(For previous posts in this series, see here.)

The 1925 Scopes trial in Dayton, Tennessee was brief, lasting just eight days, much of it involving legal wrangling over technicalities that took place with the jury out of the courtroom. There were only two occasions when Bryan and Darrow were able to make speeches and these occurred in the middle of the trial during legal skirmishes.

The legal backdrop to the Scopes case did not involve the US constitution. Recall that the First Amendment to the constitution (ratified as part of the Bill of Rights on December 15, 1791) says simply: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It is important to realize that originally the First Amendment was considered to apply only to laws passed by the federal government, since the wording explicitly only barred Congress from passing any law that infringed on those rights.

It was the Fourteenth Amendment dealing with civil rights (adopted on July 9, 1868 following the end of the Civil War) that started the expansion of the scope of the Bill of Rights. This amendment said, among other things, that “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 use of the more expansive word State instead of Congress in the ‘equal protection’ clause resulted in subsequent US Supreme Court cases expanding the reach of the ‘due process’ and ‘equal protection’ and ‘life, liberty, or property’ clauses of the Fourteenth Amendment so that the Bill of Rights protections could not be encroached by state and local governments and any body acting as an agent of the government.

The first expansive reading of this sort occurred in a Supreme Court ruling that occurred on June 8, 1925, when in Gitlow v. People 268 U.S. 652 (1925), the Supreme Court asserted that the freedom of speech and the press in the First Amendment were two of the liberties protected from infringement by state and local governments under the Fourteenth Amendment. The court said in its opinion:

For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

Eventually, by a series of these kinds of expansions, all the First Amendment protections were construed as binding on state and local governments as well. But that was some way down the road, occurring long after the Scopes trial. The Gitlow verdict, delivered just a month before the Scopes trial, probably came too late to be part of the strategy of the defense team in the Scopes case, who chose to argue in favor of free speech under the Tennessee state constitution.

The Scopes trial has cast such a long shadow and has reverberated so much in public consciousness, that it is worthwhile to have a quick summary of events of that trial, in order to separate the facts from the folklore that has arisen around it. (For comprehensive review of the case, see Summer for the Gods, Edward J. Larson, (1997). For a brief description of the trial and excerpts from the trial transcript, see here. To get a flavor of the atmosphere during the trial, read excerpts from reporter H. L. Mencken’s account. A timeline of the trial can be seen here.)

Day 1, Friday, July 10: The morning saw the grand jury and witnesses appear to issue a new indictment, since the older one had a technical flaw. Scopes had to tell a reluctant student that he would be doing him a favor by testifying against him and was duly indicted again. After lunch, jury selection took place.

Day 2, Monday, July 13: The defense made a motion to quash the indictment on the grounds that it violated, among other things, the Tennessee state constitution on individual freedom of speech and religion. The defense expected this to be overruled but needed to go through the motions in order to use these grounds to appeal to the higher courts later. The defense argued that the theory of evolution was as well established as the Copernican theory and thus forbidding teaching it was an unreasonable action by the state. The prosecution countered that the state had the right to prohibit the teaching of any subject at all. (Larson, p. 158-60).

Then Clarence Darrow rose to give the rebuttal and gave what some say was the best speech of his long career. He pointed out that Tennessee had been teaching about evolution for years with no problem until people like Bryan came along and tried to use the Bible to determine what should or should not be taught. He said the new law made “the Bible the yard stick to measure every man’s intellect, to measure every man’s intelligence, and to measure every man’s learning. . . .The state of Tennessee under an honest and fair interpretation of the constitution has no more right to teach the Bible as the divine book than that the Koran is one, or the book of Mormon, or the book of Confucius, or the Buddha, or the Essays of Emerson. . .There is nothing else, your Honor, that has caused the difference of opinion, of bitterness, or hatred, of war, of cruelty, that religion has caused.” His statement provided a rousing finish to the day.

Day 3, Tuesday, July 14: This saw some legal wrangling over the propriety of having opening prayers at such a trial and an investigation by the judge over the source of some leaks of his anticipated ruling on whether to quash the indictment and dismiss the charges.

Day 4, Wednesday, July 15: The judge, as expected, rejected the motion to quash the indictment and the trial proper got under way. The prosecution’s opening statement consisted of just two sentences, merely saying that they would show that Scopes had violated the law by teaching that “mankind is descended from lower animals” and that therefore “he has taught a theory which denies the divine creation of man as taught in the Bible.” The defense said in its opening statement that “We will show by the testimony of men learned in science and theology that there are millions of people who believe in evolution and in the story of creation as set forth in the Bible and who find no conflict between the two. The defense maintains that this is a matter of faith and interpretation, which each individual must make for himself.” (Larson, p. 171)

Only four witnesses were called for the prosecution. The school superintendent testified that the official school textbook did refer to evolution and that Scopes had admitted to teaching it. Two students testified that Scopes had taught them evolution, and the chair of the local school board (in whose drugstore the whole plan for this trial had been hatched) testified that Scopes had admitted to him to teaching evolution. The prosecution completed its case in less than an hour.

The defense began by calling a religious zoologist Maynard Metcalf to provide by some expert testimony on evolution. Metcalfe distinguished between the fact of evolution having occurred, which he said was accepted by scientists, and the theory behind it, about which he said there were still unanswered questions.

Day 5, Thursday, July 16: The day began with a debate about whether further expert testimony on evolution should be allowed. Bryan gave a rousing two-hour speech, the only one he made at the trial, although he gave many speeches outside the courtroom during that period. In his speech, he recapitulated many of the points he had made in his New York Times essay, described earlier.

This was responded to by an equally rousing speech from another member of the defense team Dudley Fields Malone who said that the defense wanted a chance to prove the truth of evolution and the benefits of science. “We feel we stand with science. We feel we stand with intelligence. We feel we stand with fundamental freedom in America. We are not afraid.” (Larson, p. 179)

Chief prosecutor Tom Stewart ended the day with another speech in which he said that evolution “strikes at the very vitals of civilization and Christianity and is not entitled to a chance.” (Larson, p. 180) He also said “They say it is a battle between religion and science. If it is, I want to serve now, in the name of the great God, that I am on the side of religion. . .because I want to know beyond this world that there might be an eternal happiness for me and others.” (Larson, p. 180)

Day 6, Friday, July 17: The judge ruled on the issue of allowing further expert testimony by saying that “defense could present written affidavits or read prepared statements into the record. . .but the prosecution could cross-examine any witness put on the stand.” (Larson, p. 181) This requirement posed a problem for the defense. Although they wanted to present expert testimony on the stand, they did not want the scientists to be cross-examined because they feared that it would reveal that although the scientists were religious people, they did not believe in the literal truth of the virgin birth and other miracles. As another defense attorney Arthur Garfield Hays said, “It was felt by us that if the cause of free education was ever to be won, it would need the support of millions of intelligent churchgoing people who didn’t question theological miracles” and that kind of testimony risked losing that support. (Larson, p. 181) So they agreed to provide written affidavits to be entered into the record for the purposes of appellate review.

Over the weekend, eight scientists prepared written testimony that essentially said that “evolution is a fact, and that a well rounded education cannot do well without it.” (Larson, p. 184) Some sought to reconcile evolution with creation, as did four religion experts. (Larson, p. 186) But while that preparation was going on, Darrow was planning the surprise that would forever after grab the imagination of the public and define the trial.

Next: Williams Jennings Bryan takes the stand.