Ironically, of the last fourteen Supreme court justices (starting with Warren Burger) only two were appointed by a Democratic president.

Those two are Ruth Ginsburg and Stephen Bryer. They both had over a dozen years of experience on the court of appeals prior to being nominated to the Supreme Court.

From this link discussing Ruth Ginsburg…

Standing by President Clinton's side on Monday afternoon as the first Supreme Court nominee of a Democratic President in a generation, Judge Ruth Bader Ginsburg relied on an unlikely source to explain her judicial philosophy to a public that knew her scarcely, if at all.

She approvingly quoted Chief Justice William H. Rehnquist, a bete noire to Democrats for most of that time, as saying that a good judge is bound to apply the facts and the law to come up with a decision, even if it is "not what the home crowd wants."
…
The difference is not over the ultimate goal of a right to abortion fully anchored in the Constitution and secure against political undermining. Rather, Judge Ginsburg's lecture reflects a long-running debate about whether that goal could have been better achieved by another route, as a matter both of constitutional doctrine and judicial strategy, and over what lessons to draw from the tortuous history of abortion rights in the 20 years since Roe v. Wade was decided.

Judge Ginsburg's critique of Roe v. Wade is twofold. First, she said in the New York University lecture, as she has written for years, the right to abortion might have been more secure had it been grounded in the concept of women's right to equality rather than in the right to privacy.
…
The second part of Judge Ginsburg's critique concerns the scope of Roe v. Wade, and it is this part that has made some abortion-rights leaders, including Kate Michelman of the National Abortion Rights Action League, somewhat wary. Judge Ginsburg has argued that by issuing a broad ruling that swept most state abortion laws off the books, the Court created an inherently vulnerable precedent that led to a backlash and short-circuited a liberal trend then under way in the states.

Contrast that to Clarence Thomas who only had a year being a Judge prior to being nominated. Thomas doesn't say much more publically than he was a victim of a high-tech linching during his confirmation hearing and exclaiming "whoop-de-damn-do" when told he was nominated 52 to 48.

Here is something interesting from Scalia…

"A little-noticed bombshell was dropped by Justice Antonin Scalia in a recently released biography of Justice Clarence Thomas. It poses an interesting dilemma for President Bush this election season, in that it raises the question of whether he should continue to cite Thomas as one of his model Supreme Court justices.
…
Scalia's pointed comments to Foskett complicate Bush's support for Thomas considerably. Specifically, Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

Stare decisis is a fancy Latin term that stands for a bedrock proposition of U.S. law: that the Supreme Court will uphold precedent and not disturb settled law without special justification. As Justice Thurgood Marshall explained for the court in 1986, stare decisis is the "means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion."

link

TP: However, to modify this ethically would require following the agreed procedures for modifying the constitution. A less ethical way is to fill the Supreme Court with justices more willing to follow their moral judgments than their ethical commitments. As an added bonus, the side promoting this unethical action could loudly accuse those following precedent of being "activist judges".

TP, don't both sides seek to appoint judges favorably disposed to interpret the constitution in a manner agreeable to them? Is there not a real distinction between the words of the constitution and its interpretation?

It's not in the 14th.

The Supreme Court thinks otherwise.

It wasn't seen as part of the 14th for decades.

By ther very article you quoted, historians have disagreed on that point. Some feel that it was intended to be a part of the 14th from the very beginning, others don't.

And the courts have selectively decided what was covered by incorporation and what wasn't. All without any textual basis in the 14th or the rest of the Constitution.

That seems to be overstating the issue considerably. Amendment 2 has its own limiting clause, altough I agree that in many jurisdicitons the limits have quite possibly unconstitutionally restrictive. Has Amendment 3 (no quartering of soldiers) ever been brought before the Court, and what would constitute quartering of state troops in this modern age anyhow? How often do you see capital civilian cases without a Grand Jury indictment (Amendment 5), or jury trials denied, or irregular appeals (Article 7)? Most likely, the courts haven't ruled on 3, 5 (Grand Jury section), or 7 because it has never come before the Court, since 1947 anyhow. If you have evidence otherwise on those three, I'm all ears.

