WE’VE BEEN giving considerable thought to the recent plague of anti-science, anti-evolution, pro-creationism legislation which is being promoted by the neo-theocrats at the Discovery Institute’s Center for Science and Culture (a/k/a the Discoveroids), based on their Academic Freedom Act.
Things may look bleak, but your Curmudgeon has fashioned a remedy.
It’s too late for Louisiana, of course, which has now embraced full-blown creationism; but if this kind of bill is considered in any other state, all we need is one clear-headed legislator to introduce an amendment like this to be added to the bill. We’re obviously skipping some drafting details, but legislators have professional staff for such technical matters.
WHEREAS the First Amendment of the US Constitution says [quote Establishment Clause]; and
WHEREAS the Constitution of this state says [quote state equivalent to Establishment Clause, if any]; and
WHEREAS the US Supreme Court has ruled that [staff can find what they need here: Ten Major Court Cases about Evolution and Creationism to show that teaching creationism or creation science in state schools violates the Establishment Clause]; and
WHEREAS intelligent design has been conclusively demonstrated to be creationism in Kitzmiller v. Dover Area School District; and
WHEREAS the failure to pass this amendment will indicate that the legislature, although aware of the foregoing, nevertheless refuses to prevent, and may actually intend, teaching religious doctrines in violation of the Establishment Clause;
NOW THEREFORE:
Notwithstanding anything herein to the contrary, nothing in this law mandates, authorizes, permits, or excuses the teaching of creationism, creation science, intelligent design, or any other religious doctrines as if they were scientific subjects.
For those who may not appreciate the judicial effect of a rejected amendment, check out Statutory interpretation for a generalized treatment of the subject, and which says:
To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.
A relevant illustration of the effect of a rejected amendment can be seen regarding the “No Child Left Behind” law, to which then Senator Santorum had offered an amendment requiring that the “controversy” about intelligent design should be taught along with evolution. The Senate rejected the amendment, which means that the law does not require ID to be taught, even though ID supporters subsequently slipped some favorable ID language in the committee reports. See: Santorum Amendment Stripped from Education Bill. For more discussion of that matter, see: Analysis of the “Santorum language”.
Therefore, if a legislature accepts the Curmudgeon’s Amendment, then creationism goes nowhere — indeed, there’s no reason for the creationists to bother with an “academic freedom” bill if it includes such an amendment. If the legislators reject the amendment and pass their bill anyway, thus encouraging creationism or ID to be taught, then the legislation will undoubtedly fail in the courts because now there’s a clear record of the bill’s religious intent.
In other words, this is a legislative doomsday machine — once introduced as an amendment to a creationism bill, it destroys that bill whether it’s accepted or rejected.
[The Curmudgeon humbly acknowledges your applause.]
We can’t prevent legislators from behaving like fools, but we can hope that throughout the federal judiciary we have judges who are devoted to the Constitution.
Addendum: Thanks to the suggestions of an astute observer, we deleted what had been section (2) of the Curmudgeon’s Amendment and preserved its meaning in a newly-added final “whereas” clause.
Copyright © 2009. The Sensuous Curmudgeon. All rights reserved.
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The Sensuous Curmudgeon 
“Statutory Creationism Vaccine!”
BRAVO!
Longie says: “BRAVO!”
It’s a legislative doomsday machine. Once introduced as an amendment to a creationism bill, it destroys that bill whether it is accepted or rejected. [Hey, I like that so much I added it to the original post.]
BRAVO^2!!
For this to work, it must be in the hands of rational legislators in each of the 49 thus-far unafflicted states.
retiredsciguy says: “For this to work, it must be in the hands of rational legislators in each of the 49 thus-far unafflicted states.”
I can probably get it to the “Citizens for Science” groups in the affected states, if such groups exist in those states. They should have the necessary local contacts. And there are others with whom I’m in contact. The risk is in sounding like some kook who thinks he has the magic bullet. For the moment I need to mull it over.
List of state-level Citizens for Science groups.
Thanks, Cheryl. I’ll let it sit for a while. As I said, I don’t want to run around breathlessly claiming that I’ve got “The Answer.”
Since the party in power in a state legislature controls what reaches the floor for debate and vote, it’s doubtful that this amendment would see the light of day in a legislature that is intent on passing an anti-evolution bill. But I’m not a politician and I might be wrong on this. I hope I am. Maybe the various states have various rules concerning the introduction of an amendment.
Nonetheless, the amendment is a stroke of genius that deserves wide distribution.
Further analysis is needed.
For one thing, I do not see how an unpassed amendment to legislation can bind the courts to a particular interpretation of the legislative intent of the failure to pass the legislation. For example, on could just as well embed a poison pill passeage in any amendment, that reads:
Then, if you fail to pay your taxes, and the IRS hauls you into court, you can’t pull out the text of an UNPASSED legislative amendment and offer it as proof the legislature exempted you from paying taxes.
IOW, the idea you are proposing has the effect of law if it is NOT adopted by the legislature. But the constitution requires bills to be passed, to become law. In short, I don’t see how this survives a constitutional challenge.
The fact remains that failure to accept an amendment may occur for a multitude of reasons; language in the failed amendment cannot bind the courts to a particular interpretation of legislative intent for that failure precisely because it wasn’t passed.
To put it on logical grounds, to pass legislation is an affirmative act; to NOT pass legislation is the lack of an affirmative act.
Longie says: “To put it on logical grounds, to pass legislation is an affirmative act; to NOT pass legislation is the lack of an affirmative act.”
The way it works is that if a court has to determine whether, say, X is intended by an ambiguously worded law, it looks to the legislative history to see if X got discussed in committee hearings, etc. What was discussed, but not included in the bill, is sometimes very informative. (This is why, for example, the Federalist Papers are so often cited by courts. Although not formally “committee hearings,” they certainly show what Hamilton and Madison were thinking and what the Convention intended.)
A court will look to various revisions the bill went through. That stuff is preserved in official state records, so it’s all good evidence. If X were once part of the bill, but then got removed, that indicates the legislature’s intent NOT to include X in the final law. It works this way for amendments too, whether accepted or rejected.
The lawyer who is benefited by that kind of history can tell the court: “The legislature could have specifically included X in the bill if they wanted to. They know how to write laws. And look here — X was specifically mentioned in this amendment, but they rejected the amendment. So clearly, your honor, this bill doesn’t include X, and therefore my client (who does a lot of X) is guilty of nothing.”
Longie, inspired by your comment, I added a link and a few lines to the original post about statutory interpretation.
I tweaked the original post yet again, after finding a great illustration of the effect of a rejected amendment. It’s the Santorum amendment to the “No Child Left Behind” bill, which would have required the ID controversy to be taught, but the Senate rejected it.
Brilliant idea Curmudgeon. Now to just rally some troops.
Darwin’s Teapot says: “Brilliant idea Curmudgeon. Now to just rally some troops.”
Thanks, Teapot. I’m getting the word out, in my Curmudgeonly way. But if you want to spread it around, please do so.