CHAPTER EIGHT

THE END OF AN ERA

THE SCOPES TRIAL did not end the antievolution crusade. How could it? Scopes had lost and the law was upheld. Darrow embarrassed Bryan on the witness stand, but the Commoner was an experienced politician accustomed to rallying from defeat. More critically, he was an innate optimist. “If Bryan left the Scopes trial ‘an exhausted and broken man,’ as one writer has recently maintained,” Bryan biographer Lawrence W. Levine observed, “he did a masterly job of concealing it during the five days of life remaining to him.”¹

Bryan took the offense immediately after the trial ended. Only hours after court adjourned, Bryan released a series of curt questions to defense attorneys about their beliefs in God, biblical truth, Christ, miracles, and life after death. Darrow replied within the hour by tersely affirming his agnosticism on every point, concluding with his succinct answer as to the question of immortality: “I have been searching for proof of this all my life, with the same desire to find it that is incident to every living thing, and I have never found any evidence on the subject.”²

The following day, Bryan launched his effort to cast events at Dayton in a favorable light. “The issue is so large that individuals and locations are relatively unimportant,” he asserted in a press statement. “Is the Bible true is the question raised by the Tennessee law, and that question is answered in the affirmative as far as this trial can answer it.” He identified Darrow’s contemptuous behavior in court as “exhibit A” in the moral case against life without faith in God. Darrow replied in kind. “Mr. Bryan’s convulsions seem due to the fact that I placed him upon the witness stand,” he told reporters later in the day. “Of course, I cannot help having some pity for Mr. Bryan for being obligated to show his ignorance by simple and competent questions asked him on the witness stand.”³ By nightfall, Bryan was defending his intelligence before assembled journalists and claiming that Darrow unfairly took advantage of his lack of technical knowledge in science. In an apparent attempt to contrast his simple answers with Darrow’s crafty questions, Bryan declared, “Evolution overestimates the influence of the mind on life and underestimates the influence of the heart.”⁴

During the next two days, Bryan remained in Dayton revising his unused closing argument into a fiery stump speech. This 15,000-word address leveled four specific “indictments” against the theory of evolution. First, the theory contradicted the biblical account of creation. Second, its survival-of-the-fittest explanation for human development destroyed both faith in God, as exemplified by Darwin’s agnosticism, and love of others, as shown by Nietzsche’s philosophy. Third, the study of evolution diverted attention from spiritually and socially useful pursuits. Finally, its deterministic view of life undermined efforts to reform society. “Let us, then, hear the conclusion of the whole matter. Science is a magnificent material force, but it is not a teacher of morals. It can perfect machinery, but it adds no moral restraints to protect society from the misuse of the machine,” Bryan wrote near the end. “It not only fails to supply the spiritual element needed but some of its unproved hypotheses rob [society of its moral] compass” and thus “endangers” humanity.⁵

Bryan planned to deliver this speech to audiences across the country during the coming months, counting on residual interest in the Scopes trial to draw crowds. On Friday, July 24, Bryan drove to Chattanooga, where he arranged with the Chattanooga News editor George Fort Milton to publish the address. Milton bitterly opposed the antievolution law, but as a lifelong Bryan Democrat he denounced Darrow’s interrogation of his Peerless Leader as “a thing of immense cruelty” and predicted that a popular backlash against it could further entrench the statute.⁶ On Saturday, Bryan drove from Chattanooga to Tom Stewart’s home town of Winchester, where he fulfilled a promise to the prosecutor by delivering the new address. He stopped en route in tiny Jasper, where more than 2,000 people turned out to hear him rehearse a portion of the speech in an open-air forum. An even larger audience assembled in Winchester for the full oration. The historian Ray Ginger attributed this feverish activity to “desperation,” but failed to note that Bryan customarily campaigned at an even more rapid pace. “If I should die tomorrow,” he reportedly told a journalist in Winchester, “I believe that on the basis of the accomplishments of the last few weeks I could truthfully say, well done.”⁷ The Scopes trial clearly upset Bryan, but it hardly drove him to despair. Returning to Chattanooga for a night’s work on galley proofs of the address, he talked of an expanded crusade against the teaching of evolution.

