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When Enduring Value Turns To Dogma

When Enduring Value Turns To Dogma

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Published by WayneLawReview
Kevin W. Saunders, When Enduring Value Turns To Dogma 58 Wayne L. Rev. 1149
Kevin W. Saunders, When Enduring Value Turns To Dogma 58 Wayne L. Rev. 1149

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1149
WHEN ENDURING VALUE TURNS TO DOGMA
K
EVIN
W.
 
S
AUNDERS
 
Table of Contents
I. G
ALILEO AND THE
C
ATHOLIC
C
HURCH
 ........................................ 1150II.
 B
 ROWN 
 AND THE
R
EJECTION OF
P
SYCHOLOGICAL AND
B
RAIN
S
CIENCE
 ........................................................................................ 1156III. C
ONCLUSION
 ................................................................................. 1164 Professor Sedler concludes his reprise on
The Law of the First  Amendment 
 with the conclusion that the current structure of the law is the same as it was at the time of his original 1991 article.
1
 He notes at the outset that, if anything, with regard to the protection of expression, “the Court has increased the protection afforded to First Amendment rights and has resisted attempts to diminish that protection.”
2
 He further  justifies this even stronger protection as part of American humanistic values.
3
 These values in the United States protect “bad ideas” and “harmful speech” and indicate a belief that the government should not make decisions about which ideas should be expressed.
4
 He applauds this treatment of expression, an applause in which, for the most part, I would  join. Consistency is a positive when it comes to values. Values should be enduring. A belief in free expression, or any other constitutional value, would lose importance if it waxed and waned with the tenor of the times. A continuing belief in free expression is, indeed, one of our humanistic values. Factual conclusions should, however, not have such endurance in the face of contrary evidence. A continued adherence to a factual belief when the evidence demonstrates its falsity represents a foolish intransigence, rather than adherence to values. The denial cannot stand
† Charles Clarke Chair in Constitutional Law, Michigan State University. A.B., 1968, Franklin & Marshall College; M.S., 1970, University of Miami; M.A., 1976, University of Miami; Ph.D., 1978, University of Miami; J.D., 1984,
magna cum laude
, University of Michigan. 1. Robert Sedler,
The First Amendment in Litigation: The "Law of the First  Amendment 
, 48 W
ASH
.
 
&
 
L
EE
L.
 
R
EV
.
 
457
 
(1991). 2. Robert Sedler,
The “Law of the First Amendment” Revisited 
, 58 W
AYNE
L.
 
R
EV
.
 
1003,
 
1009
 
(2013). 3
. Id.
 at 1085. 4
. Id.
 at 1085-86.
 
1150 THE WAYNE LAW REVIEW [Vol. 58:1149 up over the long, sometimes very long, run. It leads to incorrect conclusions when mixed with values and ends up making the adherent look foolish.
5
 Two examples of this phenomenon will be presented here. The first is the Catholic Church’s rejection of the heliocentric universe and its treatment of Galileo. The second is the Supreme Court’s decision in
 Brown v. Entertainment Merchants Association
.
6
 The two might seem very different in that the rejection of the Copernican system was purely a rejection of scientific fact, while the
 Brown
 video game decision was the preservation of values that all or most would applaud, but the two are similar. It has long been a feature of constitutional rights that they are not absolute.
7
 A right can be infringed if the government has a compelling interest for which the infringement is necessary or narrowly tailored.
8
 Whether there is such an interest and whether there is necessity attached to that interest are not matters of enduring values. Those questions are contingent and depend on, perhaps among other things, the state of science at the time of the infringement. I.
 
