTURY, July 30, 1925, at 969–70.

36. Scopes v. State, 289 S.W. 363, 367.

37. Id.

38. Id.

39. 393 U.S. 97(1968).

40. The Arkansas statute was similar to the Tennessee statute involved in the Scopes case, Scopes v. State, 289 S.W. 363 (1927). See Harry A. Kalven, A Commemorative Case Note: Scopes v. State, 27 U. CHI. L. REV. 505, 510 n.14 (1960); Thomas I. Emerson & Herbert Haber, The Scopes Case in Modern Dress, 27 U. CHI. L. REV. 522 (1960); Malcolm P. Sharp, Science, Religion, and the Scopes Case, 27 U. CHI. L. REV. 529 (1960). See also Note, Constitutional Law: Validity of the Tennessee Anti-Evolution Law, 5 TENN. L. REV. 242 (1927).

41. Brief of the National Education Ass’n of the United States and the National Science Teachers Ass’n as Amici Curiae at 13a, Epperson v. Arkansas, 393 U.S. 97 (1968) (No. 7).

42. Brief for Appellants at 16, Epperson v. Arkansas, 393 U.S. 97 (1968) (No. 7).

43. Transcript of Oral Argument at 17, Epperson v. Arkansas, 393 U.S. 97 (1968)(No. 7). Counsel for Arkansas replied, “I would, first of all, hope that the Courts and the people would think that would be an unreasonable encroachment.” Id.

44. See 393 U.S. at 102 nn.9 & 10.

45. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 229 n.10, 230, 592, 836–37, 867 (1978); Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95, 120 n.125 (1971); John H. Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L. J. 1205, 1318 (1970); Frederic S. LeClercq, The Monkey Laws and the Public Schools: A Second Consumption?, 27 VAND. L. REV. 209, 217 (1974); Laurence H. Tribe, The Supreme Court 1972 Term: Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 22 n.103 (1973).

46. 393 U.S. at 107–9.

47. In Board of Education v. Allen, 392 U.S. 236 (1968), for example, the legislature enacted a textbook loan program that included parochial schools. The Court’s entire discussion of religious purpose consists of the following: “The express purpose of {701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose.” Id. at 243. In Epperson, however, the Court refused to accept the argument that the anti-evolution statute might have been motivated by a desire to keep a controversial subject out of the schools. 393 U.S. at 112–13 (Black, J., concurring).

48. 393 U.S. at 107.

49. 393 U.S. at 101, 102.

50. Smith v. State, 242 So. 2d 692 (Miss. 1970).

51. See Daniel v. Waters, 515 F.2d 485, 487, 489 (6th Cir. 1975).

52. Id. at 489–91. The court found that “the result of this legislation is a clearly defined preferential position for the biblical version of creation as opposed to any account of the development of man based on scientific research and reasoning.” Id. at 489. In Steele v. Waters, 527 S.W. 2d 72 (Tenn. 1975), the Supreme Court of Tennessee, following the Sixth Circuit decision, agreed that the Tennessee statute violated the establishment clause.

53. Moore v. Gaston County Board of Education, 357 F. Supp. 1037, 1038 (W.D.N.C. 1973).

54. Id. at 1038–39.

55. Id. at 1043.

56. Id. at 1042–43.

57. For an early discussion of the creationist endeavor, see Wendell R. Bird, Freedom of Religion and Science Instruction in Public Schools, 87 YALE L. J. 515 (1978).

58. NATIONAL ACADEMY OF SCIENCES, SCIENCE AND CREATIONISM (1984).

59. Edwards v. Aguillard, 482 U.S. 578 (1987).

60. Id. at 581.

61. Id. at 596, n.18.

62. Id. at 593.

63. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 168–169 (1993).

64. See Leviticus 18:22 (“Thou shalt not lie with mankind as with womankind, it is a abomination”). See also id. 18:23, 20:13, 15, 16; Romans 1:27. For a discussion of the religious origins of the laws against homosexuality see, e.g., Note, Sexual Freedom for Consenting Adults: Why Not?, 2 PAC. L. J. 206, 210–12 (1971); Note, Sodomy Statutes: A Need for Change, 13 S.D. L. REV. 384–85 (1968).

65. See, e.g., MORRIS PLOSCOWE, SEX AND THE LAW 184 (1962); Note, Sexual Freedom for Consenting Adults: Why Not?, 2 PAC. L. J. 206, 210, 211 n.29 (1971); Note, Sodomy Statutes: A Need for Change, 13 S.D. L. REV. 385 (1968).