These plans worried Bryan’s wife. “Mother was greatly opposed to father’s activities in assisting the passage of the anti-evolution laws in several States,” their daughter Grace later confided in a private letter. “Mother did all she could to prevent father from taking part in the Scopes trial.”⁸ Now, on their drive through the Tennessee countryside, Mary Baird Bryan expressed her fears that the antievolution crusade would cross the line between a narrow effort by taxpayers to control public education and a broad assault on individual freedom of speech and belief. She recorded their exchange in an account published later that year: “‘Well, Mama, I have not made that mistake yet, have I?’ and I replied, ‘You are all right so far, but will you be able to keep to this narrow path?’ With a happy smile, he said, ‘I think I can.’ ‘But,’ I said, ‘can you control your followers?’ and more gravely he said, ‘I think I can.’”⁹ He never got that chance. After returning to Dayton for Sunday services at the southern Methodist church, where he offered the morning prayers, Bryan died in his sleep during his afternoon nap. The final words of his last speech, lifted by him from his favorite hymn to dramatize the promised results of eliminating public school instruction about human evolution, seemed a fitting eulogy: “Faith of our fathers—holy faith/ We will be true to thee till death!”¹⁰

Word of Bryan’s death reached Darrow that afternoon as he vacationed in the Smoky Mountains. “People down here believe that Bryan died of a broken heart because of your questioning,” a journalist commented. Darrow reportedly shrugged his shoulders and replied, with a reference to the Commoner’s legendary appetite that would thereafter color the popular image of Bryan at Dayton, “Broken heart nothing; he died of a busted belly.” Back in Baltimore, Mencken characteristically joked, “God aimed at Darrow, missed, and hit Bryan instead,” but privately he reportedly gloated, “We killed the son-of-a-bitch!”¹¹

Darrow had not been idle during the days immediately following the trial. In addition to responding to Bryan’s sporadic statements, he had given a public lecture in Knoxville and attended a farewell party thrown by departing journalists. Hays later wrote about local high school students who attended this party and recalled that Darrow “danced with and even smoked cigarettes with them.” Hays and Darrow hoped to see the youths of Tennessee turn from their parents’ repressive ways. “Smoking, dancing, free association between girls and boys, games and movies on Sunday had been their issues at home,” Hays added. “Here [we] were champions indeed.”¹² No such generation gap developed with regard to teaching evolution in Tennessee, however; the Scopes defense attracted its share of senior supporters, such as Neal, and the most enthusiastic prosecutors were under 30 years old. Darrow’s prediction that the rising generation soon would repeal the antievolution statute failed to come true. Indeed, after interviewing local students about Scopes, one journalist reported as a typical response: “I like him, but I don’t believe I came from a monkey.”¹³ Few Tennesseans—of any age—believed otherwise.

Dayton quickly returned to normal following the trial, with few visitors other than the Bryans and the Darrows remaining by the week’s end. “Dayton has benefited, physically and mentally, by the ‘evolution trial,’” trial promoter Fred Robinson boasted to a departing reporter, citing the refurbished courthouse and intellectual stimulation. Yet few perceived a lasting change. “Every indication is that Dayton is back where it was before the trial began, a sleepy little town among the hills,” the Nashville Banner observed at midweek. Even Scopes shook the dust of Dayton from his feet before the week ended.¹⁴

Scopes no longer felt at home in Dayton. Following the verdict, the local school board offered to renew his teaching contract for another year provided that he comply with the antievolution law, but Scopes already had his sights fixed on graduate school. “Shortly before the trial was over, Kirtley Mather of Harvard and Watson Davis of the Science Service had notified me of the scholarship fund that expert witnesses were arranging for my graduate study in whatever field I chose,” Scopes later explained. “One of my most valuable windfalls at Dayton had been listening to and associating with the distinguished scientists who stayed at the Mansion. They had broadened my view of the world.” By the time Bryan died, Scopes already had left for the University of Kentucky to inquire about entering law school that fall. He ultimately settled on studying geology at the University of Chicago and became a petroleum engineer. In doing so, he passed up offers to capitalize on his fame through paid appearances on the lecture and vaudeville circuits and in movies. “I knew I would not live happily in a spotlight,” Scopes concluded. “The best thing to do, I was beginning to realize, was to change my life and seek anonymity.”¹⁵

Robinson and Scopes were not alone in their efforts to determine whether the trial had any lasting potiential benefits. In the trial’s immediate aftermath, both sides found reason to celebrate. The prosecution claimed a legal victory; the defense a moral one. “Each side withdrew at the end of the struggle satisfied that it had unmasked the absurd pretensions of the other,” the veteran New York Times reporter Russell D. Owen concluded.¹⁶ On the day of the verdict, for example, Herbert Hicks boasted in a letter to his brother Ira, “We gave the atheist Jew Arthur Garfield Hays, the agnostic Clarence Darrow, and the ostracized Catholic Dudley Field Malone, a sound licking although the papers are prejudiced against us and may not say so.” His alleged victims thought nothing of the kind. From the stage of New York’s Ziegfeld Follies two days later, Malone declared the trial a “victorious defeat” that would help assure that “future generations will know the truth.” Hays reiterated this point in an essay for The Nation, claiming, “It is possible that laws of this kind will hereafter meet with the opposition of an aroused public opinion.”¹⁷

