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Synopsis
Is scientific information misused by this country’s court system and lawmakers? Today more than ever before, lawyers, politicians, and government administrators are forced to wrestle with scientific research and to employ scientific thinking. The results are often less than enlightened.
In Legal Alchemy, David Faigman explores the ways the American legal system incorporates scientific knowledge into its decision making. Praised by both legal and scientific communities when it first appeared in hardcover, Legal Alchemy shows how science has been used and misused in a variety of settings, including
• The Courtroom—from the O. J. Simpson trial to the Dow Corning silicone breast implant lawsuit to landmark cases such as Roe v. Wade.
• The Legislature—where Congress uses scientific information to help enact legislation about clean air, cloning, and government science projects like the space station and the superconducting super collider.
• Government Agencies—who use science to determine policy on a variety of topics, from regulating sport utility vehicles to reintroducing gray wolves to Yellowstone National Park.
As Faigman describes these and other important cases, he provides disturbing evidence that many judges, juries, and members of Congress simply don’t understand the science behind their decisions. Finally, he offers suggestions on how the science and legal professions can overcome their miscommunication and work together more effectively.
In Legal Alchemy, David Faigman explores the ways the American legal system incorporates scientific knowledge into its decision making. Praised by both legal and scientific communities when it first appeared in hardcover, Legal Alchemy shows how science has been used and misused in a variety of settings, including
• The Courtroom—from the O. J. Simpson trial to the Dow Corning silicone breast implant lawsuit to landmark cases such as Roe v. Wade.
• The Legislature—where Congress uses scientific information to help enact legislation about clean air, cloning, and government science projects like the space station and the superconducting super collider.
• Government Agencies—who use science to determine policy on a variety of topics, from regulating sport utility vehicles to reintroducing gray wolves to Yellowstone National Park.
As Faigman describes these and other important cases, he provides disturbing evidence that many judges, juries, and members of Congress simply don’t understand the science behind their decisions. Finally, he offers suggestions on how the science and legal professions can overcome their miscommunication and work together more effectively.
"synopsis" may belong to another edition of this title.
About the Author
David L. Faigman is a Professor of Law at the University of California, Hastings College of the Law. He writes extensively on topics concerning the law’s use of science and is a co-author of the leading treatise Modern Scientific Evidence: The Law and Science of Expert Testimony, which has been cited several times by the United States Supreme Court. He is regularly interviewed regarding issues of scientific evidence and constitutional law.
Excerpt. © Reprinted by permission. All rights reserved.
Legal Alchemy
I
FROM THE DARK AGES TO THE NEW AGE
The Strange History of Science in the Law
In the beginning God created the heaven and the earth.
And the earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters.
And God said, Let there be light: and there was light.
--Genesis
At about one-hundredth of a second after the beginning, ... the temperature of the universe is 100,000 million degrees Kelvin (1011 K) ... . It is filled with an undifferentiated soup of matter and radiation, each particle of which collides very rapidly with the other particles. Thus despite its rapid expansion, the universe is in a state of nearly perfect thermal equilibrium. The contents of the universe are therefore dictated by the rules of statistical mechanics, and do not depend at all on what went before.
--STEVEN WEINBERG, The First Three Minutes
On February 11, 1900, a jury returned a verdict of guilty and a sentence of death in the case of the People of New York v. Roland Molineux.1 Molineux was charged with the murder of Katherine Adams, who had died as a result of ingesting cyanide, which had been added to a popular headache medication and sent to her nephew through the mails. Hernephew, Harry Cornish, worked at Molineux's athletic club and had recently had a heated dispute with him. The poison, the police surmised, was intended for Cornish. Adams's headache had made his fate hers.
According to the police, this form of mail order poison was Molineux's modus operandi; he had allegedly employed the scheme successfully six weeks before. Early in 1898, Molineux had competed with Henry C. Barnet for the affections of Blanche Cheeseborough. Later reports would indicate that the woman was partial to Barnet. In October 1898, Barnet received a package of Kutnow powders through the mail from an anonymous sender. Shortly after taking some of the powders, he fell desperately ill. Although his physician attributed the illness to diphtheria, Barnet maintained that the cause was "those damned Kutnow powders." It was later determined that the powders contained cyanide of mercury. Barnet died in November. Nineteen days later, Molineux married Blanche Cheeseborough.
Molineux was never charged with the death of Henry Barnet. Nonetheless, the details of Barnet's death and the innuendo surrounding it became a major part of the state's case against Molineux in the trial involving Katherine Adams's death. More damning, however, was the discovery of the private letter boxes rented in the names of H. Cornish and H. C. Barnet. At trial, the person who had let the Barnet box, Nicholas Heckman, would testify--fortified by a promised reward from The World (a leader in the yellow journalism of the day)--that Molineux had rented the box from him. Several newspapers soon discovered that these boxes were used to receive sundry pharmaceutical products, especially medications for sexual debility. Molineux denied any connection with these postal boxes.
The core of the state's case, however, came in the form of the "science" of forensic document examination. At trial, the state introduced eighteen witnesses who specialized in handwriting identification to testify that the Cornish and Barnet letters sent to the pharmaceutical companies were written by Molineux. These experts testified further that the writing in the anonymous note that accompanied the package that contained Katherine Adams's death warrant was also in the hand of Roland Molineux. The experts thus were able to provide the empirical link between Molineux and Adams's and Barnet's deaths.
The prosecution's handwriting experts were a motley crew. None had any formal training in handwriting identification. Apparently, American universities did not offer such programs in the late nineteenth century. Most still do not. In addition, none of the prosecution's experts had conducted any research on handwriting patterns in the population or offered data indicating their proficiency in the delegated task. Severalwere employed as bank tellers and cited their experience and responsibility for evaluating the veracity of signatures for their respective employers. Other than that, these experts had conducted no systematic and rigorous study of handwriting. Fourteen of the handwriting analysts were professional experts, however, with considerable experience testifying in court, though apparently none in checking the accuracy of the conclusions to which they testified. They researched handwriting much as someone might study Milton or Shakespeare. And, as with many "experts" on literature, such musings gave them settled opinions they sought to share with the world. All the state's experts testified confidently to the conclusion that Molineux had penned the questioned documents.
The handwriting experts employed various methodologies to establish the identity of the author of the letters. The bank tellers tended to rely on gestaltlike subjective judgments from "close study" of the questioned writings. As Gilbert B. Sayres, a bank teller for thirteen years, explained, "After I began to make it a study I studied it conscientiously and for a long time, and the more I studied it the more convinced I became of the similarity ..., the characteristics being the same in both."2
The professional experts, on the other hand, employed a more technical and seemingly more sophisticated method of comparison. Persifor Fraser, for instance, a geologist and chemist and a "student of handwriting for about twenty-one years,"3 testified in somewhat greater detail about the comparison he made between Molineux's handwriting and the note that accompanied the "poison package" received by Cornish. It is worth quoting at some length from Persifor Fraser's testimony. (The numbered exhibits he refers to were known handwriting exemplars provided by the defendant; Exhibit A was the note found with the poison package.)
Roland Molineux wrote the address on the wrapper, Exhibit A, because, firstly, there are twenty-one characteristics in the conceded writings which are visibly on Exhibit A, secondly, the patterns of a great many letters on the unnumbered [sic] exhibits accord very closely with the patterns of the letters on Exhibit A, and these differences, which exist, are those which would be naturally adapted for disguise; thirdly, the microscopic structure of the ink lines in the numbered exhibits, the conceded writings, agree with the microscopic structure in the ink lines of the Exhibit A in two respects; firstly, in the swelling and tremors, deviations through tremor of the line when highly magnified; secondly, in the characters of the margins of the lines, the edges of the ink lines ... [and] in searching for some characteristic which was not simply a question of comparison of model or a similarity, it occurred to me that these differences were more than could be accounted for by accident.4
There are a number of aspects of the nineteenth-century methods of handwriting identification that seem to be problematic. Most striking, perhaps, is how unscientific the process appears. The experts all knew what results would confirm the hypotheses they were testing. Experimenter bias, usually avoided at all costs in empirical research, was palpable here. The experts also approached the samples looking for confirming instances and were quick to discount or dismiss differences as "adapted for disguise."
The practice of searching a multitude of exemplars for similarities actually turns the scientific method on its head. These experts seemed to take the view that if you have a hundred points of comparison and five constitute "matches," this observation supports the conclusion that the two samples came from the same hand. A less biased method would ask what percentage of matches would be expected if the person did not write the disputed document. A comparison of this number to the number discovered would provide a more accurate statement concerning likely authorship.
The subjective element manifest in the handwriting experts' examinations is tantamount to fraud. Finally, the proficiency of the handwriting experts was never rigorously tested, nor did the courts require tests. In the late nineteenth century, then, although it aspired to scientific status, forensic document examination embraced none of the rigorous methods that would allow us today to label it as a science.
Ultimately, however, what should be most disturbing for the modern reader is the fact that handwriting experts today employ virtually the same methods they used at the turn of the nineteenth century. The lack of empirical validation and failure to conduct proficiency testing, the failure to "blind" testers to expected results and the overwhelming subjective component in the conclusion that the samples "match," are as much a part of handwriting identification analysis today as they were one hundred years ago. In fact, today's handwriting analysts rely on essentially the same authorities as did their nineteenth-century brethren.5 In the hundred years since Molineux was convicted, largely on the basis of the state's handwriting experts, we have moved from a Newtonian universe to a universe of Einstein, Bohr, and Hawking. We have moved from the biology of Darwin to the DNA helix of Watson and Crick. Cars have replaced the horse and carriage, and planes, spaceships, and satellites fill the sky. And through it all, handwriting experts continue to count similarities and note "swelling and tremors," just as they did a hundred years ago. And courts continue to qualify them as experts.
