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State v. Scopes:
I recently finished reading Summer for the Gods, a history of the famous Scopes "monkey" trial by Prof. Edward Larson that won the Pulitzer Prize for history in 1997 (and was recently recommended by Glenn Reynolds).

  Although it's a bit dry at times, on the whole the book was fascinating: it turns out that the history of the Scopes trial is very different from the myths. As a law professor, I was particularly interested in understanding the legal side of the case. I wondered how the judicial system ended up being a forum for debating such non-legal questions as whether evolution is consistent with the Bible. The answer turns out to be pretty interesting.

  While Larson doesn't focus on the legal side of the case in particular, here is the picture I was able to put together:

  1. In 1925, Tennessee passed a state law that made it a misdemeanor punishable by a fine of up to $500 "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man had transcended from a lower order of animal." No one expected any one to be prosecuted under this law; it was designed to be symbolic. But the nascent ACLU decided to try to challenge the law to establish the right of schools and teachers to control the school curriculum. The challenge wasn't supposed to be about religion or evolution; the issue was academic freedom.

  2. The ACLU placed advertisements in local Tennessee papers looking for someone who would challenge the law. Local citizens of Dayton, Tennessee saw the advertisment, and realized that a prosecution under the law in Dayton would help the local economy by making people come to Dayton for the trial. A local prosecutor agreed to bring a prosecution if they would find a local teacher who would go along. John Scopes agreed to be the defendant for the test case. Scopes wasn't actually a biology teacher, but he had taught a biology class as a substitute teacher, and had used a state-assigned textbook that taught evolution. The "prosecution" was designed to be a friendly affair. The ACLU would get its test case to bring before the appellate courts, and Dayton's economy would benefit from all the attention brought by the trial. Scopes would face a fine in theory, but it was understood that he wouldn't actually have to pay it.

  3. The announcement that a teacher was being prosecuted for teaching evolution drew a tremendous amount of press attention, and the attention of both former Presential candidate and popular speaker William Jennings Bryan and famed defense attorney Clarence Darrow. Darrow's involvement was not exactly welcome; he was an atheist, and saw the Scopes case as an opportunity to challenge religious fundamentalism in court. He ended up wrestling control of the case from the ACLU. Whereas the ACLU wanted the case to be about academic freedom, and primarily an issue for appeal, Darrow wanted to "put religion on trial."

  4. The defense strategy in the Scopes case was two-fold. First, the defense had a statutory claim designed to permit the defense to put on expert witnesses about religion and evolution. The statute was terribly written, and as written it wasn't clear if it banned the teaching of evolution or teaching that conflicted directly with the Bible. The government argued that the law only banned teaching evolution, and thus that Scopes had clearly violated it. The defense argued that the law prohibited teaching that conflicted with the Bible, which would have let the defense put on lots of expert witnesses to testify about modern scientific theories of evolution and whether they were consistent or inconsistent with the Bible. The constitutional case was largely based on state constitutional law; this was before most of the Bill of Rights had been incorporated and applied to the states. The federal constitutional case was based on several Lochner-esque Due Process arguments, including that controlling state educational curricula exceeded the police power.

  5. The trial judge ruled that as a matter of statutory interpretation, the government was right that the statute merely prohibited the teaching of evolution. No experts were needed, and Scopes was obviously guilty. Darrow argued to the trial judge that he needed to build an appellate record anyway, in case the Tennessee Supreme Court disagreed with the trial judge's interpretation of the statute. The trial judge went along, at least at first, and allowed Darrow to offer both affidavits and live testimony (without the jury present) on the question of whether evolution was inconsistent with the bible.

  6. The confrontation between Darrow and Bryan was Darrow's idea. Darrow was permitted to put on live witnesses who were experts in the Bible, and Darrow came up with the clever idea of calling William Jennings Bryan as a Bible expert. It was basically a stunt, as Bryan was acting as one of the prosecutors and could have simply declined. But Darrow accurately predicted that Bryan would be too proud to turn down the opportunity to testify as a Bible exoert. Darrow then proceeded to grill Bryan about the meaning of the Bible for two hours. Following Bryan's testimony, the trial judge changed his mind and decided that all of the evidence offered by Darrow for the appellate record was irrelevant. He had all of that evidence (including Bryan's testimony) stricken from the record.

  7. To make sure that Bryan wouldn't get the last word, Darrow waived his closing argument. Darrow basically agreed to the court that Scopes was guilty. The jury took 9 minutes to return a verdict of guilty; most of that time was time leaving and returning to the court room.

  8. The lead lawyer at that point for Scopes, a former law professor named Neal, missed the filing deadline needed to challenge trial errors. This included the judge's evidentiary ruling that no expert witnesses were needed, which had been based on the construction of the statute. This meant that the ACLU could only challenge the constitutionality of the statute, not the evidentiary rulings. Scopes appealed to the Tennessee Supreme Court, but the Court ruled that the failure to file a Bill of Exceptions to the trial in 30 days waived any appeal on those issues. See Scopes v. State, 152 Tenn. 424, 278 S.W. 57 (Tenn. 1925).

