I think the New York Times is being rather conciliatory on the issue of intelligent design, and in doing so illustrates what I believe to be the flaw in the entire discussion. I don't necessarily think, as some do, that the problem with intelligent design is that it fails to confine religion and science to their proper spheres. For one thing, religion defies nearly every sort of definition, since its nature and extent are determined solely by the whims of its founders and adherents. It irritates me, therefore, when the self-proclaimed arbiters of such things take the attitude that religion should be confined to affairs of the spirit, and science to the natural world--a sort of you-play-in-your-half-of-the-sandbox compromise that politicians might broker, but which is antithetical to the boundless claims of religion. I think, rather, that it is the purpose of science that has been misapprehended by most in the controversy. In particular, I take issue with the assertion that science's purpose is to "explain" things.

The issue of scientific explanation is touched on by the latest post at Querencia. The post itself concerns the relationship between art and science, and I won't comment on it. But it quotes a passage from one of Wendell Berry's more recent works, in which, characteristically, the author gets worked up about the inability of science to explain certain things, like art and other good stuff. Although Berry is never one for nailing down his terms, it seems from the context that by "explanation" he means something like reducing things to their elements. That is, he seems to think of scientific explanation as a process in which a multiplicity of things are reduced to their common principles, a very Peripatetic view of the scientific enterprise. He is terribly worried that just because we can discover the principles of certain things we will think we can do the same with all things, which grates on his artistic cum agrarian spiritual sensibilities. But I would advise him not to get his knickers in such a twist over science itself. The project of science since the renaissance has never been to explain things in the sense of discovering their fundamental nature. Indeed, the very success of science over the past several hundred years is entirely a consequence of its limited scope. Science's sole purpose, by definition and necessity, is to order phaenomena.

Science, as such, has only been concerned with one thing: predicting what we will perceive (there is, from an epistemological perspective, a potential disjunct between what one person and another might perceive, but science has given up on this issue long ago). That is to say, the only purpose of science is to order phenomena in the most comprehensive way possible, with the success of that project being determined only by how neatly the new phenomena fit into the old classifications. Thus, for example, the purpose of astronomy is to classify the movements of celestial bodies, and a good astronomer can predict eclipses. If he takes to imagining what the heavens tell him about the nature of God, he becomes a mere astrologer. The animating force behind scientific discovery is always a search for the power to predict, and often the power to manipulate what we see. This assertion is true even of sciences such as paleontology and evolutionary biology: even they can only be confirmed or disconfirmed by their ability to predict present phaenomena--the rest is woolgathering.

The problem arises when the statements made of phaenomena are construed to be statements about some thing, that is, that there's a world beyond the phaenomena out there that has some significance beyond the perceptions we have of it. To ascribe mysterious significance to phenomena is all very groovy, of course, and is what religions mostly concern themselves with: but science can't care about such claims. To the extent that it does care, it ceases to be able to make the unequivocal statements that it must. The purported controversy between actual science and theology is therefore strictly manufactured. To the extent that religious doctrine conflicts with what scientific observations imply about the "things" that are conceived to underlie them, it is quarreling with a straw man, since science can make no claims on this score. I, as a Humean, might scoff at the notion that we can ever "pretend to know body otherwise than by those external properties, which discover themselves to the senses"*; but everyone's entitled to his opinion. When one's receiving the Eucharist at a protestant church, I can assure you that the portions handed out in clear plastic receptacles, with none of the surreptition employed by papists, gives ample assurance from all five senses that one is consuming nothing but grape juice and crackers, yet it is in the refusal to believe these sensory impressions that religion resides. Furthermore, to the extent people actually deny the sensory impressions themselves, they are simply lying (or else, as mentioned above, there is no commonality of experience, and we all have much bigger problems).

I therefore contend that the N.Y. Times article spends an unnecessary lot of argument dithering over various definitions of the scientific method, in order to make the assertion that by removing the requirement that explanations be "natural" from the definition of science, the Kansas Board of Education has altered the fundamental traditions of scientific philosophy, as defined by a designated list of pointy-heads. The flaw in both definitions is that they both claim science explains things, though it does nothing of the kind. I find particularly muttonheaded the parting shot about how science is not incompatible with religion because both are ways to "understand the divine." Any remarks Galileo may have made to that effect assuredly derived from his and his audience's undue familiarity with Aristotle, and consequent inability to penetrate entirely the intellectual fog of the dark ages. As an example of science's true allegiance and purpose, witness that Galileo himself was not a cleric, but calculated gunnery tables for a living. I don't by any means wish to say that one cannot seek the divine by perceiving the natural world (as opposed to classifying one's perceptions of it), but that's a rather different subject.

