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From the July/August, 2004 issue of Touchstone


Darwin or Lose by Edward Sisson

Darwin or Lose

Evolution’s Defense Attorneys Are Intent on Winning—Even If They’re Wrong

by Edward Sisson

Scientists used to believe that now-submerged land bridges once connected the continents, which they thought to be fixed and immobile. They had to explain how identical fossils of land animals could be found on continents separated by vast seas. No one had ever seen the continents move, and the thought that they might sounded fantastical. Thus, bridges must once have existed for the animals to walk across. But by the 1950s, scientists had collected sufficient data about the sea floor to show that there had never been any bridges, sparking an acrimonious debate until scientists developed the plate tectonics theory.

The parallel between the scientific mainstream’s now-rejected belief in land bridges and what is happening in evolutionary theory today is quite striking: both cases show a persistent belief in a theory unsupported by direct observation. “Unintelligent evolution”—the term I use to describe the various neo-Darwinian theories of evolution and the paradigm that encompasses them all—assumes that there cannot be an intelligent designer (human beings have, allegedly, never perceived one), just as the advocates of land bridges assumed that continents couldn’t move (human beings had never seen them move). Thus, to establish the factual existence of a land bridge or of the mechanism for change in species, it is necessary simply that a scientist imagine a solution in keeping with the assumption.

That imagined solution, being the only one consistent with the assumption, necessarily becomes a fact, even if there are astounding odds against it. Only its details await actual observation. This two-stage presentation—the “fact” of common descent and the “solution” of how it actually works—is exactly the approach used in biology textbooks to describe evolution.

A Fundamental Debate

The debate over biological evolution is unlike any other debate in the realm of science, because a fundamental question, as old as human society itself, is at stake: whether an intelligence we cannot directly perceive affects us through the application of its intelligence. As popular opinion (and thus government, with its money and power) shifts in the answer it gives to this question, the relative social prominence, prestige, and power of two large social groups, scientists and the religious, tip back and forth.

In this debate, the advocates of unintelligent evolution have assumed much the greater burden. They have asserted that they have proven that no life form—not one—required the aid of a designing intelligence to come into being. Blind and purposeless material processes alone were required. This claim is the foundation for their demand that only theories of unintelligent evolution be taught in school.

But their assertion is not proven. In fact, in the book from which this article is adapted, the authors, proponents of a theory known as intelligent design (ID), discuss facts that demonstrate that it has been disproved, and that an intelligent cause is necessary to explain at least some of the diversity of life as we see it. The observed data, and the mathematical/statistical analysis of that data, establish at a minimum that at least some, and perhaps most, of the diversity of life must have occurred through intelligent direction.

Yet can the reigning explanation really be false? The proponents of unintelligent evolution can easily marshal thousands of Ph.D.s to attest to the truth of their theory. Can all these Ph.D.s really be wrong?

Yes. But if the support for the unintelligent-evolution theory is so weak, and the challenges it must surmount so overwhelming, how do we explain the refusal of the scientific establishment to throw up its hands and confess that, 150 years after Darwin, none of the observed data is truly evidence proving the proposition that unintelligent evolution explains all the diversity of life?

Here I believe that my experience as a litigator (I am a lawyer in private practice) provides several insights, because the debate over evolution is conducted by the science establishment as a kind of litigation, with the science establishment functioning as an advocate. We who observe that debate must understand how the science establishment has deformed the debate: first, by applying an advocate’s attitude to the facts; second, by assigning and defining the burden of proof challengers must meet; and third, by engaging in personal attacks on the “other side’s” scientists, which includes applying different rules to themselves and the challengers.

Shaping Data into Facts

First, and most important, one of the things I have observed from the practice of law is a particular mental process lawyers go through when they take a case. The lawyer immediately inquires what result the client wants, and asks himself first not “What are the facts?” but “What facts must be true so that my side can win what it seeks?”

After determining what facts need to be true for his client to win, the lawyer then looks at the data and the applicable law and in every instance asks, “Can I understand this data, in light of the applicable law, to be evidence proving the facts that need to be true for my side to win?” At no time does the lawyer need to step back and say, “What is my assessment of this data independent of the interest of my client?” The lawyer’s independent assessment of the facts is irrelevant to the client’s goals.