  9. When the challenge to the constitutionality of the statute was filed, the Tennessee Supreme Court upheld the statute but vacated the conviction in a divided opinion. See Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (Tenn. 1927). The conviction was vacated on a somewhat forced technicality; the jury was supposed to set the amount of the fine, but had forgotten to do so, and the judge had simply picked an amount with the consent of the parties. The Tennessee Supreme Court ruled that this was improper, such that the conviction was invalid, and strongly hinted that the government should not bring the prosecution again. Here is the end of the Court's opinion:
  Since a jury alone can impose the penalty this act requires, and as a matter of course no different penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine, and we are without power to correct his error. The judgment must accordingly be reversed. Upchurch v. State, 153 Tenn. 198, 281 S. W. 462.
  The court is informed that the plaintiff in error is no longer in the service of the state. We see nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the state, which all criminal prosecutions are brought to redress, will be the better conserved by the entry of a nolle prosequi herein. Such a course is suggested to the Attorney General.
  This resolution was pretty sketchy, but it served a purpose. The Tennessee Supreme Court upheld the popular statute, Scopes was off the hook, and the ACLU did not have anything to appeal to the United States Supreme Court. The government took the Court's advice and did not recharge Scopes. The legal case ended as a draw.

  Anyway, that's my understanding of the case from Larson's book. If any readers have a different understanding, I hope you'll consider leaving a comment in the comment section.
Micah McOwen (mail):
No, you've nailed it pretty well. It was a great book; I read it over the winter. The only thing I would add is the actual percentage of testimony the jury heard. You mentioned it in passing, and I can't recall what the exact amount was, but I thought the jury actually only heard a tiny fraction of the total "evidence" presented: something on the order of minutes, which is interesting considering the days and days and days of trial.

I thought the best part of the book was the constant references to how incredibly hot it was during the trial, with people passing out from heat exhaustion left and right.
7.26.2005 7:07pm
Steve:
Very interesting!! Of course, now I feel like I don't have to buy the book.
7.26.2005 7:08pm
42USC1983 (mail):
Have you ever seen the Famous Trials website? If not, you'll enjoy their coverage of the .
7.26.2005 7:10pm
42USC1983 (mail):
Broken html. Try again.
7.26.2005 7:11pm
Hattio (mail):
My only quibble is with the statement in Paragraph number 5 that Darrow was obviously guilty. I assume you meant Scopes. I haven't read the book though....
7.26.2005 7:29pm
OrinKerr:
Thanks, Hattio. Correction made.
7.26.2005 7:34pm
Chris Brody:
Thanks, Orin. Quite interesting!
7.26.2005 8:16pm
Dub (mail):
I would be curious to see the ad that was placed in the papers...the one that asked for someone willing to break the law. If anyone can come up with this, I would be interested.
7.26.2005 8:27pm
3L:
I know you're focusing on the legal issues of the case, but I was very surprised to learn that the actual textbook in question was blatantly racist, explicitly stating that the white race had evolved further than the black race. Supposedly Bryan was primarily concerned with the social Darwinism taught in the book, which he feared would lead to something similar to Nazi Germany (where he had just visited).

I haven't read Summer for the Gods, so any info on this line would be appreciated.
7.26.2005 10:35pm
Syd Henderson (mail):
He couldn't have visited Nazi Germany. That didn't exist until 1933.
7.26.2005 10:51pm
John Jenkins (mail):
The Nazi party was 25,000 or so strong in 1925 and Mein Kampf was published that year as well. While it wasn't Nazi Germany as we know it yet, those sorts of ideas were percolating around already. Bryan might have been so concerned, or might not, but grounds for concern were present.
7.26.2005 11:00pm
Carl Pham (mail):
Supposedly Bryan was primarily concerned with the social Darwinism...

That's very plausible. He was one of the last great Midwestern populists, and forcefully represented the remains of Jacksonian agrarian egalitarianism in its epic Industrial Revolution confrontation with snarky Eastern urban elitism.
7.26.2005 11:11pm
Kim Scarborough (mail) (www):
3L makes a good point: Bryan is largely thought of today as a raving right-wing fundie, largely due to his portrayal in Inherit the Wind. He was actually what we would now call a political liberal; he served in the Wilson administration, was an early proponent of women's voting, and favored a progressive income tax. His objections to evolution were not just religious; at the time, popular evolutionary theory was deeply wedded to social Darwinism and eugenetics, and Bryan, like many liberals, was deeply disturbed by the racist and dog-eat-dog implications.