G
ALILEO AND THE
C
ATHOLIC
C
HURCH
 In the early seventeenth century, a commission of the Holy Office of the Catholic Church called into question the advocacy by Galileo Galilei of the Copernican theory of the solar system.
9
 The Church had a set of enduring values, including one that placed man at the center of God’s creative efforts. If man were to be at the center of God’s attention, presumably the home of man, Earth, would have to be at the center of the universe.
10
 Furthermore, there was Scripture that spoke in favor of an Earth-centered, or geocentric, universe. Joshua did not command that the Earth stand still: He commanded the sun to stand still, and that could be exceptional only if it was the sun, rather than the Earth, that normally
5. There is another way in which enduring values may lead to controversial results. Values may expand to be applied in areas where they may not belong and where they may never have been intended.
See generally
 K
EVIN
W.
 
S
AUNDERS
,
 
S
AVING
O
UR
C
HILDREN FROM THE
F
IRST
A
MENDMENT
 (2003); Kevin W. Saunders,
The Framers, Children and Free Expression
, 25 N
OTRE
D
AME
J.L.
 
E
THICS
&
 
P
UB
.
 
P
OL
Y
 189-91 (2011).
See also infra
 note 114 and accompanying text. 6. 131 S. Ct. 2729 (2011). 7
. See, e.g.
,
 
Chaplinski v. New Hampshire, 315 U.S. 568, 571 (1942) (“[I]t is well understood that the right of free speech is not absolute at all times . . . .”). 8
. Brown
,
 
131 S. Ct. at 2738. 9. The history of the strife between Galileo and the Catholic Church is recounted in many places. References here will be primarily to J
EROME
J.
 
L
ANGFORD
,
 
G
ALILEO
,
 
S
CIENCE
,
 AND THE
C
HURCH
 (3d ed. 1992). 10
. See id 
. at 53.
 
2013]
WHEN ENDURING VALUE TURNS TO DOGMA
 1151
 
moved.
11
 In the Psalms, God is said to have made the Earth firm and not moveable.
12
 There are also places in the Bible that talk of the sun rising, running its course, and setting,
13
 all indications of the movement of the sun and the fixed place of the Earth. Under Aristotle’s, and later Ptolemy’s, models of the universe, the Earth occupied its proper place from a religious perspective.
14
 Indeed, the models worked rather well for ordinary, everyday purposes. For most of us, the sun, moon, and stars do seem to revolve around the Earth and us. Aristotle explained this apparent motion through the use of spheres on which the moon, sun, planets, and stars reside, revolving around the Earth.
15
 This system had a problem with the retrograde motion of planets, the apparent movement of the planets in one direction, followed by a reverse in course, and then again followed by motion in the original direction.
16
 The problems were not seen as making the theory irredeemable.
17
 They just required more spheres, with Aristotle employing fifty-five, including four connected spheres for Mars alone.
18
 It was the interconnected motion of these spheres that made the planets seem to change direction.
19
 Ptolemy made some changes to the system of Aristotle, and it is his improved system that served as the accepted model at the time of Galileo’s prosecution.
20
 Ptolemy replaced the spheres employed by Aristotle with circles.
21
 His explanation of retrograde motion involved placing the planets on much smaller circles, epicycles, revolving around points on the larger circle of planetary orbit.
22
 This was an improvement over Aristotle and justifies attaching his name to the model. It explained the changes in the speed of motion of the planets, as well as change in
11. This also led Martin Luther to reject a sun-centered universe.
See id 
. at 35. 12
. See id 
. at 52-53. 13
. See id 
. at 53. 14. There are, again, any number of sources for material on these and the later Copernican models, but for simplicity, the citations here will be to short but more than adequate explanations put forth in L
ANGFORD
,
 
supra
 note 9. 15. L
ANGFORD
,
 
supra
 note 9, at 23-29 (explaining Aristotle’s system). Aristotle was not the first to suggest these spheres but was preceded by Eudoxus and Callippus.
See id 
. at 27. 16
. Id.
17
. Id 
. 18
. See id 
. at 27. 19. Note that in an Earth-centered universe, it was not just an appearance of a change in direction but an actual change. 20. L
ANGFORD
,
 
supra
 note 9, at 27. 21.
 Id 
. at 29-32 (explaining Ptolemy’s system). 22
. See id 
. at 30.

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