In the evolution debate, this lawyerly process is strongly at work. Each scientist also has a client: the scientific establishment itself, which controls his career. As a client, the scientific establishment has economic and sociological interests, and as in any human organization, the people who most effectively advance those interests are the ones chosen to lead the establishment.

The scientific establishment gains a tremendous social benefit from the widespread teaching of unintelligent evolution. As the philosopher Daniel Dennett wrote in Darwin’s Dangerous Idea: Evolution and the Meanings of Life, Darwin’s theory is a “universal acid” that corrodes “the fabric of our most fundamental beliefs.”1 Why would a scientist endorse a universal acid? Because the only belief that this acidic theory does not corrode is the belief in the science establishment—the belief that scientists are the persons in our society best qualified to pronounce the fundamental truths of our physical existence.

I submit that it is to promote deference to scientists that the scientific establishment makes and distributes in our schools “Darwin’s acid,” an acid that corrodes the allegiance of students to any other class of truth-pronouncers except scientists. That is the reason they insist that high-school students must learn this theory without being exposed to any of its weaknesses and inadequacies—so that deference to scientists becomes a foundational assumption of their mental make-up before they are old enough (as they might be were they first exposed to the theory in college) to question both the theory and the authority of the scientific establishment that is built on it.

The sociologist Bernard Barber of Columbia University argued that sometimes the scientific establishment may resist evidence that challenges a prevailing theory, not because the theory defeats those challenges on the merits, but “due to the direct operation of cultural (e.g., received ideas) or social-structural (e.g., social-status differences) factors.”2 Scientists will claim pure objectivity for their positions, but the world that dominates them affects what they think and say.

This is a serious structural flaw in the conduct of modern science, one that finds its most powerful expression in the debate over the origin and subsequent diversification of life. Preserving the preeminence of a naturalistic, non-intelligent, non-religious explanation for the origin and diversification of life serves the sociological function of privileging the scientific establishment as the group vested by our society with the right to pronounce fundamental truths about the physical world that affect our day-to-day lives, displacing and keeping in check the religious establishment (and any newly emerging religious groups), which formerly competed effectively for that social role.

Greater Power

In short, acceptance by the public of the truth of unintelligent evolution gives to scientists a greater share of power, prestige, and income that otherwise would go to the religious. The success of the scientific establishment in this debate has enabled it to humiliate the religious and drive them from the podium from which truths about the physical world are pronounced.

That is why the scientific establishment vigorously resists abandoning unintelligent evolution. It may shift from one particular version of the theory to another—from neo-Darwinism to punctuated evolution to some other version that might be developed—but it will never accept the concept that some form of intelligent designer must exist to explain some of the data we observe. The details may await observation, but the theory remains a fact.

As the late Sir Fred Hoyle, an astronomer at Cambridge University, put it, “It is a mistake to suppose that science is an unswerving pursuit of objective truth. Partially it is, but only to the extent that the truth does not turn out to contradict what has already been taught in the educational process.” In relation to our subject, he argued that the things that are “wrong” with evolutionary theory have “never had a fair hearing” because

the developing system of popular education [in Darwin’s day] provided an ideal opportunity for zealots who were sure of themselves to overcome those who were not, for awkward arguments not to be discussed, and for discrepant facts to be suppressed. This was because popular education created a body of students who . . . had of necessity [to earn their livings] and because it is only students from privileged backgrounds who can afford to adopt views contrary to what they are told.3

There is also a reason unique to science, and absent from law, that pressures scientists to close their minds to the possibility that the “other side” might be correct in arguing that unintelligent evolution cannot explain all of the diversity of life on earth, and that an intelligent designer is necessary to explain at least some of it.

In litigation, if a lawyer forms a private belief that conflicts with the presentation he needs to make in court, he is expected to keep that belief private. The lawyer’s obligation is not to be actually sincere but to appear sincere. Thus, there is no danger to the lawyer’s livelihood if he develops a private understanding of the data that conflicts with the understanding he will present in court.