See also Gregg Easterbrook's excellent article for Beliefnet (that's Frank Easterbrook's brother, for you law nerds).
7.26.2005 11:18pm
lee piazza (mail):
If William Jennings Bryan visited Nazi Germany he did it in a time machine. He died in 1925.
7.26.2005 11:24pm
Mark Post (mail):
You wouldn't need to visit Nazi Germany to be exposed to eugenics as social policy. The ideas were quite widespread in the US prior to WWII. A good book on this subject is "War against the Weak" by Edwin Black. Between 1900 and 1945, tens of thousands of Americans were forceably sterilized for reasons ranging from insanity to poverty, to chronic alcoholism, to just generally being "unfit" for procreation. The war, and uncovering of the Nazi "experiment" more or less ended that chapter of American history.

Now, it's possible that Bryan was purely motivated by his opposition to such discrimination. As a born cynic, I have to be skeptical of any explanation that so conveniently rehabilitates someone, particularly when it's a rehabilitation perfectly tailored to the morals of modern American society. Perhaps Bryan just felt that teachers should shut their mouths and obey the law-- stop trying to promote the ridiculous notion that human beings were descended from animals and not created by God. Given his faith, and that this was a mainstream position at the time, it's not much of a stretch to assume that the simple explanation a significant component of his motivation. However, I'd be willing to listen if anyone has evidence for the other explanation.
7.26.2005 11:49pm
Michael:
So far as the Bryan-was-anti-Nazi meme is concerned, William Jennings Bryan was one of the most famous and ardent supporters of the Ku Klux Klan towards the end of his life (when the Scopes trial took place).
7.27.2005 12:10am
Penta:
Michael: So were lots and lots of people, at the time.
7.27.2005 1:12am
Stephen C. Carlson (www):
Regarding eugenics in the 1920s, this quip should be memorable: "Three generations of imbeciles are enough." Buck v. Bell, 274 U.S. 200, 207 (1927) (Holmes, J.).
7.27.2005 1:13am
rbj:
What I find troubling is: "No one expected any one to be prosecuted under this law; it was designed to be symbolic."
Not Orin's assesment of what people thought about the statute, but rather that a legislative body would enact a criminal law, with a real fine ($500 being a lot of money in those days), and then not expect anyone to enforce it. It's an abuse of the legislative process and merely promotes disrespect for The Law.
7.27.2005 9:41am
3L:
Yes, I wasn't accurate. Thanks for the corrections regarding Nazi Germany. What I should have said was that Bryan had been to post-WWI Germany and seen the beginnings of the rise of Nazism. I believe Garry Wills talks about this in "Under God: Religion and American Politics." Bryan heard Nazis promote eugenics in the context of evolution, and this converted him into a radical anti-evolutionist.
7.27.2005 1:28pm
Catrina Dirk (mail):
Interesting that I currently have the book checked out from the library (after hearing about it from NPR) but due to Harry Potter and Jared Diamond's "Collaspe" I haven't gotten to reading it yet.

Its very interesting how certain events get so burnished into collective memory (this guy is the "good" guy, this was his motivation...this person was the "bad" guy, this was his motivation) to see it sort of turned around. Interesting how arrogant Darrow comes off and basically not-helpful to the original purpose. I've heard the revisionism of Bryant...that he was against the statue because he didn't believe in Social Darwinism. But interesting point about the textbook! I've never heard any "real" account of what Scopes actually did or said to really "teach." Was it just a one day course? (maybe if I got to reading the book I would know).

How much of our history is just events polished to a nice sheen?
7.27.2005 1:47pm
PLM (mail):
The Dayton courthouse still stands and one can visit the courtroom where the trial took place. In the basement is a fascinating museum about the Scopes trial with lots of pictures from the event. It doesn't go into the detail that is probably contained in the book but it does set out the basic facts quite nicely, including the genesis of the case, including the ACLU "search" for a venue, Scopes' "agreement" to be the defendant, and the ultimate fate on appeal. If I recall correctly the ACLU wanted the case in Chatanooga, more convenient for its lawyers, but couldn't get the local d.a. to prosecute, and that is when Dayton officials volunteered to take the case on.
7.27.2005 1:48pm
Greg D (mail):
What I read was that Bryan was opposed to the Social Darwinism displayed by the German General Staff before WWI, not WWII
7.28.2005 3:37pm
Crank (mail) (www):
Fascinating. First of all, we should be reminded that the idea of a trial turning into a money-making media circus is not a new one; sounds like the good folks of Dayton knew their market.

Second, I wonder if William Jennings Bryan, three-time Democratic nominee for president and Secretary of State in the only two-term Democratic administration between Andrew Jackson and FDR, would be welcome in today's Democratic party. He certainly wouldn't be a Republican today any more than he was in 1896, given his pacifism and economic liberalism. But the party that was his home would probably drive him away over his religious beliefs.
7.28.2005 4:46pm