Now judging from TP's claim about the proper way to amend the Constitution, that ain't it. But I'm sure he's not upset, because he likes that interpretation.

Absent an clear indication, perhaps there should be an Amnedment that either holds states to Bill of Rights or frees them from it. Until such time, it seems premature to say either side is acting unethically.

Thank you for the information and I will look into it further.

I agree that it would be unethical for the government to treat some of the bill of rights differently than others. I am inclined to believe that the right to bear arms (2nd amendment) isn't being enforced as well as other rights, and that is wrong. Personally, I don't like the idea of people having the right to carry fully automatic weapons on public streets. But the ethical thing to do is amend the constitution, not play unethical games.

Even if your implication is right that the 14th amendment has been unethically interpreted, the interpretation happened at the Supreme Court level and that is where it needs to be fixed. Circuit judges, like Judge Jones, are ethically required to follow precedents set by superior courts.

The plaintiffs availed themselves of the legal precedent of taking this to federal court because they honestly felt the school board's actions violated the constitution of the United States.

The plaintiffs acted in accordance with the law, told the truth (especially under oath) and were honest and open about their motives. Their actions were consistent with their stated motives.

The defendants on the other hand"¦

http://www.usconstitution.net/...

Incorporation

One of the greatest changes in the interpretation of the Constitution came with the passage of the 14th Amendment after the conclusion of the Civil War. It was designed to assist newly freed slaves in the transition to freedom and to protect them from acts of the Southern states, and also to overturn the decision in the Dred Scott case that ruled that persons of African descent could not be citizens of the United States even if they were born in the United States. The amendment was successful in this endeavor, legally, if not in reality.

But this sentence had and continues to have long-lasting implications on the application of the Bill of Rights to the states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The "Due Process Clause" has been interpreted as applying the Bill of Rights, which lists the rights (or privileges and immunities) of the citizens, to the states. Known as "incorporation," the application of the Bill to the states did not come all at once, nor is incorporation complete. Even today, there are some parts of the Bill which have not been incorporated. The process began unsuccessfully in the late 1800's and continued unsuccessfully right up until the 1930's. In 1947, however, in Adamson v California (332 U.S. 46 [1947]), the Supreme Court began to accept the argument that the 14th Amendment requires the states to follow the protections of the Bill of Rights. Historians both agreed and disagreed with the Court's contention that the framers of the 14th Amendment intended incorporation since its passage … but historians do not sit on the Court. Their opinions were less important than those of the Justices.

The process of selectively incorporating the clauses of the Bill of Rights is agreed to have begun in Twining v. New Jersey (268 U.S. 652 [1925]) which contemplated the incorporation of some of the aspects of the 8th Amendment - not because they were a part of the Bill of Rights but because they seemed to be fundamental to the concept of due process. This process of incorporating parts of the Bill of Rights because of their connection to due process began to run in parallel with the selective incorporation doctrine, where parts of the Bill of Rights were ruled to be enforceable on the states by virtue of the 14th Amendments, whether or not due process applied.

Thus in the early 1960's, the Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures were quickly incorporated. Since the early 60's, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment).

It's not in the 14th. It wasn't seen as part of the 14th for decades. And the courts have selectively decided what was covered by incorporation and what wasn't. All without any textual basis in the 14th or the rest of the Constitution.

Now judging from TP's claim about the proper way to amend the Constitution, that ain't it. But I'm sure he's not upset, because he likes that interpretation. Ergo it's ethical. Some justice interpreting it another way he will not like, and he will rant about how unethical it is.

But I just see that as different.

So what law did Congress make in Dover? None, I don't think.

I am sure that the you are aware that the 14th Amendment grants the same immunity from a State-sponsored religion that the 1st grants from Congress.