But in science the rule is different. Scientists are supposed to be actually sincere. They are supposed to develop genuine, individual opinions about the data and then express those opinions. Thus, it is vital to a scientist’s career not to develop opinions that, if expressed, will end that career, because opinions once developed are supposed to be expressed, not hidden in favor of expressing opinions the scientist does not sincerely believe. We may call this the “sincerity rule.”

As a practical matter, no one who has risen to the leadership of a major American scientific institution can publicly abandon the paradigm of unintelligent evolution—censorship, removal from office (unless he has tenure), the vanishing of research funds, and ostracism are sure to follow. Thus, there is simply no reason for scientists to take the time to consider the challenges to the paradigm and develop an individual response, because if they reject the paradigm, they can only either suppress their opinion and violate the sincerity rule, or else express it and likely end their careers.

In sum, in litigation, opposing lawyers are primed to reject every statement by the other side because there is no advantage for them to consider that the statements might be true. I see that mental dynamic again and again within institutional science in the debate over the origin and diversification of life. I do not see that psychology in the proponents of intelligent design. The fact that this psychology is missing from their work is one reason why I have come to trust them more than their opponents in the debate.

Burdened with Proof

Second , a key issue in any litigation is the challenger’s burden of proof. What must the challenger show in order to succeed? To apply our litigation analogy, in a criminal case the prosecution offers a “prevailing theory”: “ X did the crime.” The defense counsel’s job is to rebut the prevailing theory, but to do so successfully, he need not offer an alternative theory to explain the facts that led to the prosecution.

While Perry Mason may always have exposed the “real culprit” in the process of acquitting his client, in reality, defense counsel never provide the real culprit to get their clients off the hook. No one is required to be a Perry Mason. A lawyer can have a very successful career as a defense counselor proving that the prosecution’s theory is incorrect, without having to go further and prove an alternative theory to explain the events that led the prosecutors to advance the flawed theory they proposed. The defense lawyer can quite happily admit complete ignorance as to who is the real culprit.

In science, by contrast, the scientific establishment (the prosecution) demands that those who challenge its theory (the defense counsel) must produce the “real culprit.” No challenger is permitted to speak unless that challenger is also a prosecutor, advocating a different explanation. Allegiance to the existing theory cannot be broken unless some other scientist shows not only that certain of the data cannot reasonably be understood as being consistent with the theory, but also that this data supports some new theory. It is as if, in law, every lawyer worked for the prosecutor’s office, and career advancement depended solely on the number of convictions he obtained, not on the number of innocent people he cleared of false charges.

As Stephen Jay Gould put it, “The lesson of history holds that theories are overthrown by rival theories.”4 In his book The Structure of Scientific Revolutions, Thomas Kuhn has made the same point.5 In other words, once science has claimed to have knowledge, it never afterwards confesses ignorance. While the scientific establishment often admits ignorance in matters for which it never had a reigning paradigm, it will never admit ignorance of any subject about which it has adopted a reigning paradigm. Once science has asserted that it has an answer to a question, it may later announce that it has changed its answer, but it will never admit that it has no answer.

As the sociologist Robert K. Merton said almost fifty years ago, “On every side, the scientist is reminded that it is his role to . . . have made genuinely original contributions to the common stock of knowledge.”6 But in science as conducted today, a mere rebuttal is not considered a contribution to knowledge. There is no role for a mere defense counselor. No scientist sees a career advantage in proclaiming not only that the scientific establishment is ignorant of the truth, but that he is also ignorant.

No wonder reigning scientific paradigms are so rarely abandoned, given that every challenger is required to be a veritable Perry Mason of science. The inevitable result is that flawed theories are left standing that ought to be rejected. This rule of the science establishment does not serve truth. It imposes an unfair burden of proof that, if applied in law, would require every defense lawyer to be as effective as Perry Mason.

And since most defense lawyers aren’t Perry Masons, a lot of innocent people would go to jail, because the juries would be forced to accept as true theories that were in fact false. In science, we, the jury, are told to accept as true the prosecutor’s theories (the reigning paradigms), and no defense counsel is available whose sole duty is to expose their flaws and show that their supposed answers are wrong.