66. See McGowan v. Maryland, 366 U.S. 420, 431–37, 442 (1961).

67. See, e.g., Note, Deviate Sexual Behavior: The Desirability of Legislative Proscription, 30 ALB. L. REV. 291, 293–94 (1966).

68. See generally Note, Sexual Freedom for Consenting Adults: Why Not?, 2 PAC. L.J. 206 (1971).

69. See, e.g., Caster v. State, 500 S.W.2d 368, 371–72 (1973); Connor v. State, 490 S.W.2d 114, 115 (1973); State v. Rhinehart, 424 P.2d 906, 910 (1967).

70. Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199 (E.D. Va. 1975), aff’d mem., 425 U.S. 901 (1976).

71. Id. at 1202, n.2. See also Farr v. Mancusi, 70 Misc. 2d 830, 832 (N.Y. County Ct. 1972); State v. Stokes, 163 S.E. 2d 770, 774 (1968).

72. Bowers v. Hardwick, 478 U.S. 186 (1986).

73. Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir. 1990).

74. Peolza v. Capistrano Unified School District, 782 F. Supp. 1412 (1992).

75. Id. at 1414, n.1.

76. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 161 (1993).

77. Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987). The plaintiffs in this case challenged much more than just the teaching of evolution. See Naomi M. Stolzenberg, “He Drew a Circle That Shut Me Out”: Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 HARV. L. REV. 581 (1993).

78. Id. at 1065.

79. Id. at 1064.

80. Roger Finke, An Unsecular America, in RELIGION AND MODERNIZATION 148–49 (Steve Bruce, ed., 1992).

81. Id. at 153.

82. Id. at 152.

83. Peter L. Berger, Religion in a Revolutionary Society, in AMERICA’S CONTINUING REVOLUTION 150 (1975).

84. Id. at 145–146. See also ROBERT N. BELLAH, THE BROKEN COVENANT: AMERICAN CIVIL RELIGION IN TIME OF TRIAL (2d ed. 1992).

85. Peter L. Berger, Religion in a Revolutionary Society, in AMERICA’S CONTINUING REVOLUTION 143 (1975). There is dispute about whether Eisenhower actually made this statement. See Richard J. Neuhaus, Who Needs God, NAT’L REV., Nov. 10, 1989, at 52.

86. Proclamation 6508—Thanksgiving Day, 1992, 28 WEEKLY COMP. PRES. DOC. 2312, 2313 (Nov. 20, 1992).

87. JOHN T. NOONAN, JR., THE BELIEVERS AND THE POWERS THAT ARE: CASES, HISTORY, AND OTHER DATA BEARING ON THE RELATION OF RELIGION AND GOVERNMENT 411 (1987).

88. Id. at 410–11.

89. Id. at 411.

90. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993).

91. Id. at 2231.

92. Lynch v. Donnelly, 465 U.S. 668 (1984).

93. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).

94. McGowan v. Maryland, 366 U.S. 420 (1961).

95. Bowers v. Hardwick, 468 U.S. 186 (1986).

96. JOHN RAWLS, POLITICAL LIBERALISM 145–149 (1993).

97. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 273–74 (1993).

98. Id. at 266.

99. Id. at 274.

100. DAVID H. HOPPER, TECHNOLOGY, THEOLOGY, AND THE IDEA OF PROGRESS 60, 63, 75–76 (1991); CHRISTOPHER LASCH, THE TRUE AND ONLY HEAVEN: PROGRESS AND ITS CRITICS 41 (1991); EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE 61 (1973).

101. CHRISTOPHER LASCH, THE TRUE AND ONLY HEAVEN: PROGRESS AND ITS CRITICS 43 (1991).

102. DAVID H. HOPPER, TECHNOLOGY, THEOLOGY, AND THE IDEA OF PROGRESS 114 (1991).

103. See generally DAVID H. HOPPER, TECHNOLOGY, THEOLOGY, AND THE IDEA OF PROGRESS (1991).

104. See, e.g., JEFFRIE G. MURPHY, EVOLUTION, MORALITY, AND THE MEANING OF LIFE (1982).

105. Paul L. Holmer, Evolution and Being Faithful, 84 CHRISTIAN CENTURY 1491, 1494 (1967)


From Culture Clash: Law and Science in America, by Steven Goldberg (New York University Press, 1994)

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