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Will Baude

I had thought the better historical accounts of "incorporation" had placed it in the Privileges or Immunities Clause of the 14th Amendment, rather than the Due Process Clause. The Due Process Clause of the 14th Amendment was probably easier for the Supreme Court to use since it proceeded in stutter-steps here, but the P&I clause does have more historical evidence devoted to it, even if it is not enough to convince skeptics.

I haven't read all 160-odd comments on the last post, so maybe this was mentioned there.


Well explained.

For what it's worth, I prepared a response to Palooka yesterday which I was unable to submit for some reason. Lest he think I have ignored him, here is what I wrote:

..but this seems to me a great error. One cannot extrapolate microevolution into macroevolution (which requires the creation of NEW genes, not just rearranging existing gene frequency).

Macro- and microevolution are consistent with changes in gene frequencies and as far as I know neither requires new genes per se. Microevolution can be extrapolated to macroevolution because no mechanism has been found to prevent genetic differences within a species (microevolution) from accumulating over time until a new species can be defined (macroevolution).

The number of known new genes created by random mutation is quite small. Maybe you (or Dawkins) can provide a list of the known random genetic mutations which created a new, viable gene. When you get that list, then be my quest and "extrapolate" on it.

This looks a lot like a request to jump through hoops. It bears no obvious relationship to your original objection. What purpose does it serve?

There are many more ways a mutation can harm its carrier than help it, but a number of beneficial mutations are known. I have interpreted "viable" to mean "beneficial" to its carrier. Known examples of random genetic mutations which created a new, viable gene are described at these links:

http://www.talkorigins.org/pdf/faq-intro-to-biology.pdf at p. 9

All but one of these links is to talk.origins archive. It is an extraordinary resource which I highly recommend to you. I can almost guarantee your every objection to evolution and every reason for believing ID is addressed in this archive with references to the literature.


Catholic schools may have a good record, but there is no evidence that Catholic schools are good because of the actually education provided. As with all educational data, the greatest indicators of educational success are school choice and wealth (perhaps one in the same). The difference between the education actually provided in Catholic schools is of little or no difference. It is the kids already in the system who perhaps would have performed just as well in any other school. Putting in the "bad" kids won't rehabilitate them to achieve any greater success.


Judge Posner: no offense intended by my description of the Metzl opinion as "quirky." I simply meant that the issue was quirky, and it is a bit unusual for water skiing in Hawaii to be relevant to an establishment clause issue. I pointed out the opinion because it is interesting, and also it seemed to display a rather strict reading of the establishment clause, seemingly at odds with your economic analysis. Personally, I think it is questionable whether giving kids a day off of school can truly burden anyone's first amendment rights. It's certainly far less troubling, to me, than state involvement in or display of religious activity. And it's one of those cases that makes the public wonder whether the court decisions have become hypertechnical and far removed from the core values of the constitution.

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I don't like affirmative action. I think we would better help those who have been discrimianted in the past by helping them financially to get a good eductaion. I would also not design a system whereby one race can obtain more financial aid than another. I think it is best if we simply use an income test. Those who come from poor backgrounds get the financial aid. That is, for the most part, what we are already doing. But when affirmative action exists it really doesn't help minorities anyway. Then when a black man or a spanish american manages to becomes a doctor (through no help from affirmative action anyway) the rest of the world downplays his accomplishment and doubts his abilities.


Posner noted: "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."

That is at best half true.

There is one way to provide evidence to refute ID, i.e., obtain evidence against it.

Create life in a labortory from non-living matter. Without God's help, of course.

When you do that, let me know.


Are you up for vouchers for people who fly airlines that are not owned or even partially owned by govt or govt-agencies?


Concerning vouchers: are these really worth the trouble in an area with adequate public schools?

More specifically, is it worth the cost to the government of a tax expenditure to subsidize private school attendance of children from families who have reasons other than the low quality of local public schools to want to send their children elsewhere?

Personally I don't see that such tax expenditures address any pressing public policy issue. On the other hand, there are jurisdictions -- parts of the District of Columbia for one -- where the public schools are desperately inadequate and cannot be expected to reform except over many years. Under these conditions it seems to me that society has a strong interest in seeking out ways to rescue children from a substandard education.


"There is one way to provide evidence to refute ID, i.e., obtain evidence against it."

I think this is the stupidest thing I've read in the year 2005. You are saying that a theory is substantiated if we come up with it, attach a few stipulations to it, and find no evidence against it? To be taken seriously, ID needs to provide evidence supporting its theories independent of other fields. This is why evolution is a scientific theory and ID is not. You can't experiment in a lab and suddenly say "See that! See that there! God's hand baby! Alright, write that down..."

This is exactly why ID falls apart as a theory. It's supporters are guilty of petitio principii, or "begging the question". You assume as true that which you are trying to prove. Now excuse me, I have to recover from the massive aneurysm your statement gave me.


"Many rich people would continue to send their children to fancier schools than vouchers would pay for..."

I paid $80,000 over 13 years to get my two daughters through grades K-12 in a Catholic school which was built in 1910, had a leaky roof in the gym, etc., etc. Yet the academic scores of the children in that place were 15%-20% higher than those of any public school children within 40 miles. There was also damn little vulgar language in the halls or on the playground, and no unwed mothers....

Too many people err in associating the thought of private schools with "fancy" establishments. The physical plant and real estate in the average public school is probably twice as valuable as that of the average private school. Many, many private schools are dumps, physically. But they work, unlike the public schools, and every parent should be paying K-12 tuition these days, if he can beg, borrow or steal it.

Jon Rowe

Baude is correct about the P or I Clause being the proper one for incorporation of the BOR. And Thomas, as far as I know, accepts incorporation through the P or I Clause.

On religion, Thomas specifically has held that incorporation of the Free Exercise Clause IS proper (or would be proper if done through the P or I Clause). Remember if no incorporation then states would be free not only to respect an establishment of religion, but also prohibit the free exercise thereof and impose religious tests for public office.

On "establishment of relgion," the argument put forth by those like Thomas who 1) are originalists, 2) believe in incorporation generally, but 3) reject incorporation of the EC specifically, is that what is properly incorporated are individual rights, and while the free exercise clause relates to an individual right, the EC does not.

I think this analysis is more or less sound, but also that there are sound proper ways to vet much of what the Supreme Court has the Establishment Clause doing by tying it to individual rights.

For instance, Madison argued that Congressional Chaplains were unconstitutional, in part because it violated "equal rights" to have them.


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