Denigration Without Rules

A third characteristic element of litigation also appears repeatedly in the evolution debates: the ad hominem denigration of the representatives of the other side. Lawyers regularly seize upon every action by the other side’s lawyers that can be used to characterize them as deceitful, incompetent, confused, or having bad motivations, in order to get the judge to discount their credibility.

Anyone who delves into the books, articles, and Internet postings on the evolution debate will see instantly who employs these kinds of tactics and who does not. For example, authors aligned with the scientific establishment almost always label skeptics of unintelligent evolution as “creationists,” in an attempt to box in all doubters with young-earth Christian fundamentalists. These techniques are not the mark of an impartial truth-seeker; they are the mark of a self-interested advocate. I do not see these kinds of ad hominem smear tactics in the writings of the leading ID authors—which is another reason why I have come to trust them more than their opponents in the debate.

But there is one twist to this: Although the debate is conducted in patterns characteristic of litigation, scientists are not bound by the rules that bind litigators. In litigation, party A submits an opening brief, party B submits an opposition brief, A offers a reply, and B submits a surreply. In litigation, these documents are all legal briefs subject to impartial court rules as to length and format. Neither side can impose special restrictions on the other.

In the evolution debate, the process typically starts with a book—the opening brief—critical of unintelligent evolution. The opposition brief takes the form of a book review in a magazine that likely favors unintelligent evolution as a matter of its own editorial policy. If the magazine lets the author defend the book, typically the space it offers him is quite limited. Sometimes it will invite the critical reviewer to reply to the author’s defense, and he is often given more space than the author was given to defend his book.

This serves the magazine’s interests. After all, if the critic comes off poorly in the exchange, or if readers come away thinking that the magazine’s own policy is unsound, the magazine itself looks bad for having chosen an ineffective reviewer and for having advocated a flawed policy.

In this process, those who promote unintelligent evolution often have a better grasp of the forensic opportunities than do the challengers. One common technique they use when they reply to an ID author’s defense is to claim that every comment in the original book review that the author left unanswered is a point he “cannot rebut.” But in reality the ID author’s decision not to defend every point was compelled by the magazine’s refusal to provide sufficient space and by his judgment as to which points would be of most interest to the readers.

Scopes Revisited

Whenever someone seriously challenges the teaching of evolution in the high schools, the scientific establishment and its allies trot out the Scopes “Monkey Trial” of 1925 and attempt to cast the challengers as throwbacks to the Christian fundamentalists portrayed in the movie Inherit the Wind. It is their position that if the scientific establishment has ratified a science textbook, such as the book from which Scopes taught evolution, the state should not engage in “censoring” the material in that book, and that any such attempt is the imposition of a sectarian and anti-scientific point of view that can only harm the students.

The Scopes trial plays such a prominent role in the debate that I decided to purchase copies of the trial transcript, the textbook from which Scopes taught, George Hunter’s A Civic Biology, and the companion lab guide to the textbook.7 Reading them was a real eye-opener.

The Scopes trial never offered any judgment or verdict that unintelligent evolution is true. The prosecution argued and the judge agreed that the Tennessee statute in question barred the teaching of the theory even if it were true, so its truth was not an issue in the case. Nor, notably, was the truth of the theory of unintelligent evolution and the supposed evidence for it even subjected to cross-examination, despite the fact that Scopes’s lawyers presented extensive written statements from seven scientists stating that evolution is the correct explanation for the diversity of life on earth.8 The prosecution sought permission to cross-examine the five pro-Darwinian science experts whose statements were read in open court, but Clarence Darrow and the other defense lawyers objected and the judge refused to allow it.9

Nor, ironically, given the popular understanding of the case as being a disproof of Christian fundamentalism, was fundamentalism legally an issue in the case. The Tennessee statute did not mandate the teaching of fundamentalism or of any other theory that might explain the origin and diversification of life on earth. The statute merely barred the teaching of evolution.