* David Hume, A Treatise of Human Nature 64 (L.A. Selby-Bigge ed., 2d ed., 1978).

I must say I'm rather pleased with what I've heard about Judge Alito. He seems a reasonable sort, hated by all the proper factions (People for the American Way, Lambda Legal, etc.). Indeed, if the accounts I've read of his dissent in the machine-gun case are accurate, he was an early supporter of the new federalism, which is almost more than I can say for Scalia at this point. Witness how admiringly I gaze on his august countenance, unaware of the treachery that lurks in his heart even then, but I digress. In any case, the replacement of O'Connor with someone willing to constrain the subject matter of federal regulation would have no net effect, since she herself was one of the dissenters in Raich. It is, rather, on individual rights issues that we could probably expect better things from Alito than O'Connor.

One of the cases I've seen mentioned in the news as being one in which Alito's participation could alter the result is Rumsfeld v. Forum for Academic and Institutional Rights, a case out of Alito's own Third Circuit, but on whose panel he did not sit. The case is not, as FOX News claims, "a gay rights appeal that involves the Pentagon's 'don't ask, don't tell' policy." The legal issues have little to do with the military's policy on homosexuality, and nothing whatsoever to do with "gay rights." It is, rather, a First Amendment free expression case, challenging the Solomon Amendment, which conditions the receipt of federal funds by academic institutions on their granting military recruiters the same access and favor as the institutions give to other employers. Needless to say, most fashionable universities want nothing to do with the military, and resent being obliged to facilitate military recruiting in any way. In particular (and this is where the ignorant might derive the notion that homosexuality is somehow at issue), the plaintiff universities complain that allowing military recruiters on campus dilutes their message of tolerance and inclusiveness, because the military won't hire overt homosexuals. I suspect the outcome will depend on whether the Court buys the distinction the Third Circuit draws between this case and the National Library Association one decided in 2003.

But I would like to air one misgiving I have about Alito's opinions, as reported by newspapermen, which is his purported indulgence toward free exercise claims, and reluctance to apply the standard set forth in Employment Division v. Smith. Smith, as everyone knows, was the one involving religious use of peyote by members of the "Native American Church," and established the standard under which courts review claims that government is prohibiting a person's free exercise of religion, in violation of the first and fourteenth amendments to the Constitution. The case arose out of the plaintiff's being fired from his job for using peyote, and subsequently denied unemployment benefits by the state of Oregon. The case was only decided by the Supreme Court after the Oregon Supreme Court determined that state law prohibited the use of peyote entirely, with no exception for religious use. Consequently, the reasoning of Scalia's opinion is directed largely at the validity of this broader prohibition, rather than at the issue of unemployment benefits, on a sort of greater-includes-the-lesser theory. Scalia held that the Constitution does not prohibit states from enacting laws that place incidental burdens on religious activity. As he reasoned, religious activity potentially includes every sort of activity, and so carving out exceptions for every religious practitioner either makes every man a law unto himself, or places courts in a role that would almost certainly be repugnant to the framers--of deciding what is legitimate religious practice and what isn't. Instead, the Court held, the standard should only be one of whether government, in enacting the law, intended to place a burden on the practice of religion. This standard also has the advantage of requiring courts to perform a function to which they are better suited: lawyers are lousy at making policy decisions about whether a government objective is more important than the religious practices of individuals, but they are well-trained in determining the purpose of laws.

The new standard didn't sit well with a large section of the public, and therefore with elected politicians. The Congress passed the "Religious Freedom Restoration Act," which purported to ratchet the free exercise standard up to include the old effects test. But the Court rebuked it in City of Boerne v. Flores, holding that, because the Constitution does not protect free exercise against incidental infringements, Congress was not acting under its Fourteenth Amendment powers when it enacted the R.F.R.A., which was not supported by any other power and consequently invalid as ultra vires. (Cf. my earlier post on Tennessee v. Lane.) Evangelicals still don't like the decision, however, which is probably why social conservatives are proclaiming with such relish that Alito doesn't like it either. I don't really care as a matter of outcomes--O'Connor was the only justice really to bail on Smith when it came down to deciding Boerne, so Alito's appointment won't change anything even if he doesn't like Smith. But I do actually care about the shift from "balancing" to "intent" tests, which I consider one of the most significant contributions to judicial sanity by the Rehnquist court, and one that might be furthered by O'Connor's absence. Indeed, the only way I can begin to forgive Scalia for concurring in Raich is by telling myself that he did it all in the interest of returning to a purpose-driven analysis to the enumeration of powers (though a somewhat muddle-headed one), but the road to reconciliation will be long.