I do not mean to suggest that handwriting identification cannot be done or that it is not done successfully at times. Common experiencesuggests that people's handwriting does vary, and there is nothing implausible about developing techniques to identify individual differences. But common experience and lack of implausibility do not make a science. If it did, we would continue to believe that the earth is the center of the universe and that bleeding with leeches is an effective medical therapy. Most aspects of handwriting analysis are subject to tests. But there has been virtually no systematic attempt to study intrawriter variation or interwriter variation, and there have only been sporadic and insufficient attempts to study the reliability of the practitioners of this craft.6
An assortment of reasons explain this inertia in the science of handwriting identification analysis. All of these reasons, however, stem from a single cause: market failure. Unlike many other sciences, the primary market for handwriting experts is the law. Neither do they compete among themselves to discover new insights about handwriting comparison, nor do their discoveries have value to other fields. They are a discrete and insular sect of self-validating specialists. They are not trained in the scientific method and they have little clue how to test their claims of expertise. So long as their customers, the courts, keep buying the old model there is no need to come up with anything new. It is as if they began making the Edsel and over the years nondiscriminating car buyers just kept plunking down money for the same old car.
On appeal, Roland Molineux's conviction was overturned largely because the trial court had permitted proof of the defendant's alleged involvement in the Barnet death, a killing with which he was not charged. The appellate court did not object to the surfeit of handwriting testimony. Upon retrial, however, the new judge had little patience for this long queue of handwriting specialists. At one point he exclaimed in exasperation, "What! Another expert?--Well, I suppose we must hear him. Make it quick."7 In addition, the defense, which had presented no evidence at all in the first trial, responded in the second with its own group of handwriting experts. Not surprisingly, these experts, bought by the defense, testified that the similarities identified by the prosecution were what might be expected in the handwriting of a number of strangers and that the poison package note was not penned by Molineux. This they were confident was true, since the poison package note was written in a better hand than Molineux's. The defendant's expert concluded that one cannot disguise one's handwriting in a better hand than was natural. While this explanation "smells of the lamp" as much as the prosecution's experts' testimony, it apparently had the desired effect on the second Molineux jury. It took the jury just twelve minutes to return a verdict of "not guilty."
Bedrock Principles and Changing Times
As the case of Roland Molineux illustrates, the law does not always stay current with changing science and technology. And this is true at much deeper levels than the courts' failure to insist on validation of handwriting expertise.
Consider a simple thought experiment. Suppose we were able to pluck a Greek citizen from the Athens of Aristotle's time, around 350 B.C. and place him in modern Washington, D.C. That person would probably be able to understand the basic proceedings and decisions made in an assortment of modern legal contexts, from the courtroom to Congress. Certainly, particular mechanisms or procedures have changed, and particular forms of legal relationships have appeared or disappeared, as they have come and gone throughout history. Slavery is gone and democracy is more inclusive than ever. But the rhetoric of politics, the daily business of government, and the resolution of legal disputes have remained much the same through the ages. Our Greek time-traveler, however, would almost surely be completely overwhelmed by our science and technology. Just the ride in the Metro from his hotel to Congress would probably kill him.
This difference in the rates of change between law and science says much about how law and science approach their respective tasks and thus how they inevitably relate to one another. The law's prestige depends largely on adhering to the traditions of the past, while science's prestige turns on how swiftly it advances into the future. But their incompatibility is even more fundamental. Science and law approach the world in profoundly different ways. Even brief reflection reveals stark differences in perspective between the two. Science explores what is; the law dictates what ought to be. Science builds on experience; the law rests on it. Science welcomes innovation, creativity, and challenges to the status quo; the law cherishes the status quo. Science assumes behavior is largely determined by biology and experience; the law typically assumes man has free will.
We might be tempted to conclude that, institutionally, these two professions are so alien to one another that there is little prospect of their ever finding accommodation. In some ways, the personalities of law and science are like those of the tortoise and hare in the familiar Aesop fable. The law's tortoise moves forward deliberately, almost reluctantly, while science's hare bounds forward with great enthusiasm. But in other ways law and science are nothing like the characters in the fable. They are not racing against one another--at least there is no reason for them to be--and it is not even clear that they are going in the same direction. It appears certain, however, that wherever law and science are going, they will not arrive together.
The past can tell us much about these disciplines' respective characters. And more to the point, it can give us insights into their relationship with each other. It turns out that they have more in common than might at first appear to be the case. In fact, in a twist that is reminiscent of a Dickens novel, they are blood relations. The question, though never in doubt in a Dickens story, is whether law and science can live together happily ever after.
Understanding Nature--Including the Nature of Man
Human understanding of the world we inhabit has not always been specifically scientific as we understand the term. To begin with, the word science had a different historical meaning8. In ancient times, the word science referred to any body of knowledge that resulted from systematic and rigorous study; it was not limited to the world of experience. Even as late as the nineteenth century, legal scholars presumed that the law itself could be studied as a science. This allowed medieval theologians to claim the scientific mantle.
It was these metaphysicians who produced most of the theories of nature on which the law relied prior to the victory of the modern scientific perspective. The transition from ancient sorcery to modern science, however, was not as smooth or as complete as we might like to believe. Isaac Newton, for instance, not only discovered gravity and charted the heavens using calculus, but he also experimented with alchemy and numerology.9 Many core insights of astrology remained integral and respected components of science until the late seventeenth century. However reputable science might be today, its roots lie deep in the mystical practices and superstitions of the past.
What we now consider to be within the province of science, previous centuries called the philosophy of nature or natural philosophy. Isaac Newton, it should be recalled, entitled his masterwork The Mathematical Principles of Natural Philosophy. Although Newton understood his task as part of a broader philosophical investigation of why the world takes the shape humans confront, he shared the specific goal of contemporary scientists of describing how the world works. The move from a focus on the how and the why of nature to solely on the how is generally associated with the scientific revolution. The scientific revolution ushered in the modern view that science may study what can be tested and leave what cannot to priests, philosophers, and sorcerers.
There is great power in having the capacity to describe how our world works. But there is greater power still in knowing the reasons why it does so and, even more, in dictating how it should do so. The objectives of the science of today and the natural philosophy and religion ormysticism of the past are nearly identical. Man has consistently sought knowledge of himself and the world that surrounds him in order to better predict and control the chaos of daily living. There is no fundamental difference between ancient man's attempt to predict and control the floods of the Nile and modern man's attempt to do the same.10 Only the methods used have changed over time. Modern man is more likely to rely on his understanding of the applied physics of meteorology and principles of engineering than astrology or ancient ritual. But the mystical practices of the past have hardly been abandoned. While modern engineers are employing the latest technology against flooding, invariably their efforts are accompanied by ritual and prayer from many quarters.
Law also has deeply religious roots, and its similarities to religious practice are plain. Religion has proved to be a highly effective device for setting and controlling the boundaries of human behavior. The law shares these objectives, so it should not be surprising to find that lawmakers also use the methods of religion. Whether explicit or implicit, lawyers and policy makers regularly appeal to the bedrock moral principles from time immemorial. But this is not mere mimicry. In most societies religion either was the law or largely controlled it. Even today, around the world this is more likely to be true than not. American law closely resembles the religious kingdom because it traces its roots there.
For most of human history law and science were largely unified within the corpus of religion. It is for good reason, then, that lawyers and scientists are sometimes individually referred to as "the high priests" of modern society. Historically, the real high priests were a combination of "lawyer" (or judge), "scientist," and "priest." So long as church and state were one, no conflict arose. Religion described the natural order of the universe and explained the moral dictates that followed naturally from that reality. Religion supplied both a description of the natural world and the punishment for failing to conform to the rules mandated by that world.
Science eventually separated from religion and, in time, began to challenge the authority of religion to describe the natural world. But the connection between law and science cannot be understood without appreciating their common heritage in religious faith and practice. This heritage remains highly relevant to much of their modern relationship. Moreover, as interesting as this common ancestry is, it supplies only a part of the story. The other part must be sought in the development of law, science, and religion after they separated from one another.
That law, science, and religion started life together is not terribly profound in itself. What has occurred since they separated into different institutions is of greater relevance here. Each retained to some degree an interest and claim to expertise in the specialty of the other two. Religion,of course, never surrendered its claim of authority to describe the empirical world and prescribe what was necessary to move on to a better world. Of much greater significance, both law and science retained or adopted religious overtones that reflected their common roots with religion. In the United States, at least, the law has developed a complex personality that unites facets of religious belief and superstition with the faith that the scientific enterprise will provide deliverance. In effect, American law has itself become a sort of religious institution, but one that must account for secular scientific findings. Science too has developed a rich sense of religious purpose, though not all scientists share it equally. In addition, scientists have increasingly sought a voice in lawmaking and policy formation. In a nutshell, whereas, in the past, religion dominated the field, the division of law, science and religion into separate institutions has led to a competition among the three for the hearts, minds and souls of society.
Many observers have likened the contemporary relationship between law and science to that of a romantic courtship. As one commentator suggested, the "meeting grounds" of law and science "are rather like the parlor in the Victorian home in which the girl and her suitor can get together--but not get together too much.11 But law and science have a much longer and significantly more complex history than the courtship metaphor can capture.
I prefer a more dramatic metaphor. In Greek mythology, the Hydra was a many-headed beast that lived in the swamps of Lerna. As penance for a crime, Heracles was sentenced to a series of heroic tasks, including slaying the Hydra. This was no easy task, since the Hydra grew two heads for every one that Heracles lopped off. Heracles eventually prevailed in his battle with the Hydra, with the aid of his twin brother's son, Iolaus, who used a torch to cauterize the wounds so that new heads could not grow as his uncle lopped them off. Imagine now a three-headed hydra, with the heads representing law, science, and religion. Each lopped-off head would become its own three-headed hydra. Any hero wishing to fight the three separate three-headed Hydras currently before us will have a far greater task than Heracles faced. The trick will be to lop off two of the heads of each of the three beasts and then to make these now one-headed creatures live in harmony.
