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New England Journal of Medicine Traipses Into the Kitzmiller Decision (Part II)

[Editor’s Note: The three individual installments of this series can be seen here: Part 1, Part 2, Part 3. The final complete article, New England Journal of Medicine Traipses Into the Kitzmiller Decision, can be found here.]

On Thursday I posted Part I of my online response to Intelligent Judging — Evolution in the Classroom and the Courtroom (by George C. Annas, New England Journal of Medicine Volume 354 (21):2277-2281 (May 25, 2006)). Today I post Part II of three total parts.

To reiterate, Mr. Annas praises Judge Jones’ ruling as follows:

Judge Jones summarized the expert testimony in more than 25 pages, concluding that it demonstrated to him that intelligent design is “an interesting theological argument” but is not science for many reasons: it invokes a supernatural cause; it relies on the same flawed arguments as creationism; its attacks on evolution have been refuted by the scientific community; it has failed to gain acceptance in the scientific community; it has not generated any peer-reviewed publications; and it has not been the subject of testing or research.

I previously discussed whether ID requires the supernatural and whether ID uses the “Failed Arguments of Creationism.” This section will discuss how ID has been treated by the scientific community, and whether the Kitzmiller ruling used accurate claims and relevant arguments in concluding that ID wasn’t science.

[3] ID is refuted by the scientific community?
The evidence upon which Judge Jones relied to claim that ID has been “refuted by the scientific community” is also highly questionable: consider Ken Miller’s false definition of irreducible complexity and the straw-man tests he gave that never refuted it. The phrase “refuted by the scientific community” is also condescending because many ID proponents are well-credentialed scientists employed by the same university science departments as Darwinists. To claim that the entire scientific community rejects and has “refuted” ID is to falsely imply that the scientific community includes no ID proponents. Michael Behe has also responded to the scientific claims.

[4] ID has failed to gain acceptance in the scientific community?
The central holding of the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), was the rejection of the “Frye Rule” requiring “general acceptance” for admissibility of scientific evidence under the Federal Rules of Evidence (FRE):

Nothing in the text of this Rule establishes “general acceptance” as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a “general acceptance” standard. The drafting history makes no mention of Frye, and a rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony. The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts. Given the Rules’ permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention “general acceptance,” the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made “general acceptance” the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials. (Daubert at 588-589, internal citations and quotations omitted for ease of reading)

The Court did note that “general acceptance” can be used as one factor to consider in a determination of whether something is admissible as scientific evidence under the FRE, but it is not the dispositive factor. (Of course the Kitzmiller case was not dealing with questions of admissibility under the FRE, but it is relevant to note that the even the Supreme Court has nonetheless observed, in conjunction with rulings about the FRE, that something can be legitimate science even if it doesn’t enjoy widespread acceptance.)

Since when does general acceptance determine if an idea is science? As Stephen Jay Gould co-wrote to the U.S. Supreme Court in the Daubert case, unpublished or minority viewpoints should not be excluded from being science because that would stifle scientific progress:

Judgments based on scientific evidence, whether made in a laboratory or a courtroom, are undermined by a categorical refusal even to consider research or views that contradict someone’s notion of the prevailing “consensus” of scientific opinion. . . . Automatically rejecting dissenting views that challenge the conventional wisdom is a dangerous fallacy, for almost every generally accepted view was once deemed eccentric or heretical. Perpetuating the reign of a supposed scientific orthodoxy in this way, whether in a research laboratory or in a courtroom, is profoundly inimical to the search for truth. A categorical refusal even to examine and consider scientific evidence that conflicts with some ill-defined notion of majority opinion is a recipe for error in any forum. . . . The quality of a scientific approach or opinion depends on the strength of its factual premises and on the depth and consistency of its reasoning, not on its appearance in a particular journal or on its popularity among other scientists.

(Brief Amici Curiae of Ronald Bayer, Stephen Jay Gould, Gerald Holton, Peter Infante, Philip Landrigan, Everett Mendelsohn, Robert Morris, Herbert Needleman, Dorothy Nelkin, William Nicholson, Kathleen Joy Propert, and David Rosner, in support of petitioners, Daubert, 509 U.S. 579 (1993) (No. 92-102).)