But Darrow and the entire defense team wished to make fundamentalism the issue, and they succeeded. Prosecution lawyer William Jennings Bryan agreed to be questioned by Darrow on his personal interpretation of the Bible—the famous examination shown in a false light in Inherit the Wind—only if Darrow agreed to be questioned on the evidence for evolution—and the judge agreed that Bryan could question Darrow after Darrow questioned Bryan.10 Bryan’s bargain, submitting to examination so that he could examine Darrow, was a last-ditch attempt to place some criticism of unintelligent evolution into the trial record to counteract the one-sided, unchallenged presentation of the pro-evolution side.

But Darrow, after his famous examination of Bryan, unexpectedly changed Scopes’s plea to guilty, which closed the evidence and made it impossible for Bryan to call Darrow to the stand to question him on evolution.11 Darrow could easily have changed the plea before his examination of Bryan; the fact that he changed it only after he conducted his examination indicates that his intention all along was to use Bryan to challenge Christian fundamentalism and then escape any challenge to the theory of evolution. The result was that the scientists presented their case for evolution without any challenge to the merits of their arguments.

Those who invoke the Scopes trial whenever evolution is questioned are using a deceptive rhetorical tactic: attempting to cast today’s questioners of unintelligent evolution back eighty years and paint them as the (alleged) “bigots and ignoramuses” of 1925 whom Darrow denounced as trying to “control the education of the United States.”12

A Eugenic Book

But those who would impute to today’s challengers the attitudes of 1925 should take heed how this technique applies to them. According to Harvard law professor Alan Dershowitz, in his introduction to The Scopes Trial, those who advocated for evolution in 1925 included “racists, militarists, and nationalists” who used evolution “to push some pretty horrible programs.” The programs included the forced sterilization of people they thought “unfit” and “inferior,” “the anti-immigration movement” that wanted to bar immigration of people of “inferior racial stock,” and Jim Crow laws that evolutionists “rationalized on grounds of the racial inferiority of blacks.”

Just as today’s evolutionists have advanced beyond these reprehensible positions and ought not to be treated as if they held those beliefs, so also today’s intelligent design challengers of unintelligent evolution are very different from the fundamentalists of 1925. They do not argue that evolution must be suppressed because it conflicts with the Bible. Instead, they argue that it should be questioned because the scientific evidence offered to support it is weak.

The textbook Scopes used, A Civic Biology, offers another lesson about whether the scientific establishment should receive the great deference it demands. A Civic Biology and its companion lab book both contain sections on eugenics—introduced by the statement, “The science of being well born is called eugenics.”13 The scientific establishment of the time fully supported this “science” of eugenics. This endorsement by the scientific establishment meant that eugenics was taught in our schools.

Indeed, when I was revising this article, the Holocaust Museum in Washington, D.C., had just opened a sobering exhibit on American eugenics and how it helped lead to the Nazi programs of extermination of the Jews and other “defective” persons. The Scopes trial textbook is squarely in that murderous tradition.

Here is what the scientific establishment of Scopes’s time caused American schoolchildren to learn. A Civic Biology divided humanity into five races and ranked them in terms of superiority, concluding with “the highest type of all, the Caucasians, represented by the civilized white inhabitants of Europe and America.” It claimed that crime and immorality are inherited and run in families, and that

these families have become parasitic on society. . . . If such people were lower animals, we would probably kill them off to prevent them from spreading. . . . [W]e do have the remedy of separating the sexes in asylums or other places and in various ways preventing intermarriage and the possibilities of perpetuating such a low and degenerate race.

That is what the science establishment taught high-school students in 1925.

A Civic Biology presents studies of two families. The Jukes are said to descend from “Margaret, the mother of criminals,” and over a period of 75 years to have cost New York “the care [in] prisons and asylums of considerably over a hundred feeble-minded, alcoholic, immoral, or criminal persons.” The Kallikaks are said to descend from one Martin Kallikak and “a feeble-minded girl” whose 480 descendants include “33 sexually immoral, 24 confirmed drunkards, 3 epileptics, and 143 feeble-minded. The man who started this terrible line of immorality and feeble-mindedness later married a normal Quaker girl. From this couple a line of 496 descendants have come, with no cases of feeble-mindedness. The evidence and the moral speak for themselves!”