The Science Hydra
When Science Makes Law
From Einstein's famous letter to Franklin Roosevelt about nuclear fission to scientists' experimentation with transplanting pig hearts into humans("xenotransplantation"), science challenges society to react. This is a natural consequence of one field developing techniques or ideas that are of pressing importance to another. Problems arise, however, when scientists go beyond contributing to policy agendas and begin setting policy. It is a lot like the division of authority between the military and civilian sectors of society. When the Douglas MacArthurs of the scientific community start insisting on "victory at any cost," it is time for civilians to reassert control. History is replete with examples of both good scientists and bad scientists urging what they considered to be "inevitable" policy choices based on their science. In reality, science rarely, if ever, compels a particular policy choice. And even if it does, it still falls to the civilians to recognize that fact.
A particularly salient--and sad--example of scientists stepping into policy making comes from several of the more recent volumes in the library of human prejudice. According to evolutionary theorists, such as Steven Pinker and Edward O. Wilson, the modern tendency to define in-groups and out-groups is a remnant of our hunter-gatherer pasts. Hence, bigotry, hypernationalism, religious intolerance and maybe even the movie Independence Day can all be traced to the evolutionary advantages tribalism played among our distant ancestors. It is ironic, then, that since Darwin first wrote about the subject, many have employed evolution to justify these prejudices. Scientists play an unfortunately prominent role in the story, though admittedly there is plenty of blame to go around. Francis Galton's eugenic ideas illustrate the all-too-slippery slope between what scientific research appears to suggest and what scientists claim their research dictates.
Francis Galton was Darwin's cousin and an accomplished mathematician who contributed many significant ideas to the development of statistical theory. He was also a thoroughly dangerous thinker. He first proposed his eugenics ideas in 1865, six years after Origin of Species first appeared. Darwin's Origin produced an epiphany for Galton, one that he devoted much of his life both to studying and to advocating. He told his cousin, "Your book drove away the constraint of my old superstition, as if it had been a nightmare."12 Eugenics would allow man to control his destiny, breeding supermen for a glorious future society. Galton explained, "What Nature does blindly, slowly, and ruthlessly, man may do providently, quickly, and kindly."13 Eugenics provided a scientific gloss to a very old emotion.
In the twentieth century, eugenics was supported by many scientists and policy makers who hoped to breed "superior people." Galton tended toward this "positive" form of eugenics, believing that society could be improved by encouraging "quality stock" to breed together. But eugenics has a dark side that cannot be wholly separated from even the most positivespin. Galton himself regularly slipped over to this dark side when he advocated the comfortable segregation of the unworthy to monasteries and convents.14 In time, this so-called positive eugenics was joined by many adherents who openly preached that "undesirable citizens ... must not be bred."15 It was this negative perspective that would come to dominate the debate, as mainstream eugenicists increasingly sought effective ways to stop the flood of degenerates from washing over the continent. Karl Pearson, another famous statistician, headed the laboratory that Galton, his mentor, had established. Pearson insisted that his laboratory had no political agenda: "We of the Galton Laboratory have no axes to grind," he declared. "We gain nothing, we lose nothing, by the establishment of the truth."16 The laboratory's attitude was summarized by Ethel M. Elderton: "Improvement in social conditions will not compensate for a bad hereditary influence ... . The only way to keep a nation strong mentally and physically is to see to it that each new generation is derived chiefly from the fitter members of the generation before."17 Dr. William J. Robinson summarized this sentiment more bluntly: "It is the acme of stupidity to talk in such cases of individual liberty, of the rights of the individual. Such individuals have no rights. They have no right in the first instance to be born, but having been born, they have no right to propagate their kind."18
Individual liberty, however, is the stuff of the law. It is as much aspiration as it is definition. Although science might one day "prove" that all people are not created equal, the law need never accept such "truth," for legal principle can never be simply about base genetic reality. The law certainly must be grounded in the best science has to offer. But the law is also about being ungrounded and in aspiring toward higher ideals. Thomas Jefferson should be our model. However much we smug members of modern society might condemn him for his shortcomings in this very area of prejudice, he understood that the law sought a higher plane. No amount of science can counter those truths he knew to be self-evident, "that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness."19 These truths cannot be falsified by science; they are self-evident matters of policy.
Looking for God Through Science
The next great task of science is to create a religion for mankind.
--LORD JOHN MORLEY [of Blackburn]
Given the long history of speculation about the empirical universe--born out of religion, spiritualism, abstract reasoning, fear, and loathing--modernscientists cannot hope to completely avoid conflict with the priests, philosophers, and sorcerers who continue to ply their respective trades. In describing how the world works, science necessarily finds itself in conflict with older natural theories that described how the world works from premises that incorporated why the world is the way it is or why it should be some other way. By contradicting previously held natural philosophies, scientists inevitably cast doubt on the religious or moral systems that are based on them. In Genesis, God's creation of the universe portends significant moral lessons that soon follow the dramatic opening scene. For a physicist like Steven Weinberg, the description of the universe's first moments entails no similar profound message. In the same way, although Darwin mainly avoided any theological statement in his description of evolution--at least until his final paragraph--his explanation of how humans came to be human avowedly contradicted the Old Testament's version. Darwin was intimately familiar with the ramifications of his research, just as Newton and Galileo before him understood the consequences of their work. Indeed, Darwin delayed publishing the Origin of Species for decades and suffered debilitating illness as a consequence of the anxiety that publishing his theory of natural selection caused him.20 Science thus shares a tradition with all heresies. By questioning preexisting doctrine, it challenges not only the nature of the world but also, inevitably, its meaning.
The association between God (read morals) and the empirical world is central to appreciating the modern relationship between law and science. In the past, lawgivers typically drew a close connection between the empirical world and the moral universe. Because these lawgivers were usually religiously affiliated, a challenge to the religious understanding of the way the world is was tantamount to a challenge of the moral order. This made the early scientists heretics, even if they sought only to describe the factual nature of the universe. They were dangerous because their science inevitably also challenged the moral state of the universe. The scientific revolution initiated a basic change by separating the is from the ought. But old habits die hard. We continue to reason from what is natural to what is moral, though this connection has become considerably more complicated in modern times. In the past, however, this connection was relatively straightforward and challenges to either component of it were rigorously resisted. As we will see, matters have not changed considerably over time.
Even the most sophisticated modern scientists have not entirely forsaken the metaphysical questions that lurk behind the hypotheses designed to answer how the world works. It is seemingly an inherent part of the human character to look for the objective behind the object. Manyscientists cannot resist going beyond how things work to speculate about why they do so. When this occurs, as Hanns Johst said in describing his reaction to hearing the word "culture," it is usually time to reach for your revolver.21
It has become increasingly commonplace, for instance, for physicists to inject the deity into, at least, their popular science writing. Whether it is Leon Lederman describing the "God Particle," Paul Davies finding common ground between "God and the New Physics," or Stephen Hawking searching for the mind of God in black holes or other cosmological exotica, the need to identify the purpose of it all appears universally human. Hawking described the relationship between knowing God and knowing physics in the conclusion to his best-selling book, A Brief History of Time:
If we do discover a complete [unified] theory [of the universe], it should in time be understandable in broad principle by everyone, not just a few scientists. Then we shall all, philosophers, scientists, and just ordinary people, be able to take part in the discussion of the question of why it is that we and the universe exist. If we find the answer to that, it would be the ultimate triumph of human reason--for then we should know the mind of God.22
Hawking's presumptuousness likely was born out of the grandeur of the admittedly magnificent feat he described of deriving a grand unified theory. But it is far from obvious that knowing how the universe was created will tell us why it was created. Also, we might inquire, why won't other major scientific discoveries, such as mapping the human genome, or other technological feats, such as cloning, not show us the mind of God? Indeed, we should ask, why doesn't the simplest observation of our universe give us this insight? Can we not know the mind of God when we look at a flower, see the flight of a butterfly, or hear the sound of the surf? As William Blake urged:
To see a world in a grain of sand And a heaven in a wild flower, Hold infinity in the palm of your hand And eternity in an hour.23
In the realm of faith and religion, Hawking should have hesitated over Pascal's admonition: "It is the heart which experiences God, and not the reason."24
Scientists' predilections to speculate about religion and to advocate the "good society" are related. They seek to broaden their field of influencefrom saying what is to also speculating on how it came to be and how it ought to be. The error scientists make is one of arrogance. And it is an error as old as the scientific revolution. While what is might very well assist us to decide what ought to be, it never dictates what must be. In confusing the is with the ought, scientists make the same mistake, albeit in reverse, that priests, philosophers, and sorcerers have made throughout history. Whereas a scientist speculates about metaphysics from how the real world is situated, a metaphysician speculates about the real world in order to situate his moral values. In either case, as they reach beyond their fields of expertise, conflict results.
The Religion Hydra
Knowing Reality Through Faith
The first truly profound thing our Athenian citizen from 350 B.C. would learn about modern Washington is that it and the earth are no longer the center of the universe (even if this fact might surprise some modern-day Washingtonians). But the realization that the earth was not at the center would be profoundly disturbing to him in a way that can scarcely be imagined today. The validity of the geocentric theory of the universe was the subject of one of the best-known and most celebrated "trials" in history, a trial that pitted the new science against the old theology. The inherent conflict between science and modern values that continues today was starkly presented in the greatest trial of the fifteenth century: The Church v. Galileo Galilei.