So, didn't the state of PA set up local school boards, and wasn't the school board of Dover duly elected democratically? And aren't curriculum decisions left to their discretion? So why did folks go running to the federal courts? Cause the laws now didn't give them the outcome they want, so they want a do-over.

Because a body of the State was acting in breach of the 14th Amendment.

Do you agree it was an ethical decision to decide the Dover statement was an endorsement of religion even if you disagreed with it?

Do you think I'm unethical? If so, why?

I think we've been through this once before. Haven't a clue whether you or the decision was rendered "ethically", nor is it something I obssess about. You're the guy who is passing judgement on folks ethics, not me.

May I suggest we make agreements and laws via a democratic process? Then we set up a code of conduct where we expect people to adhere to their agreements.

So, didn't the state of PA set up local school boards, and wasn't the school board of Dover duly elected democratically? And aren't curriculum decisions left to their discretion? So why did folks go running to the federal courts? Cause the laws now didn't give them the outcome they want, so they want a do-over.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

So what law did Congress make in Dover? None, I don't think. But now you wish to insert "Supreme Court []justices more willing to follow their moral judgments than their ethical commitments" because you like how they rule. I understand that. But you don't like it when your opponents want to play the same game. I'm not sure about the ethics of that, but it sure doesn't seem intellectually consistent.

To my "ethically" you responded with your usual…

Ah yes, you are in favor of that which you are in favor of.

I suggest you might be projecting.

I disagree with Walt Brown (http://www.creationscience.com...) but I think he is acting ethically.

I don't like the NRA, but I think they are acting ethically when they attempt to preserve the 2nd amendment.

Do you agree it was an ethical decision to decide the Dover statement was an endorsement of religion even if you disagreed with it?

Do you think I'm unethical? If so, why?

But what do we do about all those who favor something else?

May I suggest we make agreements and laws via a democratic process? Then we set up a code of conduct where we expect people to adhere to their agreements.

We might even call that "ethics".

So nice of you to claim to speak for all those groups…

I did not, and do not, claim to speak for these groups. They speak for themselves. A lot of what they said in public forums and editorials was used as evidence in the Dover trial transcripts.

You wrote…

The "anti-religious side of an issue" would be equally problematical.

Government actions curtailing the free practice of religion would be problematical. There is nothing wrong with the government being seen as NOT endorsing religion or even endorsing non-religion.

Religious organizations are tax exempt. Do you think organizations fighting religion are, or should be, tax exempt?

Your comments about the Lemon test just exemplify why it is fatally flawed and will soon be dispensed with. Whether an ID case or some other issue is the catalyst I cannot predict.

I wasn't talking about the Lemon Test, I was talking about the Endorsement Test being applied BEFORE the Lemon Test. Are you going to do away with the Endorsement Test too?

Why not just go to root of the problem?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

However, to modify this ethically would require following the agreed procedures for modifying the constitution. A less ethical way is to fill the Supreme Court with justices more willing to follow their moral judgments than their ethical commitments. As an added bonus, the side promoting this unethical action could loudly accuse those following precedent of being "activist judges".

Some of your other comments aren't related to religion at all, but why you and others disliked the statement. But that certainly isn't a Federal issue.

You claim the dispute is a "waste of energy". Nobody is requiring you to waste any energy on it at all. That's your choice.

I disagree that a violation of the constitution isn't a Federal issue.

I consider it my duty to ethically expect the constitution to be followed. Yes, I guess it is technically a choice whether to do my duty as a citizen or not.

P.S. to stay topical (shameless promotion of Mike Gene's book); Have you read it yet?

"…ethically"

Ah yes, you are in favor of that which you are in favor of. But what do we do about all those who favor something else?

That is how the average man in the street sees this. . .the citizens of Dover and, especially, the students of Dover schools saw it that way.

So nice of you to claim to speak for all those groups, but I'm skeptical you can. You talk about "the religious side of an issue" without giving us any objective definition about what that means. The "anti-religious side of an issue" would be equally problematical. Your comments about the Lemon test just exemplify why it is fatally flawed and will soon be dispensed with. Whether an ID case or some other issue is the catalyst I cannot predict.