Defense claims of victory clearly relied on popular reactions to the trial rather than solely on what transpired within the courtroom—and surely Malone and Hays hoped their confident claims would promote the desired response—but others closely associated with the trial tended to see momentum shifting in Bryan’s favor. Mencken’s final report from Dayton concluded by warning that “Neanderthal man is organizing in these forlorn backwaters of the land, led by a fanatic, rid of sense and devoid of conscience.… There are other States that had better look to their arsenals before the Hun is at their gates.” Talking to reporters in New York on his return from the trial, Charles Francis Potter forecast a national epidemic of antievolution lawmaking following the Scopes verdict. Asked about Potter’s comments, John Roach Straton readily agreed, boasting that southern states would be the first to enact such laws, followed by western ones, and that the movement then would sweep the North and West.¹⁸

Tennessee newspapers generally offered a more equivocal initial assessment of the trial and its impact. Observing that the prosecution upheld the law in court even as the defense promoted its cause with the general public, a Nashville Banner correspondent concluded, “To call it a draw would be incorrect. The state and the defense each won a clear-cut and decisive victory.”¹⁹ The dueling commentators for the Chattanooga Times issued a split decision, the fundamentalist asserting that “Darrow, the agnostic, and his crowd… met their match in the grand old Commoner,” while the modernist declared Bryan “shorn of strength” by Darrow’s interrogation.²⁰ Even the proprosecution Memphis Commercial Appeal did not declare a single winner after Bryan’s tortured testimony. “We saw an attempted duel between science and religion at Dayton,” its editor observed, but he concluded that both sides lost ground.²¹

Similarly, the nation’s press initially saw little of lasting significance in the trial beyond its having exposed Bryan’s empty head and Darrow’s mean spirit. After the verdict, a feature article in The New Republic denounced the trial as “a trivial thing full of humbuggery and hypocrisy.”²² Next-day editorials in both the New York Times and the Chicago Tribune predicted that the fight for and against teaching evolution would continue unabated.²³ The Literary Digest for the week summed up consensus among the press: “The trial at Dayton is no more than an opening skirmish, ‘a clash of picket hosts that can not be decisive,’ remarks the New York Evening Post; and other papers and commentators agree that it may mark the beginning of a great fight between the Fundamentalists and the Modernists.”²⁴

The same newspapers and magazines that dismissed the results as indecisive had given the trial unprecedented coverage only a week earlier; journalists wired two million words from Dayton during the trial, including more from America to Europe than just about any prior news event. Yet the New York Times—which used as many as five telegraph wires at a time to carry reports from Dayton—observed afterward that the trial’s abrupt end saved “the public from having its ears bethumped with millions more of irrelevant words.”²⁵ So long as the trial lasted, events at Dayton dominated the news, having received front-page coverage across the nation for a fortnight; as soon as Scopes lost, the story no longer was considered newsworthy and resurfaced only briefly when Bryan died. The Tennessee trial was simply the latest thrill during the kaleidoscopic Roaring Twenties. The great southern sociologist Howard W. Odum tracked press coverage at the time and counted that “some 2,310 daily newspapers in this country” covered the Scopes trial, and found “no periodical of any sort, agricultural or trade as well, which has ignored the subject.”²⁶

The timing of Bryan’s death caused some to reassess the trial’s potential significance. “Nothing could be more dramatic in time or in manner than the death of William Jennings Bryan, following so soon upon his appearance in the Dayton court room,” Walter Lippmann wrote in the New York World. “His death at this time will weight his words at Dayton with the solemnity of a parting message and strengthen their effect upon his fellow citizens.”²⁷ Although Bryan reportedly died of apoplexy, people generally assumed that the stress of the trial precipitated the attack. Many blamed Darrow personally. “I could sense an opinion forming that Bryan was a martyr who had died defending the Grand Old Fundamental Religion,” Scopes commented, after a brief return visit to Dayton the following week. “Soon afterward there was a rumor about town that ‘that old devil Darrow’ had killed Bryan with his inquisition.” In early August, George Rappleyea reported to ACLU officials in New York, “The death of Bryan swept away any victory we might have gained before the people of Tennessee; I am the only modernist that now remains in Dayton.” Governor Peay made it official with a proclamation declaring that Bryan died “a martyr to the faith of our fathers” and announcing a state holiday to mark the funeral.²⁸ After studiously ignoring the Scopes trial for weeks, Peay began taking a keen interest in winning the appeal—an apparent reaction to the defense’s treatment of Bryan and Tennessee.