In embracing, revising, and providing substantial evidence for Copernicus's heliocentric theory, Galileo challenged the Aristotelian world view that conformed so comfortably with both experience and the Bible. By any measure, Aristotle was one of the greatest natural philosophers in all history. Aristotle's description of the universe was born of the stuff of modern science--observation. To be sure, Aristotle did not share our modern sensibilities, especially regarding the experimental method, but he was a close observer of natural phenomena.25 He was a scientist in the tradition Thomas Huxley described when he commented that "science is nothing but trained and organized common sense."26 As we can certainly appreciate today, it is obvious to the senses that the sun revolves around the earth. Aristotle's genius and "organized common sense" similarly supported this conclusion:
This view is further supported by the contributions of mathematicians to astronomy, since the observations made as the shapes change by which theorder of the stars is determined, are fully accounted for on the hypothesis that the earth is at the center.27
The Bible raises this common observation to an article of faith. The psalmist proclaims straightforwardly that God "fixed the earth upon its foundation, not to be moved forever." (Psalms 103:5). The Book of Ecclesiastes observes that "the sun rises and the sun goes down: then it presses on to the place where it rises." When Galileo openly challenged the geocentric theory, therefore, much turned on his claim. How, people wondered, should the text of Josue (Joshua 10:12-13) be interpreted? "Josue prayed to the Lord, and said in the presence of Israel, 'Stand still, O sun, at Gabaon, O moon, in the valley of Aialon!' And the sun stood still, and the moon stayed, while the nation took vengeance on its foes." If Galileo was correct, of course, there was no need to command the sun to stand still--it already obeyed this admonition. Both the value of our ordinary senses as well as the integrity of our faith were thus challenged by Galileo's science. It is no wonder that the "law" sought to crush this heresy.
In the fifteenth century, it was simply known beyond serious question that the earth was the center of the universe. Controversy over the stellar configuration mainly revolved around whether Aristotle's (378-322 B.C.) or Ptolemy's (ca. 150 B.C.) model better reconciled the Bible with daily experience. Both models were geocentric and each required a substantial number of artificial assumptions to make them work. During Aristotle's time and to a lesser extent Ptolemy's, as well, natural philosophers did not aspire to exact quantitative agreement between theory and observations. The astronomy of the fourth century B.C. in this way resembled much of psychological science of the twentieth century. Rough approximation was considered a high achievement. It was this lack of agreement between the models and reality that led Pope Leo X in 1514 to call on experts in theology and astronomy for corrections that would enable the church to reform the ecclesiastical calendar. Nicolaus Copernicus answered this call.
Conveniently for my story, Copernicus's principal area of study was the law. He studied church law at the University of Bologna, one of the finest European law schools, and graduated with an advanced degree in canon law from the University of Padua around 1503.28 Together with the law, Copernicus studied medicine, theology, and, of course, mathematics and astronomy. Although he was not a priest, Copernicus spent most of his working years at the Cathedral of Frauenberg, where he conducted his duties as a canon. Throughout these years he sought an answer to the "lack of certitude in the traditional mathematics concerning the composition ofmovements of the spheres of the world."29 His answer literally turned the world upside down. Fearing embarrassment more than persecution, Copernicus waited until 1530 to circulate an outline of his new astronomy. He had good reason to be fearful. For instance, in 1533, Martin Luther condemned his theory with scorn:
People give ear to an upstart astrologer who strove to show that the earth revolves, not the heavens or the firmament, the sun and the moon. Whosoever wishes to appear clever must devise some new system which of all systems, of course, is the very best. This fool wishes to reverse the entire science of astronomy; but Sacred Scripture tells us that Josue commanded the sun to stand still, and not the earth.30
Copernicus's great work was not published until 1543. He received an advance copy on May 24 of that year as he lay on his deathbed. He died a few hours later. The work, De revolutionibus orbium coelestium, was dedicated to Pope Paul III.
If Copernicus's theory cannot be said to have received an overly warm reception in Rome, it was not condemned or banned--at least not yet. This cordial reception was due, at least in part, to the unsigned preface that accompanied the work, written by Andreas Osiander. Osiander, a Lutheran theologian, seeking to avoid theological complications, asserted that the heliocentric theory was merely an hypothesis that was useful for computing the calendar, not a representation of reality. The preface, moreover, was written in a way that suggested that Copernicus himself had composed it. It is quite certain, however, that Copernicus believed that his theory described reality. But, in the church's view, so long as it remained only a hypothesis, it was not threatening enough to ban.
Although in time the church would ban the teaching of Copernicus and censure and eventually condemn Galileo for heresy, its position did not change substantially over the years. The church, it is true, stood steadfastly by its literal interpretation of the Bible, concluding that the theory that the earth revolves around the sun was heretical. The church, however, generally drew a distinction between hypotheses and fact and was inclined to be somewhat tolerant of the heliocentric heresy so long as it was not put forth as fact and thus contrary to the Bible. For Galileo, problems arose when he insisted that scripture should bow before his proof and be interpreted in light of the facts as he found them to be.
The trial of Galileo is almost as well known today as some of the famous trials of recent years. And like its twentieth-century counterparts, Galileo's trial was filled with intrigue and much ambiguity continues toshroud the basic facts. The essential story and its object lessons can be quickly summarized. Galileo was tried for heresy and for allegedly violating an injunction served on him in 1616 "not to hold, teach, or defend in any way, verbally or in writing" the Copernican hypothesis. The specific target of the trial was Galileo's monumental work Dialogue on the Great World Systems. The Dialogue presented a Socratic colloquy between Salviati, who represented the new learning, and Simplicio, who defended the old. The moderator between the past and the future was Sagredo. Although Galileo may have intended the Dialogue to be a balanced presentation, as he maintained at his trial in 1633, it was understood immediately as a devastating critique of Aristotelian philosophy and Ptolemaic astronomy.
Despite his lack of subtlety in the Dialogue, Galileo's defense was that he had never held the view that the earth revolved around the sun. In response to interrogation, "with the threat of torture,"31 Galileo stated that from the time of the 1616 injunction he had held "as most true and indisputable, the opinion of Ptolemy, that is to say, the stability of the earth and the motion of the sun."32 Moreover, despite the apparent arguments forwarded by the Dialogue, Galileo stated categorically, "I affirm therefore, on my conscience, that I do not now hold the condemned opinion and have not held it since the decision of the authorities."33
While physical torture was never really a serious threat, both the process and its conclusion must have seemed to Galileo torture enough. The court convicted Galileo of the heresy of believing "that the sun is the center of the world and does not move from east to west and that the earth moves and is not the center of the world."34 Galileo was sentenced to "abjure, curse, and detest" his errors and heresies and to life imprisonment, which he served under house arrest in his villa outside Florence. In addition, the Dialogue was "prohibited by public edict."
Although Galileo's condemnation was now complete, the church's would soon begin. The church had wielded raw power to quash the new physics. As the proverbial saying goes, it won the battle but was destined to lose the war. Despite the fact that Copernicus had broached the theory more than sixty years before, the church and society generally were not prepared for the new science. It wished that the new learning would go away, and it had the worldly power to make it go away. But the church could make it disappear only for a limited time. When it returned and prevailed, the church would lose more in credibility and prestige than it ever stood to gain by its appeal to faith and its condemnation of the unfaithful. There is a valuable lesson for all lawmakers in this tale.
The church's reaction to Galileo also represents a juncture of sorts in Western thinking. The need to divorce science and faith was becomingincreasingly apparent, though it would take over three hundred years for this doctrine to become firmly entrenched. As science began to tread on the domain previously controlled by priests and sorcerers, these "faiths" had only two choices. They could compete head to head with science or they could strategically withdraw to another plane from which they could make claims to knowledge separate from science. In the West, and especially in the United States, faith retreated to fight another day. The separation of church and state is one manifestation of this withdrawal.
In fact, one aspect of the Galileo affair anticipates a strategy that is central to the tactics employed by the faithful in the modern conflict between church and state. The church was grudgingly tolerant of the heliocentric theory so long as it was proffered merely as a hypothesis that offered advances in computational accuracy, rather than a description of reality. The church was willing to share the intellectual stage with science, so long as science understood who was the star. Today, of course, the church no longer has the star power it enjoyed in the sixteenth century. The modern church shares the lament of Norma Desmond in the movie Sunset Boulevard:
JOE GILLIS: You used to be in pictures. You used to be big.
NORMA DESMOND: I am big. It's the pictures that got small.35
Making Law Through Religion
Thus, from the war of nature, from famine and death, the most exalted object which we are capable of conceiving, namely, the production of the higher animals, directly follows. There is grandeur in this view of life, with its several powers, having been originally breathed by the Creator into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being evolved.
--CHARLES DARWIN, Origin of Species (final paragraph)
The United States has been called the most religious nation on earth. Although this might be a generous description, it bespeaks at least the strong position religion occupies in American society. Yet we are also a land in which the state is constitutionally separated from the church. This might appear to be a paradox of sorts, since a nation devoted to religion would presumably wish the state to back up that devotion. TheFounding Fathers, however, saw no paradox, for they believed that the state must be kept separate from the church for religion's own good. Somewhat contrary to the modern fear that religion will usurp the state's functions, the framers of the Constitution feared that the state would usurp religion. The First Amendment contains two clauses directed at this matter. One guarantees the individual the right to freely exercise his or her religion and the other forbids the state from "establishing" religion. In short, government is forbidden from interfering with both religious individuals and religious institutions.
In contrast, religions are not prohibited from fully participating in the affairs of government. The Supreme Court has held repeatedly that religions must be allowed to contribute ideas and influence just as other institutions do in a participatory democracy. Still, government cannot adopt policies in the name of religion. Hence, Pat Robinson, an ordained minister, could run for president in the name of religion, and he could advocate policies that his followers believe in, but he could not govern on the basis of religious premises. He would need to articulate an alternative argument to support his action in the unlikely event that he should become President.
