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

Casey Luskin

[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.]

In a New England Journal of Medicine article entitled “Intelligent Judging — Evolution in the Classroom and the Courtroom,” George J. Annas lavishes the Kitzmiller decision with praise. Ironically, Mr. Annas lauds some statements by Judge Jones which others have viewed as undermining the Judge’s credibility.

For instance, Mr. Annas applauds the following proclamation of judicial superiority by Judge Jones:

After a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentation, the court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area [and] . . . in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

(Judge Jones, quoted in Intelligent Judging — Evolution in the Classroom and the Courtroom, New England Journal of Medicine, by George J. Annas; emphasis added)

This is one of my favorite quotes from the Kitzmiller ruling–but probably for different reasons than those of Mr. Annas. The definition of “traipse” is “To walk about idly or intrusively.” (American Heritage Dictionary, 2nd college ed.) This is exactly what Judge Jones did in the Kitzmiller decision, which is why the book I co-authored on the case is titled Traipsing Into Evolution. Many legal scholars with whom I have spoken have similarly found this statement by Judge Jones to be an incredible overreach for a district court judge.

The reason America has a tiered federal court system is so multiple courts can examine the same issue, just in case one court incorrectly decides some matter of law. Lower courts often arrive at opposite conclusions on complex legal issues, and then a panel of more judges ruling from a higher court must sort them out, and hopefully “get it right.” But according to Judge Jones, his Kitzmiller decision should settle the issue of whether ID is science for all courts.

Judge Jones is trying to behave like the U.S. Supreme Court–the highest court in the land–and the only one that is supposed to decide an issue for all other courts. Jones’ statement that “a subsequent trial” need not attempt to address these issues–because he apparently figured them all out–strains the overall credibility of his ruling and would not be appreciated by other judges who feel themselves judicially competent to investigate these issues and rule on them.

As will be documented over a series of this, and two upcoming posts, the facts also strain the credibility of the Kitzmiller ruling and many of the questionable claims repeated in the New England Journal of Medicine.

Mr. Annas goes on to praise Judge Jones for his findings that ID isn’t science. The problem is that each finding was based upon non-existent facts or irrelevant arguments. Mr. Annas recapitulates the ruling:

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.

That all sounds fine, but unfortunately each of these statements is either patently untrue or largely irrelevant to a determination of whether ID is science.

[1] ID requires the supernatural?
Judge Jones asserted that ID requires supernatural causation. In doing so, he ignored extensive evidence showing precisely the opposite. ID does not claim science can detect supernatural causes. Instead, it claims that science can detect intelligent causes. Whether the intelligent causes detected by science are inside or outside of nature is beyond the scope of ID as a scientific theory. (See this link for the extensive documentation on this point given to Judge Jones).

Pro-ID biologist Scott Minnich addressed this issue in a statement during the trial which Judge Jones apparently chose to ignore:

Q. Do you have an opinion as to whether intelligent design requires the action of a supernatural creator?

A. I do.

Q. What is that opinion?

A. It does not.


Q. Does intelligent design require the action of a supernatural creator acting outside the laws of nature?

A. No.

(Transcript of Testimony of Scott Minnich pgs. 45-46, 135, Kitzmiller, No. 4:04—CV-2688 (M.D. Pa., Nov. 3, 2005)

One would think that Judge Jones would permit the proponents of intelligent design to define their own theory. Rather, Judge Jones let evolutionist Ken Miller define ID. Miller misconstrued ID as follows:

intelligent design is somewhat less scientific in terms of the prediction it makes than scientific creationism, but it shares that core belief, and that is that design can be attributed to a supernatural designer or creator.

(Transcript of Testimony of Kenneth R. Miller pg. 46, Kitzmiller, No. 4:04—CV-2688 (M.D. Pa., Sept. 26, 2005))

Miller, a critic, doesn’t speak for ID. This is especially true when the literature by ID theorists has made it clear that ID is not a supernatural explanation. Why didn’t Judge Jones let ID proponents define their own position rather than simply accepting the straw-man definition put forth by the Darwinists?

[2] ID using Failed Arguments of Creationism?
What are these “failed arguments of creationism” that Mr. Annas refers to? What Judge Jones actually said is that ID employs “the same flawed and illogical contrived dualism that doomed creation science in the 1980’s.” What Judge Jones means is that ID is simply a negative argument against evolution, which supposedly says that evidence against evolution therefore counts in favor of ID.

Again, Judge Jones simply adopts Ken Miller’s false version of ID, which says it’s just a negative argument against evolution:

It is what a philosopher might call the argument from ignorance, which is to say that, because we don’t understand something, we assume we never will, and therefore we can invoke a cause outside of nature, a supernatural creator or supernatural designer.


The only thing that they have left is an untestable assertion, and that assertion is that the living things on this planet are too complex to have been explained by evolution and, therefore, they must be the work of a supernatural designer creator.

(Transcript of Testimony of Kenneth R. Miller pg. 36, 46, Kitzmiller, No. 4:04—CV-2688 (M.D. Pa., Setp. 26, 2005); emphasis added)

I emphasized the “therefores” to show that Ken Miller misconstrues ID to claim that the inference to design is directly dependent upon a falsification of evolution. As we all know, evidence against one theory does not therefore, in-and-of-itself constitute evidence for another theory. There has to be a positive argument for the scientific explanation in question. ID proponents recognize this fact and they have defined their theory in a completely different way than Ken Miller defines it.

Judge Jones and Ken Miller ignore the fact that ID is based upon a positive argument that is not a mere “refutation of Darwinism, therefore ID.” Consider the positive explanation for design that expert witness Scott Minnich wrote with Stephen Meyer:

“Molecular machines display a key signature or hallmark of design, namely, irreducible complexity. In all irreducibly complex systems in which the cause of the system is known by experience or observation, intelligent design or engineering played a role the origin of the system. Given that neither standard neo-Darwinism, nor co-option has adequately accounted for the origin of these machines, or the appearance of design that they manifest, one might now consider the design hypothesis as the best explanation for the origin of irreducibly complex systems in living organisms. That we have encountered systems that tax our own capacities as design engineers, justifiably lead us to question whether these systems are the product of undirected, un-purposed, chance and necessity. Indeed, in any other context we would immediately recognize such systems as the product of very intelligent engineering. Although some may argue this is a merely an argument from ignorance, we regard it as an inference to the best explanation [21, 22], given what we know about the powers of intelligent as opposed to strictly natural or material causes. We know that intelligent designers can and do produce irreducibly complex systems. We find such systems within living organisms.

(Scott A. Minnich and Stephen C. Meyer, Genetic Analysis of coordinate flagellar and type III regulatory circuits in pathogenic bacteria)

According to Minnich and Meyer, ID is not “an argument from ignorance”, but is rather based upon “what we know about the powers of intelligent [causes].” As Minnich and Meyer write, “In all irreducibly complex systems in which the cause of the system is known by experience or observation, intelligent design or engineering played a role the origin of the system.” Thus, we have a positive argument for design that is not merely based upon the refutation of evolution, and is not an argument from ignorance. There is no question that Ken Miller is misconstruing the way ID proponents have defined their theory. Unfortunately, Judge Jones bought Ken Miller’s misconstruals of ID.

Again, why didn’t Judge Jones let the ID proponents define their own theory?


Casey Luskin

Associate Director, 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.



New England Journal of Medicine