The lab book asks students to use inheritance charts “to determine some means of bettering, physically and mentally, the human race,” and a “Note to teachers” says that “the child is at the receptive age and is emotionally open to the serious lessons here involved.”14 Ironically, for purposes of this essay, the lab book contains nothing on evolution. Apparently Hunter and his publishers felt it was more important for the “receptive” young students of 1925 to learn eugenics than to learn evolution.

Of course, the scientific establishment of today would denounce all of this. Thus, the very textbook from which Scopes taught—the very book that the scientific establishment of today proclaims Scopes ought to have been able to use in 1925 without any interference by the state—includes material that today the scientific establishment strongly rejects.

Must We Wait?

So the real question is: Must the rest of the world wait for science to catch up before deciding to reject theories with manifold and increasingly obvious flaws, only because no scientist has yet developed an alternative theory that the science establishment will accept?

If in 1925 the State of Tennessee had adopted a law barring the teaching of eugenics, despite the scientific establishment’s support for it at that time, would anyone today condemn the state for that law? If the state had adopted a law that permitted the teaching of eugenics as the scientific establishment demanded, but required that the flaws in that theory also be taught, would not everyone today applaud its foresight in enacting such a law?

It will not do to say the weaknesses in the various theories of unintelligent evolution must be kept hidden to avoid confusing students. There is nothing confusing about stating that the theory of unintelligent evolution, which depends entirely on the supposed occurrence in history of trillions of DNA mutations that beneficially affect body shape, has not identified any such mutations, let alone a sufficient number of them to make it reasonable to infer that all of the trillions of necessary mutations occurred through unintelligent processes.

The population at large—who are free from the institutional incentives and biases of the scientific establishment—are entirely within their rights to doubt and indeed to abandon a theory before the scientific establishment itself does. The principle practiced by the scientific establishment—that ignorance is never admitted once a paradigm has been adopted—is an effect of the self-interest of scientists and the scientific community, not a principle for determining the truth.


1. Darwin’s Dangerous Idea: Evolution and the Meanings of Life (Touchstone Books, 1995), pp. 63, 82, 144–145, 521.

2. Social Studies of Science (Transaction Publishers, 1990), pp. 80, 97–113. Barber was writing on his “Resistance by Scientists to Scientific Discovery,” which first appeared in the Sept. 1, 1961 issue of Science.

3. Mathematics of Evolution (Acorn Enterprises, 1999), pp. 104, 106.

4. “The Validation of Continental Drift,” reprinted in his Ever Since Darwin: Reflections in Natural History (Norton, 1979), p. 160.

5. The Structure of Scientific Revolutions, 3rd ed. (Univ. of Chicago Press, 1996), pp. 150–153, 157–159.

6. “Priorities in Scientific Discovery,” reprinted in The Sociology of Science (1978 reprint by Greenwood Press of a book published by The Free Press div. of Macmillan Co., 1962), p. 454.

7. The Scopes Trial (Gryphon Editions Notable Trials Library, 1990, facsimile reprint of The World’s Most Famous Court Trial [National Book Co., 1925]), hereinafter The Scopes Trial; George Hunter, A Civic Biology (American Book Co., 1914); George Hunter, Laboratory Problems in Civic Biology (American Book Co., 1916).

8. The Scopes Trial, pp. 229–280.

9. Ibid., pp. 206, 220–221, 223.

10. Ibid., pp. 284, 288.

11. Ibid., pp. 306–307.

12. Ibid., p. 299.

13. Civic Biology, pp. 261–264; Laboratory Problems, pp. 182–184.

14. Laboratory Problems, p. 182.

Edward Sisson is a partner at a large Washington-based international law firm, specializing in litigation arising out of multi-million-dollar corporate acquisitions. He also maintains an extensive pro bono practice in the areas of international democracy, human rights, and the arts. His law degree is from Georgetown University and his bachelor (of science) from the Massachusetts Institute of Technology. ?Darwin or Lose? is a shortened and revised version of his ?Teaching the Flaws in Neo-Darwinism,? which appeared in Uncommon Dissent: Intellectuals Who Find Darwinism Unconvincing, edited by William Dembski (ISI Books, 2004).

“Darwin or Lose” first appeared in the July/August 2004 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue.

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