The two religion clauses thus require a balancing act of death-defying proportions. Walking the tightrope between the free exercise and establishment clauses creates a fascinating dynamic between the church and the state. Most religions continue to have strong prescriptive programs for society. But religion in the United States does not have the power of the sixteenth-century Vatican, so it must seek out more indirect ways to satisfy its lawmaking desires. The courts' (and the Constitution's) task is to ferret out policies driven by religious zeal and to permit policies with independent secular merit. Just as in the sixteenth century, the church continues to be informed by its view of nature. As part of its regulatory agenda, the church often tries to impose this view on secular society.
By the twentieth century, of course, Copernicus's heliocentric theory had fully won out. The church has for some time reconciled itself to a mobile earth and a fixed sun. In fact, in a 1994 memorandum, Pope John Paul II apologized for the church's past sins against Galileo. Now that science was the star, the new question was to what extent faith might share the intellectual stage. By the late nineteenth century and throughout the twentieth, evolution emerged as the issue that would define the borderland where law, science, and faith met. How much as well as how little things had changed can be seen in the 1925 prosecution of John Scopes.36 The so-called Scopes Monkey trial, which was profoundly symbolic but had little legal significance, was a circus to match any that came before or would follow.
John Scopes, a high school biology teacher, had challenged a Tennessee law that prohibited the teaching of evolution. The law made it unlawful "to teach any theory that denies the story of divine creation as taught by the Bible and to teach instead that man was descended from a lower order of animals." Scopes was represented by a team of lawyers that included the irascible Clarence Darrow. The case for Tennessee was led by the pious William Jennings Bryan, a populist and three-time Democratic candidate for president. Part of the trial was held on the courthouse lawn with a crowd of more than 5,000 in attendance. All of the proceedings were brought to a national audience by an army of reporters, including the inimitable H. L. Mencken. Around the courthouse, banners flew and lemonade stands offered relief from the July heat. Chimpanzees, said to be witnesses for the prosecution, performed in a sideshow on Main street. The Scopes trial was an early illustration of the spectacle that celebrity trials could become in the modern world.
The Scopes trial was never really about whether John Scopes was guilty, since he had deliberately violated the law in order to test its constitutionality. But the trial also was not really about the law's constitutionality, since this determination is not triable by a jury--it is decided by a court as a matter of law. In the end, like so many other modern trial spectacles, the trial was about American society and what happens when values clash. No better illustration of the clash between sectarian piety and secular zeal could be offered than the courtroom confrontation between William Jennings Bryan and Clarence Darrow. In a highly unusual procedural move, Darrow called Bryan to the stand and crossexamined him on interpreting the Bible. The following famous exchange occurred on the seventh day of the trial:
DARROW: You have given considerable study to the Bible, haven't you, Mr. Bryan?
BRYAN: Yes, sir, I have tried to.
DARROW: Then you have made a general study of it?
BRYAN: Yes, I have; I have studied the Bible for about fifty years, or some time more than that, but, of course, I have studied it more as I have become older than when I was a boy.
DARROW: You claim that everything in the Bible should be literally interpreted?
BRYAN: I believe everything in the Bible should be accepted as it is given there: some of the Bible is given illustratively. For instance: "Ye are the salt of the earth." I would not insist that man was actually salt, or that he had flesh of salt, but it is used in the sense of salt as saying God's people.
DARROW: But when you read that Jonah swallowed the whale--or that the whale swallowed Jonah--excuse me please--how do you literally interpret that?
BRYAN: When I read that a big fish swallowed Jonah--it does not say whale. That is my recollection of it. A big fish, and I believe it, and I believe in a God who can make a whale and can make a man and make both what He pleases.
DARROW: Now, you say, the big fish swallowed Jonah, and he there remained how long--three days--and then he spewed him upon the land. You believe that the big fish was made to swallow Jonah? BRYAN: I am not prepared to say that; the Bible merely says it was done.
DARROW: You don't know whether it was the ordinary run of fish, or made for that purpose?
BRYAN: You may guess; you evolutionists guess ... .
DARROW: You are not prepared to say whether that fish was made especially to swallow a man or not?
BRYAN: The Bible doesn't say, so I am not prepared to say.
DARROW: But do you believe He made them--that He made such a fish and that it was big enough to swallow Jonah?
BRYAN: Yes, sir. Let me add: One miracle is just as easy to believe as another.
DARROW: Just as hard?
BRYAN: It is hard to believe for you, but easy for me. A miracle is a thing performed beyond what man can perform. When you get within the realm of miracles; and it is just as easy to believe the miracle of Jonah as any other miracle in the Bible.
DARROW: Perfectly easy to believe that Jonah swallowed the whale?
BRYAN: If the Bible said so; the Bible doesn't make as extreme statements as evolutionists do ... .
DARROW: The Bible says Joshua commanded the sun to stand still for the purpose of lengthening the day, doesn't it, and you believe it?
Bryan: I do.
DARROW: Do you believe at that time the entire sun went around the earth?
BRYAN: No, I believe that the earth goes around the sun.
DARROW: Do you believe that the men who wrote it thought that the day could be lengthened or that the sun could be stopped?
BRYAN: I don't know what they thought.
DARROW: You don't know?
BRYAN: I think they wrote the fact without expressing their own thoughts.
DARROW: If the day was lengthened by stopping either the earth or the sun, it must have been the earth?
BRYAN: Well, I should say so.
DARROW: Now, Mr. Bryan, have you ever pondered what would have happened to the earth if it had stood still?
BRYAN: No.
DARROW: You have not?
BRYAN: No; the God I believe in could have taken care of that, Mr. Darrow.
DARROW: I see. Have you ever pondered what would naturally happen to the earth if it stood still suddenly?
BRYAN: No.
DARROW: Don't you know it would have been converted into molten mass of matter?
BRYAN: You testify to that when you get on the stand, I will give you a chance.
DARROW: Don't you believe it?
BRYAN: I would want to hear expert testimony on that.
DARROW: You have never investigated that subject?
BRYAN: I don't think I have ever had the question asked.
DARROW: Or ever thought of it?
BRYAN: I have been too busy on things that I thought were of more importance than that.
DARROW: You believe the story of the flood to be a literal interpretation?
BRYAN: Yes, sir.
DARROW: When was that flood?
BRYAN: I would not attempt to fix the date. The date is fixed, as suggested this morning.
DARROW: About 4004 B.C.?
BRYAN: That has been the estimate of a man that is accepted today. I would not say it is accurate.
DARROW: That estimate is printed in the Bible?
BRYAN: Everybody knows, at least, I think most of the people know, that was the estimate given.
DARROW: But what do you think the Bible itself says? Don't you know how it was arrived at?
BRYAN: I never made a calculation.
DARROW: A calculation from what?
BRYAN: I could not say.
DARROW: From the generations of man?
BRYAN: I would not want to say that.
DARROW: What do you think?
BRYAN: I do not think about things I don't think about.
DARROW: Do you think about things you do think about?
BRYAN: Well, sometimes.37
In a nation in which church and state are ostensibly separate, outright banning of scientific theory was not likely to persist. And it did not. But it was not until 1968 that the United States Supreme Court struck down a Scopes-era Arkansas law that had been modeled on the Tennessee statute. The Court held in Epperson v. Arkansas38 that the "First Amendment does not permit the state to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." Arkansas had violated the Establishment Clause that proscribed it from enacting into state law "the religious view of some of its citizens" by prohibiting the teaching of evolution.
Taking a chapter out of the history books, the faithful figured that if they could not be the star they would at least seek to share the stage. In 1982, for instance, Louisiana passed a law, the Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act, which provided that evolution could not be taught in Louisiana public schools unless accompanied by instruction in creation science. Under the statute, schools could decide not to teach both evolution and creation science; but if they taught that man might have evolved from apes then they had to teach that man might have been created by God. Under the act, either both sides got on stage or the show did not go on. The Louisiana law was challenged by parents, teachers, and many religious leaders as an unconstitutional establishment of religion by the state. The case reached the United States Supreme Court in 1987.
In Edwards v. Aguillard,39 the Supreme Court, with Justice Brennan writing for the Court, struck down the Louisiana law on the intuitively sound but constitutionally dubious basis that Louisiana's primary purpose was to advance religion. It was constitutionally dubious because there was little real evidence in the legislative record to support this conclusion. In fact, proponents of the law had assiduously avoided making any statements that would make the law appear religiously motivated. The Court's conclusion was based, as Judge Gee of the Fifth Circuit Court of Appeals stated in dissent to a similar holding in the lower court, on "its visceral knowledge regarding what must have motivated the legislators." 40 The avowed purpose of the law, as explicitly stated in the statute itself, was "protecting academic freedom." The legislative history, to theextent any existed, largely supported the conclusion that this was the motivating purpose behind the law.
In assuming that Louisiana had ulterior, sinister, motives in enacting the law, Justice Brennan ignored traditional principles of constitutional interpretation that mandate that a legislature be presumed to have acted constitutionally. It is a basic and long-standing principle that the Court owes due deference to the more political branches of government. And Justice Brennan's opinion ranked high on the constitutional dubiousness scale for a couple of additional reasons. His opinion departed from precedent in finding that a constitutionally defective purpose alone would invalidate the law. Under the prevailing test, the Court had previously always considered whether the law excessively entangled the state in the affairs of religion or had the effect of advancing religion. In other words, in the past, the Court would also have had to find that the law entangled government in religious affairs or advanced religion before concluding that a constitutional violation of establishing religion had occurred. The fact that governmental motives happen to coincide with religious principles is an unsteady altar on which to place a constitutional violation. The fact that a legislative policy is strongly supported by religious groups does not mean it should be suspected of unconstitutionally advancing religion. Such an approach would have doomed abolitionist legislation of the nineteenth century and many humanitarian laws of the twentieth century.