Unless Judge Jones wanted to be a science stopper, he should have not have rejected Gould’s argument that dissenting or even unpopular views can most certainly be science, and even be very valuable to science.

[5] ID has not generated any peer-reviewed publications?
Various peer-reviewed articles which support ID were documented to Judge Jones. Yet he claimed that ID has not generated any peer-reviewed publications. This is a simple question that Judge Jones got flat wrong.

[6] ID has not been the subject of testing or research?
The best way to refute this claim is to let Scott Minnich speak for himself. Minnich is a microbiologist who testified as follows on the next-to-last-day of the trial about his own research and experimentation into intelligent design:

Q. Do you know employ principles and concepts from intelligent design in your work?

A. I do.

Q. And I’d like for you to explain that further. I know you’re prepared several slides to do that.


A. Sure. All right. I work on the bacterial flagellum, understanding the function of the bacterial flagellum for example by exposing cells to mutagenic compounds or agents, and then scoring for cells that have attenuated or lost motility. This is our phenotype. The cells can swim or they can’t. We mutagenize the cells, if we hit a gene that’s involved in function of the flagellum, they can’t swim, which is a scorable phenotype that we use. Reverse engineering is then employed to identify all these genes. We couple this with biochemistry to essentially rebuild the structure and understand what the function of each individual part is. Summary, it is the process more akin to design that propelled biology from a mere descriptive science to an experimental science in terms of employing these techniques.

Q. Do you have some examples employing this particular concept of the flagella?

A. I do, in the next slide. Hopefully this will cut to the chase and show you what we’re talking about. This is an organism that my students and I work on. This is a petri dish about 15 millimeters size, filled with this soft auger food source for the organism. It’s soft in the sense the organisms can swim in it, but it has some rigidity that they just don’t slosh around. Now, each one of these areas showing growth were inoculated with a toothpick of cells, the wild type parent here. So this is yersinia enterocolitica, a good pathogen, double bucket disease if you ingest it.

Q. That’s the center?

A. Yeah, that’s the center, okay? So it can swim. So it was inoculated right here, and over about twelve hours it’s radiated out from that point of inoculant. Here is this same derived from that same parental clone, but we have a transposon, a jumping gene inserted into a rod protein, part of the drive shaft for the flagellum. It can’t swim. It’s stuck, all right? This one is a mutation in the U joint. Same phenotype. So we collect cells that have been mutagenized, we stick them in soft auger, we can screen a couple of thousand very easily with a few undergraduates, you know, in a day and look for whether or not they can swim.

Q. I’m sorry, just so we’re clear on the record, the two you’re talking about on the bottom left, the first one was the bottom left and the second one was the bottom right?

A. Right.

Q. Where you took away a portion of the flagella?

A. We have a mutation in a drive shaft protein or the U joint, and they can’t swim. Now, to confirm that that’s the only part that we’ve affected, you know, is that we can identify this mutation, clone the gene from the wild type and reintroduce it by mechanism of genetic complementation. So this is, these cells up here are derived from this mutant where we have complemented with a good copy of the gene. One mutation, one part knock out, it can’t swim. Put that single gene back in we restore motility. Same thing over here. We put, knock out one part, put a good copy of the gene back in, and they can swim. By definition the system is irreducibly complex. We’ve done that with all 35 components of the flagellum, and we get the same effect.

(Transcript of Testimony of Scott Minnich pgs. 99-108, Kitzmiller, No. 4:04—CV-2688 (M.D. Pa., Nov. 3, 2005))

This testimony from Scott Minnich shows slides documenting his own research experiments which tested intelligent design and found that the flagellum is irreducibly complex. Yet Judge Jones had to ignore all of this testimony to claim that “ID has not been the subject of testing or research.” Was that finding supported by the evidence?

None of reasons given by Judge Jones for why ID is not science are both true and relevant.

Casey Luskin

Associate Director and Senior Fellow, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



__editedNew England Journal of Medicine