Some of your other comments aren't related to religion at all, but why you and others disliked the statement. But that certainly isn't a Federal issue.

You claim the dispute is a "waste of energy". Nobody is requiring you to waste any energy on it at all. That's your choice.

Good Morning.

You wrote…

We've resolved (temporarily) the issue in Dover, so now its on to the other 10K (or however many there are) school districts in the country.

Such a waste of energy for an unconstitutional cause. Wouldn't it be better to focus on the science? Quantum physics holds a lot of promise for overturning the status quo, ethically.

You asked…

Now, what religion is being endorsed there?

Well, let me start with the first paragraph of the article you kindly provided…

How did we become who we are today? Was it God who sparked the beginning of mankind, or was it a slow, incremental process from one-celled amoeba to high-powered executive, or both?

That is how the average man in the street sees this. The ID Movement leaders allow and often out-and-out promote this either/or choice. It is only when the possible legal ramifications are thought about that the "way down the totem pole" ID alternatives are brought into play.

Even if by some divine miracle the Discovery Institute and other ID Leaders actually weren't trying to promote a religious agenda, the citizens of Dover and, especially, the students of Dover schools saw it that way.

The legal standard for the Endorsement Test is perception, not actual intent. The legal precedent in the Pennsylvania circuit is to apply the Endorsement Test before the Lemon Test. That is why the defense team argued so vigorously for Judge Jones to ignore this legal precedent and apply only the Lemon Test. Once the defense lost this argument, they lost the case.

Note, the constitution has government prohibitions concerning religion in general, not "a religion". This distinction wasn't obvious from the phrasing of your question.

Now, if ID proponents were to start actively promoting a "Third Choice" that is neutral on the subject of God that might be a way around this stalemate. Quantum Mechanics has scientifically recognized evidence and potential mechanistic explanations that support a scientific hypothesis that challenges "Darwinism".

ID SCIENCE, imagine that.

As to the statement itself"¦

"The Pennsylvania Academic Standards require students to learn about Darwin's theory of evolution and eventually to take a standardized test of which evolution is a part."

Pennsylvania Academic Standards require students to learn about a lot of things but the administrators focused on a specific topic they wish to call into question. The specific topic is something religious organizations tend to want questioned. The average person would see this as the school administration endorsing the religious side of an issue. The fact that is was being presented to impressionable students by their teacher's superiors made it even worse. The statement also suggests that they are being forced to teach something they do not wish to in the name of standardized testing on this specific topic.

Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. The theory is not a fact.

Once again this would be seen as the administration endorsing the religious desire to cast doubt on a specific theory. There are plenty of scientific theories, for example the Quantum Theory and the Gravitational Theory. The Quantum Theory is generally thought to be incomplete (not for long, IMO). The Gravitational Theory is pretty much known to be incorrect (waiting on Quantum Theory). The Evolution Theory is one of the more stable scientific theories. While it can still be modified, even significantly so, it appears the administration is picking on it for religious reasons. When asked by the administration, the science teachers suggested removal of the sentence "The theory is not a fact." because it misled students about science. The administration's refusal to this compromise is one of the reasons the teachers refused to read the statement.

The reference book, "Of Pandas and People,"…

This referenced book includes this description of Intelligent Design…
"Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact: Fish with fins and scales, birds with feathers, beaks and wings, et cetera."

It appeared to be a relabeling of Creationism. Especially, when artifacts from the relabeling efforts were still in the book (i.e. "cdesign proponentsists")

There are other problems with the statement that came out in the trial, but these were the main ones.

Once again, it doesn't matter for the purposes of the Endorsement Test what the Discovery Institute or ID supporters argued after the fact. The perception to the citizens of Dover and, especially, the impressionable students in Dover schools that this was an endorsement. Some approved of the endorsement, some disapproved of the endorsement, but the vast majority saw it as endorsement of religion.