It appears, then, that the Court believed that the Louisiana legislature acted out of religious fervor because it was convinced there was no scientific content to creationism. The logic is straightforward: Louisiana could have had only two purposes in passing the law, secular or sectarian. Since creation science is not real science, then there is no secular purpose. Therefore, Louisiana must have been motivated by a sectarian purpose. The whole argument depended on the Court's showing that creation science was no science. But the Court never made this demonstration.
Justice Scalia wrote a stinging dissent in which he accused the majority of narrow-minded illiberality for rejecting creation science without considering the evidence for it:
[We cannot] say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie. Yet that illiberal judgment, that Scopes-in-reverse, is ultimately the basis on which the Court's facile rejection of the Louisiana Legislature's purpose must rest.41
Scalia is correct that unreflective rejection of one proposed scientific explanation is as bad as unreflective acceptance of another.
In Edwards, Louisiana defended its law on the basis of two claims. It first defended creation science as a bona fide science. The basic theory holds that life appeared abruptly in the fossil record and has remained relatively static throughout time. As a legitimate scientific theory, Louisiana asserted, creation science could be taught without appeal to the Bible. According to the "hundreds and hundreds" of scientists cited by the state, creation theory accords better with the facts than does evolution. Moreover, since there were only two viable theories of life's origins, teaching creation science would highlight the flaws allegedly replete in evolutionary theory.
This claim for the validity of creation science led into the second prong of attack, a challenge to the viability of evolution. Louisiana asserted that evolution was not a "fact" and, indeed, might be better described as a "guess" or even a "myth." As myth, it has become a central tenet of "secular humanism," which the Supreme Court has described in other cases as tantamount to "religion." Through this reasoning, the teaching of evolution is itself unconstitutional as a violation of the Establishment Clause.
In Edwards, the Court missed an invaluable opportunity to make a statement about its and the Constitution's commitment to science. In fact, a group of Nobel laureates filed an amicus ("friend of the Court") brief that sought to demonstrate the scientific foundation for evolution and the lack of any similar grounding for the theory of creation. Despite this expert assistance, the Court seemed fearful of substantively evaluating the scientific merit of creation science. In the opinion, it avoided the subject entirely. I suspect that this was due to the Justices' insecurity in their knowledge of science. In short, the Court was fearful of examining whether creation science or evolution were "sciences" out of concern that they would not be able to recognize science when they saw it. Although the Nobel laureates' brief would have made this task simple enough, it would have established a troublesome precedent. Henceforth, the Court would have been obliged to distinguish between good and bad science, at least in constitutional cases. Instead, the Court relied on its own prejudices regarding creation science and assumed that the Louisiana Legislature must have been motivated by a desire to advance religion.
But Justice Scalia also did not engage in a meaningful examination of the methodological rigor of creation science. He sought to demonstrate merely that Louisiana might have acted in good-faith pursuit of educational goals and was not motivated primarily by religion. He was,for instance, impressed with the testimony before the Louisiana Legislature on behalf of the law. It was, Scalia observed, "devoted to lengthy and, to the layman, seemingly expert scientific expositions on the origin of life."42 Particularly impressive, he noted, was the fact that this testimony "touched upon" a broad range of subjects, including "biology, paleontology, genetics, astronomy, probability analysis, and biochemistry." 43 But Scalia, like Brennan, never seriously parsed the scientific evidence for the theory of creation and so could not say whether Louisiana's stated purpose for the law was legitimate. Although the Constitution expects the Supreme Court to be deferential to state legislatures, it does not require it to be a dupe for them. As "a layman," Scalia was willing to be seduced by the "quite impressive academic credentials" of the state's scientists. For Scalia to believe that Louisiana acted in good faith means that he found some scientific grounding for creation science. Rather than consider whether this was truly so, Scalia simply abdicated any responsibility for this inquiry to the state's experts.
Edwards illustrates a trend we will confront throughout the sundry topics in the pages ahead. The Supreme Court and courts generally are reluctant to delve too deeply into scientific matters. This insecurity with science, however, has real costs. In particular, it creates an assortment of doctrinal problems for the law, as justices and judges do somersaults to avoid substantive scientific analysis. In Edwards, for example, it led the Court to distort its own First Amendment jurisprudence in relying disproportionately on legislative purposes, purposes not expressed in the legislative record. This rendered the decision weaker than it could have been and made it a precedent that might create problems in future cases. The real reason the Court invalidated the Louisiana law was that it did not believe creation science was a science, so the legislature's stated motives were a lie. The Court's ignorance of science caused it to miss an invaluable opportunity to demonstrate this lie by showing that creation science is a fraud.
The Law Hydra
The Law's Science
Values, or policies, are the ultimate currency of the law. The law needs science to help it know about the facts of the world in which legal policy must operate. Without such knowledge, legal policy is literally blinded. Yet, at the same time, policy sometimes dictates certain assumptions about the real world. In other words, the law has its own version of science that occasionally dictates descriptions of how the real worldworks--whether it works that way or not. In particular, the law's version of science often has very different starting assumptions than science's version of science. There is no clearer example of this than the law's assumption that people have free will and science's assumption that behavior is determined by some combination of nature and nurture. These alternative assumptions serve the two professions well. The law assumes that people are "responsible" for their actions, and, with very few exceptions, it is merely looking for those responsible in order to hold them accountable for their behavior. Science assumes that people are affected by their biology and their experiences, and it is merely looking for the variables that account for their behavior. While these differing starting premises serve the two professions well in their separate capacities, they create intellectual chaos when the two fields must work together. This chaos is especially well illustrated by the context known in the law as "insanity" and in science as "mental illness."
Consider the following ugly facts. In 1984, Leroy Hendricks, a fiftyyear-old man, was tried for the molestation of two thirteen-year-old boys.44 In the actual case, he was convicted of the substantive offense of taking "indecent liberties" with two minors and was sentenced to ten years in prison. Imagine that Hendricks's defense had been insanity. Hendricks testifies that he cannot control his urge to touch the boys sexually. Moreover, when he suffers stress, he is unable to control the urge to engage in sexual activity with children. "I can't control the urge when I get stressed out," he testifies. He understands that his behavior causes grave harm to the children and that "it is wrong." But, when asked how he could be stopped from molesting children, he states, "The only way to guarantee that is to die."
Hendricks thus claims that he is "mentally abnormal" in that he cannot control his behavior. Indeed, in support of this claim he introduces evidence that he has a history of molesting children that dates to 1955, when he was twenty. At that time he exposed himself to two young girls. He has been in and out of prisons and mental hospitals since his first conviction in 1957 for lewdness for playing strip poker with a fourteenyear-old girl. Some of these convictions involved children as young as eight. In 1973, shortly after being released from prison, he began molesting his own stepdaughter and stepson, which lasted five years, though he was never tried for these offenses.
Hendricks calls as an expert a forensic psychiatrist who testifies that Hendricks is a pedophile who cannot control his behavior. In fact, the state's own expert testifies that Hendricks is a pedophile who cannot control his behavior. The state's expert, however, believes that Hendricks does not have a "personality disorder" nor is he "mentally ill" as that termis commonly used. Finally, Hendricks fully understands the consequences of his behavior and the fact that it is both wrong and illegal.
Should Hendricks be "acquitted" on the basis that he is insane? Of course, such an outcome does not mean that he goes free--far from it. A verdict of insanity brings with it an indefinite commitment to a mental institution. In any case, the question in most American jurisdictions, including Kansas, where Hendricks was tried, is moot. In most states, to assert a defense of insanity the defendant must claim that as a consequence of his insanity he could not distinguish right from wrong. Hendricks, therefore, could not even raise a claim of insanity, since he knew that what he was doing was wrong.
This modern right/wrong test is based on the nineteenth-century trial and acquittal of Daniel M'Naghten.45 M'Naghten had been under the delusion that Sir Robert Peel, the British prime minister, was persecuting him. On January 20, 1843, in an attempt to assassinate Peel, M'Naghten shot and killed Peel's assistant, Edward Drummond, by mistake. However, because he was delusional, M'Naghten was acquitted on the ground of insanity. The British public exploded with outrage, and Queen Victoria demanded that the House of Lords summon the common law judges to explain the result. In response to this summons, the judges framed what has come to be known as the M'Naghten test. The judges explained that a defendant should be acquitted if he "was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong."46
The main modern competition to the M'Naghten test for insanity is the standard set forth by the prestigious American Law Institute (ALI). This test was intended to be more practical than M'Naghten: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law."47 The ALI test combines the cognitive component of the M'Naghten test with a volitional component or irresistible impulse test. Since Hendricks claimed that his behavior was an irresistible impulse, the ALI test would have been available to his defense. But the irresistible impulse component has been severely criticized. In particular, critics complained that it was impossible to distinguish an irresistible impulse from an impulse simply not resisted. In addition, mental health experts objected that it suggested a compartmentalization of the cognitive and volitional parts of the brain. Nonetheless, the ALI test achieved substantial success at first, especially in the federal courts. This success ended abruptly, however, with JohnHinkley's acquittal under the test. The Hinkley acquittal led to congressional passage of the Insanity Defense Reform Act, which essentially abolished the volitional prong and returned the federal courts to the M'Naghten test.48
According to the law, then, Leroy Hendricks was sufficiently responsible for his behavior to be punished by being sent to prison. After languishing in prison for ten years, Hendricks was about to return to society in 1994. The State of Kansas, however, had other ideas. As his release date neared, the state sought to civilly commit him as a "sexual predator" under the Kansas Sexually Violent Predator Act.49 Now the roles had reversed. The state sought to prove that Hendricks "suffers from a mental abnormality or personality disorder which makes him likely to engage in predatory acts of sexual violence." This mental defect made him dangerous enough to "engage in predatory acts of sexual violence or sexual activity with children if permitted to do so." The state now took the position that Hendricks had no control over his behavior and had to be committed for the safety of the community. The defense now had to call into question the validity of the psychiatric evidence. At the commitment hearing the defense introduced evidence that indicated that reoffense rates for sex offenders range from 3 to 37.5 percent for those who received treatment and from 10 to 40 percent for those who received no treatment. The defendant's psychiatrist also testified that psychiatric predictions of violence are notoriously unreliable. Hendricks lost at this hearing, and he was incarcerated indefinitely in a secure mental hospital.