The Commoner’s funeral became a national event. Crowds lined the tracks as a special Pullman car carried the body to Washington for burial at Arlington National Cemetery. Thousands filed by the open coffin, first in Dayton, then in several major cities along the train route, and finally in the nation’s capital. Flags flew at half-mast. Shops closed. America’s political elite attended the burial, and senators and cabinet members served as pallbearers. Bryan’s former foes in the press now hailed his passion and integrity. “He tried to do the right thing as he saw it,” the New York Herald Tribune observed in a typical editorial. “His passing will be a profound shock to millions who, however often he misled them, looked upon him as their prophet and counselor,” a Philadelphia paper added.²⁹ This popular reaction was captured in a country music ballad, “Death of William Jennings Bryan,” recorded only a week after the event; successive stanzas praised the Commoner for battling capitalists and helping workers, but one related directly to the Scopes trial: “He fought the evolutionists and infidel men, fools/ Who are trying to ruin the minds of children in our schools.” Bryan clearly retained a large following in spite of (and perhaps due to) his role in the trial. Indeed, in a memorial tribute, William Bell Riley described the Tennessee trial as “Bryan’s best and last battle.”³⁰

Many of those mourning their Peerless Leader’s passing vowed to carry on his final crusade. On his way to the funeral, Bryan’s brother Charles—a former governor of Nebraska and 1924 Democratic vice presidential nominee—talked of continuing his brother’s work and forecast that “Congress eventually will be called upon to take a hand in the evolution controversy.”³¹ As Bryan lay in state, the governor of Mississippi declared that his state “will probably follow the lead of Tennessee and bar the teaching of evolution in the schools”—a prediction that came true as soon as his state’s legislature next met. The public campaign for that legislation even featured speeches by Ben McKenzie telling the story of Bryan’s last stand at Dayton.³² During the fall of 1925, Texas Governor Miriam Ferguson—the South’s first woman governor—directed her state’s textbook commission to delete the theory of evolution from high school texts, a ban that for decades forced publishers to produce special edited versions of their biology textbooks for use in the Lone Star State. Throughout the country, dozens of fundamentalist leaders (including Riley, Straton, Norris, and Martin) rushed to don Bryan’s fallen mantle, loosing a frenzy of uncoordinated antievolution activity. During the next two years, measures to restrict teaching evolution surfaced in more state legislatures than ever before.

Country and western music captured this legend from the grass roots. The well-known Georgia balladeer Andrew Jenkins sang:

There was a case not long ago in sunny Tennessee,

The Bible then on trial there must vindicated be,…

Oh, who will go and end this fight, oh, who will be the man?

To face the learned and mighty foe, and for the Bible stand?

Bryan, the song continued, became the hero who “went to end the fight.” Also in 1925, Columbia record company released a country folk song that declared:

When the good folks had their trouble down in Dayton far away,

Mr. Bryan went to help them and he worked both night and day.

There he fought for what was righteous and the battle it was won,

Then the Lord called him to heaven for his work on earth was done.

These and other compositions, collectively known as “Scopes songs,” revealed a popular perception of the trial already departing sharply from the historical record. In this version of the Scopes legend, a heroic Bryan inevitably saved the schoolchildren of Tennessee from the damnable teaching of evolution. By September 1925, a popular-music magazine reported that the Columbia release “is selling exceptionally well, especially in the South and throughout the regions where the late Commoner was most active.”³⁴ Three months after the trial, Mencken could only sneer about the man he so despised, “His place in the Tennessee hagiocracy is secure. If the village barber saved any of his hair, then it is curing gall-stones down there today.”³⁵ The legend faded with time, but not before its inspiration led to the realization of Walter White’s dream of a fundamentalist college in Dayton named in Bryan’s honor. The Commoner and the Scopes experience had transformed Dayton from a religiously apathetic community into a center of faith.

