The Ten Commandments--Posner's Response to Comments
It is not easy to respond to 160 comments; I can only discuss a handful, concentrating on the recurrent ones. But I must begin with an apology to sports fans for confusing "Texas Cowboys" with "Dallas Cowboys." The monument on the Texas State Capitol grounds is to the state's cowboys, not to the football team. My profound ignorance of sports stands exposed, and in some quarters my Americanism will now be questioned.
While I am being defensive, let me respond to the comment about "one of the quirkier Posner opinions of all time. Have you ever wondered what water skiing in Hawaii had to do with the establishment clause?" The opinion, Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995), is actually quite straightforward. The issue was whether Illinois had violated the establishment clause by making Good Friday a public school holiday. Christmas is of course a public school holiday, so the issue narrowed to whether there is a difference. The difference, which is important to the Supreme Court and so has to be to me as a judge whatever my personal views, is that Christmas has become so far secularized that making it a holiday is not widely interpreted as signifying governmental endorsement of religion or Christianity. Good Friday, it turns out, has not become secularized--except maybe in Hawaii, where it kicks off a spring holiday weekend. I emphasized in my posting that I was going to discuss the economics of the establishment clause, not the legalities, so I'm a little surprised at Professor Rubin's accusing me of trying to impose an economic understanding on the clause.
There is a lively debate in the comments over the issue of "incorporation"--was the due process clause of the Fourteenth Amendment (ratified in 1868) intended to incorporate the Bill of Rights in the sense of making them applicable to the states? The historical evidence is conflicting, but the proposition seems so implausible on its face that I would require a much clearer showing of the historical understanding to be convinced. Apart from the textual objection--the Bill of Rights includes a due process clause, so what literal sense can it make to say that the due process clause in the Fourteenth Amendment incorporated that clause and everything else in the Bill of Rights? But worse is the assumption that everything that Congress is forbidden by the Bill of Rights to do makes sense to prohibit every state, city, and village to do. That is so mechanical, so insensitive to different responsibilities of different levels of government.
But all that is water under the bridge, given that only Thomas among the current Justices questions the incorporation doctrine.
The bulk of the comments concern two issues that were remarked only in passing in my posting. One of these concerns my allegedly "snide" reference to "Intelligent Design," the anti-evolution theory now gaining traction in the nation's schools (there was an article on this in the New York Times this morning). I said it was a thinly disguised version of Biblical inerrancy. That statement was inaccurate, because as was pointed out in one of the comments not all adherents to ID believe that God created the universe, man, etc. in the mannner described in the Bible. However, it clearly is a religious conception, because "intelligent" design implies a designer, and what would you call such a designer but "God"? However, even if it is not a form of fundamentalist religion, it doesn't, in my view, belong in school. It is one thing to note problems with Darwinism, and to discuss the interesting question whether any theory can be truly scientific if it cannot be supported or falsified by actual observations, but it is another to teach, as the IDers want to do, that there are these competing theories, evolution and ID. ID does not have the structure of a scientific theory, there is no evidence for it, and there is no way to obtain evidence for (or for that matter against) it.
The other issue, peripheral to my posting but obviously not to the commenters, concerns school vouchers. There were many interesting comments, and it is an issue to which Becker and I should probably devote a future posting to. The place to begin in thinking about the issue is with the difference between the state's mandating and subsidizing a service, on the one hand, and providing the service itself, on the other hand. The government can require that children be vaccinated and pay for their vaccination without manufacturing vaccines. Similarly, it can require that children attend school and pay for their schooling without operating schools, something it doesn't seem to be particularly good at; politics and teachers' unions drive up costs and drive down quality. The government would have to impose minimum standards on all voucher-supported schools, as it does now on private schools, but that is different from ownership and control. The government used to regulate railroad rates, but, unlike the practice in many other countries, it did not own the railroads.
A voucher system is a first step toward privatizing education. Means-tested voucher entitlements would enable parents to select a school even if they had no private means. Many rich people would continue to send their kids to fancier schools than vouchers would pay for, but that would be no different than under the current system of public and private education.
To return to the subject of my posting, I think it would be a great mistake to confine vouchers to secular schools, whether public or private. Catholic schools in this country have a good record and provide a type of education that is highly suitable for some children. Most of the education provided in Catholic schools is secular, and the amount of the voucher could be limited to the secular component.