Hendricks appealed. His commitment was overturned by the Kansas Supreme Court on the basis that the Kansas Sexual Predator Act failed to require that the person being civilly committed be found to suffer from a "mental illness" and thus violated the Due Process Clause of the Fourteenth Amendment.50 Relying on a 1992 Supreme Court decision, Foucha v. Louisiana,51 the Kansas Court held that due process requires that a person be both mentally ill and dangerous before he can be involuntarily civilly committed. Foucha seemed to have established a level of correspondence between legal "insanity" in criminal cases and "mental illness" in civil commitment determinations. In Foucha, the defendant had been found not guilty by reason of insanity. Subsequently, however, he regained his sanity when he recovered from what was "probably" a "drug-induced psychosis." Louisiana sought to keep him incarcerated until he could prove that he was no longer dangerous. The Court concluded that dangerousness alone was not sufficient. Due process allows an insanity acquittee to be incarcerated only "as long as he is both mentally ill and dangerous, but no longer."52 The Court explained that an insanity verdict "establishes two facts: (i) the defendant committed an actthat constitutes a criminal offense, and (ii) he committed the act because of mental illness."53
Inherent in Foucha, however, is a basic tension between the law's "insanity" and science's "mental illness." It is probably true that all those found to be insane suffer from mental illness, but not everyone suffering from mental illness would qualify as insane. Insanity is a political compromise that offers a rough balance between traditional legal principles of accountability and the need to protect society. Mental illness is a political compromise of a different sort, reflecting both scientific knowledge of human behavior and professional interest in providing treatment for those who can benefit from it (and preferably have insurance to pay for it).
Kansas v. Hendricks54 reached the United States Supreme Court in 1997. The Court held that the Kansas law was not unconstitutional. Justice Thomas, who had dissented in Foucha, wrote for the Court, with Justices Breyer, Stevens, Souter, and Ginsburg dissenting from the holding and various parts of the reasoning. At least eight of the Justices agreed, however, that the Kansas law satisfied "substantive due process" requirements under the Fourteenth Amendment. Five members of the Court also found that the law did not violate either the Double Jeopardy or Ex Post Facto Clauses, a conclusion with which the four dissenting Justices disagreed.
Justice Thomas found that Foucha had established no categorical due process requirement that commitment be premised on both mental illness and dangerousness. Instead, Foucha stood for no more than that proof of dangerousness must be coupled "with the proof of some additional factor."55 The Court concluded that "mental abnormality" could suffice, since "it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness."56 Hendricks's mental abnormality meant that he lacked "volitional control."57 Justice Breyer, agreeing with the majority on this issue, summarized the Court's reasoning:
Hendricks's abnormality does not consist simply of a long course of antisocial behavior, but rather it includes a specific, serious, and highly unusual inability to control his action. (For example, Hendricks testified that, when he gets "stressed out," he cannot "control the urge" to molest children ... . ) The law traditionally has considered this kind of abnormality akin to insanity for purposes of confinement.58
The Hendricks Court thus seems to have reinserted the volitional prong into the legal standard. This, of course, sets the Court's commitmentjurisprudence at odds with how most jurisdictions approach insanity, including federal courts. Indeed, it might even make commitments under sexual predator laws very difficult, given the extraordinary difficulty in practice of distinguishing between an irresistible impulse and an impulse not resisted. But before we conclude that the Court has shrunk the states' net in commitment cases or widened the net for defendants to claim insanity, we should reflect for a moment. The Hendricks majority--Thomas, Rehnquist, Scalia, O'Connor, and Kennedy--are not known for their bleeding hearts. It is exceedingly unlikely that this lineup believed that if Hendricks were to get out and commit another offense his lack of volitional control would excuse his behavior. Nor is it terribly likely that states will have to prove that every person they seek to commit as a "sexual predator" lacks volitional control. What the Court really did was to widen the net considerably to permit states to catch "sexual predators" before they can prey, especially on children. Although Hendricks exemplifies a striking discontinuity between the criminal and civil dockets in terms of philosophies of human behavior, the legal result is consistent at a base practical level: on either side of the docket, these people get locked up.
The question, then, is just how wide the new net is. Or just who "these people" who are to be locked up before they have done anything wrong are. If, in fact, lack of "volitional control" is not a prerequisite to commitment in Kansas or elsewhere, then only a finding of "mental abnormality" is required. But what does this term mean? Without the volitional component, the "additional factor" of mental abnormality appears to have no content. It seems to be whatever the legislature says it is. The Kansas statute defines mental abnormality as
[a] congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.59
In effect, a person is mentally abnormal because he is dangerous. Upon close analysis, then, under the Kansas statute a person can be committed if he is both dangerous and dangerous. Thus, there is no "additional factor" after all.
"Dangerousness," or a prediction of violence, therefore, is the foundation of the decision as well as the key to satisfying substantive due process. Surprisingly, however, the Court gave it little attention. And the Court said nothing at all concerning the uncertainties associated with predictions of violence. It turns out that predictions of violence areuntrustworthy. In fact, even when made from among groups with the highest rates of recidivism, predictions of violence are wrong more often than they are correct.60
Given that "dangerousness" is the essential factor, might states seek to incarcerate individuals who are deemed dangerous but have never committed any offense? Suppose in the future some set of genetic markers indicates that people with those genes are "predisposed" to "commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Could he be locked up constitutionally? In Hendricks, the Court noted that the Kansas statute requires that the person "has been convicted of or charged with a sexually violent offense"61 and thus, in the Court's words, "requires evidence of past sexually violent behavior."62 Hendricks himself had been convicted of a long series of offenses. But since the statute also applies to those who have only been "charged with" a sexually violent offense, evidence of "past sexually violent behavior" will likely be by proof less than beyond a reasonable doubt. Moreover, prior convictions apparently are not required by due process. In fact, a prior conviction requirement would be theoretically inconsistent with the Court's conclusion that the Kansas statute does not violate the Double Jeopardy and Ex Post Facto Clauses. Hendricks was being incarcerated for what he might do, not for what he did do. Committing only those previously convicted might suggest that the legislature's intent was punitive.63 Such a punitive intent, the Court said, would be unconstitutional. So long as there is sufficient evidence to find the person is dangerous, the Constitution does not bar civil commitment.64
So should the Hendrickses of the world be locked up forever? Should genetic tests be developed someday to identify those predisposed toward sexual violence? Science cannot answer these questions. We might wish that they could be answered in black and white, but both law and science confront a world that comes in many shades of gray. Science tells us that we will be wrong most of the time when we send the Hendrickses of the world to rot in a prison or mental hospital. Genetic tests don't give individuals the opportunity to "beat the odds." The value of liberty is impossible to quantify, but is clearly cherished by our society. The costs of liberty, the costs of permitting the Hendrickses of the world to return to the street (up to 37.5 percent of whom will commit further crimes), are equally difficult to assess. Sexual assaults against children are the hardest crimes to comprehend and the kinds of crime that understandably provoke the most vehement public response. Society might be safer if all those who were "likely to be violent" were locked up forever. But is it a society worth saving?
The Cathedral of the Law
The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.
--OLIVER WENDELL HOLMES
The law, for its part, is inherently concerned with both the why and the how of the world; law is, by definition, both descriptive and prescriptive. At bottom, the law is a governing institution that must understand what is; it is also specifically designed to say what ought to be. These tasks require an intimate understanding of nature that is constantly informed by norms and ideals. In fact, the law could be defined simply as humankind's attempt to understand and control nature (including, especially, human nature) to fulfill God's ideal, however God might be defined.
The law has retained a strong religious identity in at least two very distinct respects. The first concerns how law in the United States has assumed near religious significance itself. This stems from its primary societal role in defining the boundaries of acceptable behavior and in meting out punishment for transgressions to the established moral order. An illuminating instance of this religiosity of law is the fairly common observation that the Constitution has achieved scriptural significance: reading its text is akin to biblical interpretation. The second religious aspect of law has somewhat greater historical significance and is particularly related to several themes of this book. The law sometimes incorporates into its operating premises a religious understanding of the universe. This was especially true historically, when the law occasionally assumed some of the more intolerant beliefs of religious practice.
As noted, the law inevitably must rely on factual descriptions of the world in crafting legal prescriptions for appropriate behavior. In a prescientific world, religion offered such descriptions. Where religion leaves off and science begins is a question the law has not always handled with precision. An excellent illustration of the law's difficulty in this task comes from a particularly salient tragedy in the summer of 1692. The witch trials that blazed through Salem, Massachusetts, that summer were solidly grounded in the science of the day.65 But it was a science based on an empiricism informed through religion's looking glass. The devil and his disciples were real and their influence could be deduced through the effects they caused. At least these effects were known with enough confidence to condemn and execute nineteen people.
The curse first befell Salem the previous winter when Tituba, a Carib Indian slave owned by the Reverend Samuel Parris, entertainedParris's nine-year-old daughter, Betty, and his niece, eleven-year-old Abigail Williams, with fortune-telling and magic. Soon, Betty and Abigail invited eight other girls to join the fun. The fun turned sinister, however, as Betty and Abigail began to feel guilty about "practicing magic." Shortly thereafter, Betty grew ill. But her illness bore ominous portents, for she exhibited very strange behaviors, falling into trances, screaming blasphemously, and suffering convulsions. Abigail and some of the other girls started to display similar symptoms.
Dr. William Griggs examined the girls and concluded that they were bewitched. Under considerable pressure to name names, Betty and Abigail identified three people: Tituba, Sarah Good, and Sarah Osborn. Betty explained to her parents that she and the other girls had been approached by the devil--a man in black--and offered riches. When they refused his overture, they were set upon by three witches. On February 29, 1692, these alleged witches were arrested.
What began as a small, albeit dangerous, fire received its first dose of gasoline with the confession of Tituba. Although she initially denied any complicity with the devil, under repeated questioning she confessed to practicing witchcraft. She testified to having seen the devil, who appeared to her "sometimes like a hog and sometimes like a great dog." Tituba told the investigating magistrates: "There is four women and one man, they hurt the children, and then they lay all upon me, and they tell me, if I will not hurt the children, they will hurt me." Tituba further told of the spectral evidence of "talking cats, riding on sticks, and a tall, unidentified man of Boston." Finally, and most ominously, she told the magistrates that there was a conspiracy of witches in Salem.
In the ensuing weeks, many people came forward to complain that they too had been victimized by witches or had seen spectral shapes of some of their neighbors. Joining the principal accusers of Betty Parris and Abigail Williams were Ann Putnam and Elizabeth Hubbard. Many of the first to be denounced were women whose behavior or economic circumstances somehow disturbed the social convention. An early writer's description of the typical witch sounds just out of central casting: "a hagged old Woman, living in a little rotten Cottage, under a Hill, by a Wood-side, and must be frequently spinning at the Door: she must have a black Cat, two or three Broom-sticks, an Imp or two, and two or three diabolical Teats to suckle her Imp."66 As many contemporary commentators have pointed out, the witch trials were as much a pogrom against women as a holy war against the devil.67 In particular, women who reveled in "infirmity, impotence of passions and affection, ... and vagrant lust" were "the fittest subjects" for the devil.68 Richard Baxter, an influential Puritan scholar, described the gendered nature of witchcraft as follows: "Lustful, rank girlsand young widows that plot for some amorous, procacious design, or have imaginations conquered by lust ... [there] Satan oft sets in."69
The list of the accused, however, soon exceeded the likely suspects from the rolls of the destitute and ignorant and encompassed both men and women of some means and community standing. Four-year-old Dorcas Good was jailed after several witnesses testified that the child's specter fell upon them and bit and pinched them. Dorcas eventually confessed, and she was spared the fate of her family. Her baby sister died at her mother's side and her mother joined the ranks of the martyrs at the gallows. Dorcas reportedly went insane.70
The growing list focused on Quakers and other "social deviants" who populated the area, including such eminently respectable citizens as George Burroughs and Rebecca Nurse. In addition, the devil seemed to have a particular proclivity to enlist as witches opponents of the Putnam family of Salem Village, an old and well-established family that resented many of the changes occurring in the village and town. By the spring, the band of accusers had even identified John Alden, a well-known sea captain and merchant, as a witch, though he had to be pointed out to the girls. Abigail Williams went so far as to accuse Samuel Willard--a prominent Boston minister and critic of the trials--until she was whisked out of court and firmly informed that she was mistaken.71 She got the hint and withdrew the accusation.72
But a question that redounds through the centuries is what proof there was that the accused were witches. The evidence lay in a mix of common knowledge and empirical fact. For instance, it was commonly known that witches targeted children.73 But, as Michael Dalton's much relied-on work, The Country Justice (1619), pointed out, since the witch's world was the world "of darkness," no "direct evidence" would prove their presence. Instead, indirect and circumstantial proof had to be relied on. There was plenty of this kind of evidence to be found, if only the magistrates looked carefully enough. For instance, witches typically had unusual marks on their bodies, so-called witches' teats. According to theory, the witch's "familiars" needed a place to suckle. In practice, virtually any strange mark would suffice. In little Dorcas Good's case, a red mark "about the bigness of a flea bite"--which it probably was--was sufficient. Of course, absence of marks would not exonerate an accused, as Rebecca Nurse discovered to her chagrin. She suffered through repeated physical examinations in search of telltale marks, all of which ended inconclusively. She was convicted and hanged nonetheless. Another preferred test for detecting witchery was the "touching test." The judges sometimes required the defendants to touch the afflicted witnesses and if, in so doing, they alleviated the suffering, they thereby proved that they were the cause of it.
Showing their enlightenment, however, the judges did eschew certain barbaric forms of proof. In particular, they rejected such classic tests as placing the suspected witch in water to see if she would float or burning her. Such "ordeals" were deemed uncivilized, and the judges sought more scientific alternatives.
The seventeenth century was a time when thinking was becoming more scientific, more rational, and some of the most respected thinkers on demonology and witchcraft were otherwise modernists in their science. Principal among these commentators was Cotton Mather, son of Increase Mather, and a careful researcher of specters and other devilish goings-on. Mather very much considered himself a scientist and, indeed, was a member of the prestigious Royal Society. Mather had studied victims said to be bewitched firsthand and had no doubt that the phenomenon was "dreadfully real."74 The logic of causation he employed was also rigorous. If a person quarreled with a witch and then became ill or some misfortune befell the person, it could be deduced that the witch bore responsibility for the misfortune. As a legal matter, if the witch used spectral visitations to accomplish her work, then she could be accountable for battery. If death resulted, she was guilty of murder. In any event, in Massachusetts the law required no direct harm to be done: "If any man or woman be a witch (that is hath or consulted with a familiar spirit) they shall be put to death."75 This edict was based squarely on biblical teachings: "Thou shalt not suffer a witch to live."
In the case of Bridget Bishop, for example, the evidence was overwhelming. Befitting the strong proof available against her, Bishop was the first to be tried. Confessed witches Deliverance Hobbs and Mary Warren both testified that Bishop was one of them.76 A group of matrons inspected Bishop's body and found an "excrescence of flesh ... not usual in women."77 Most damning, however, was the scientific proof of "spectral evidence." Her accusers testified that it was Bishop's specter that attacked them. A surfeit of other witnesses also spoke of how Bishop's specter had appeared to take credit for the many misfortunes they had suffered. On one occasion, a witness related, Bishop "was under a Guard, passing by the great and spacious Meeting-house of Salem, she gave a look towards the house, and immediately a daemon invisibly entering the Meeting-house, torn down a part of it."78 This was enough for the jury. Bishop was hanged on June 10.
Spectral evidence was, by far, the most controversial form of scientific proof introduced in the Salem trials. Specters of the accused would be seen doing evil deeds or consorting with the devil. This form of evidence, of course, vitiated any alibis that might be forthcoming. But highly disputed among the scientists and ministers was whether the devilcould use the shape of a good person in this way. If not, then spectral proof might be enough to support a conviction. Yet many, including Cotton Mather, urged that there was no proof that the devil could not take a good person's visage for evil, and the Bible contained examples of good men possessed by evil spirits. Mather, therefore, cautioned the Salem judges to require other evidence before convicting an accused.79 This warning, however, was not always heeded in the hysteria of the time. It was Cotton Mather's father, Increase Mather, who wrote the most damning critique of spectral evidence, in Cases of Conscience, which led to the abandonment of this form of proof. Although Increase thought witches probably existed, he considered spectral evidence too prone to abuse, since the devil himself might employ specters to ensnare the innocent. Demonstrating a modicum of the rationality that would dominate the next century, Increase wrote in 1692:
"Presumptions ... whereupon persons may be Condemned as Guilty of Witchcrafts, ought Certainly to be more considerable, than barely the Accused Persons being Represented by a Spectre unto the afflicted; inasmuch as 'tis an undoubted and a Notorious Thing, That a Daemon may, by God's Permission, appear even to Ill purposes, in the Shape of an Innocent, yea, and a vertuous man."80
Logic dictated, after all, that the judges should beware of being "frequently Liable to be abused by the Devils Legerdemains."81
Modern courts have not been entirely guiltless in conducting their own witch-hunts. Although not specifically based in religion, as were the witch trials of 1692, the two most often cited contemporary versions have involved repressed memories and child sex abuse trials. The former relies on the problematical theory that memories can lie repressed for decades and be "recovered" intact through psychotherapy or hypnosis. And many child sex abuse cases were built on the testimony of young and impressionable witnesses who were subjected to leading questions and significant pressure to "tell the truth." In these cases, the "helping professions" assumed the priestly task of rooting out evil incarnate. In most cases, the rational thinking displayed by Increase Mather would go a long way toward avoiding many of the witch-hunts the law occasionally plunges into. The value of the scientific method is not always in the findings it provides but in giving us a critical perspective regarding findings that are claimed but just do not add up.
Science, however, is no panacea. Indeed, most witch-hunts are carried out in the name of science. But it is typically science that is ill-conceived and wielded with great passion and prejudice. A more sober andsophisticated understanding of science should at least temper these flames somewhat.
Law, science, and religion will always lie in uneasy tension with one another, for they share too many objectives and too few working premises. This tension, however, is not altogether bad, for it operates to check their power. Nothing would be more frightening than to have one of these institutions too fully dominate the other two. For the law, the objective must be to work with science and religion but never to be dominated by them. This can only come through knowing them well. As Vito Corleone said in Francis Ford Coppola's The Godfather, "Keep your friends close, but your enemies closer."
© 1999, 2000 by David L. Faigman. All rights reserved.
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