At the time, in sharp contrast with later legends about the Scopes trial, no one saw the episode as a decisive triumph for the defense. “In examining the coverage of the trial in five geographically scattered newspapers and over a dozen national magazines,” Ronald L. Numbers observed, “I discovered not a single declaration of victory by the opponents of antievolutionism, in the sense of their claiming that the crusade was at an end.” Indeed, following Bryan’s death, many of them feared precisely the opposite. A mid-August editorial in the Nation, a liberal journal of political opinion, referred to the antievolutionists’ “success at Dayton” and predicted a “flood” of fundamentalist lawmaking across the land. In October, Mencken darkly warned, “The evil that men do lives after them. Bryan, in his malice, started something that it will not be easy to stop.” Maynard Shipley’s Science League took on the role of a Jeremiah by issuing a steady stream of dire prophecies about a pestilence of antievolutionism sweeping the nation. “The forces of obscurantism in the United States are in open revolt!” Shipley wrote, a full two years after the Scopes trial. “Centering their attacks for the moment on evolution, the keystone in the arch of our modern educational edifice, the armies of ignorance are being organized, literally by the millions, for a combined political assault on modern science.”³⁶

From the moment that he objected to courtroom prayer, a noisy segment of those opposed to antievolutionism blamed Darrow for the failure of the Scopes defense to stem the tide of fundamentalism—criticism that only increased after Bryan’s death. Their reasoning reflected their own religious viewpoint. Some secular critics of the Tennessee law defended Darrow, but the Chicago agnostic was as much a pariah to reigious modernists and mainline Christians as he was to fundamentalists. “Now that the chuckling and giggling over the heckling of Bryan by Darrow has subsided it is dawning upon the friends of evolution that science was rendered a wretched service by that exhibition,” Walter Lippmann wrote for the New York World. “The truth is that when Mr. Darrow in his anxiety to humiliate and ridicule Mr. Bryan resorted to sneering and scoffing at the Bible he convinced millions who act on superficial impressions that Bryan is right in his assertion that the contest at Dayton was for and against the Christian religion.” Speaking from the region most directly affected, the New Orleans Times- Picayune commented, “Mr. Darrow, with his sneering, ‘I object to prayer!’ and with his ill-natured and arrogant cross-examination of Bryan on the witness stand, has done more to stimulate ‘anti-evolution’ legislation in the United States than Mr. Bryan and his fellow literalists, left alone, could have hoped for.”³⁷

A varied array of Christians complained of Darrow’s role in the case. “Some of us regret that in the unique Scopes trial, on which so much popular education depends, we should not have, for the trial, lawyers who understand the point of view of the ordinary, thoroughly educated Christian,” a mainline church journal commented. A Congregational Church official offered his observations in a letter sent to the ACLU: “May I express the earnest opinion that not five percent of the ministers in this liberal denomination have any sympathy with Mr. Darrow’s conduct of the case?” From Nashville, the Vanderbilt University humanist Edwin Mims complained, “When Clarence Darrow is put forth as the champion of the forces of enlightenment to fight the battle for scientific knowledge, one feels almost persuaded to become a Fundamentalist.” The gravity of the issue was underscored for ACLU officials in September, when Raymond B. Fosdick—attorney for the Rockefellers and the brother of Harry Emerson Fosdick—curtly rejected an invitation to join their Scopes defense fund committee with the rebuke, “Largely through the choice of counsel a great opportunity was lost to place the case on a plane where the tremendous issue between tolerance and intolerance could be clearly seen.” Roger Baldwin wrote back to Fosdick, “I guess we here all feel as you do about the handling of it. What we are trying to do now is to get the issue clear on the appeal.”³⁸

As Baldwin’s letter to Fosdick suggests, ACLU officials in New York already had turned their attention to the appellate phase of the case. Once again they maneuvered to exclude Darrow from the defense team. The ACLU’s executive committee hatched its plan in early August: ease out Darrow by urging more “priority” for Tennessee counsel. Associate Director Forrest Bailey, who oversaw the Scopes case for the ACLU, wrote to John Neal, “All of us feel that when the case goes to the Supreme Court of the State, there ought to be more of Neal and less of Darrow. This is the stand we are taking in response to the many urgent suggestions that Darrow ought to disappear from this point on.” Hays dissented from this position, Bailey noted, “but I hope you see the other angle of the thing as we do.” Apparently he did. Rappleyea soon reported to the ACLU about a meeting with Neal in which the two agreed that Darrow should not appear before the state supreme court. Otherwise, Rappleyea explained, “It will not be our cause on trial, but it will be a case of the State of Tennessee vs. Clarence Darrow, the man who spiritually and literally crucified Bryan on the cross examination.”³⁹

As chief counsel of record, Neal had the authority to remove Darrow from the case. To further encourage this step, Bailey wrote to several liberal religious leaders with close ties to the ACLU, asking them to write Neal concerning the matter. “We are constantly receiving criticism and protests concerning the Darrow personality and the harm it may do us,” Bailey confided in these letters. “If your opinion is in accord with that which I have expressed, would you be willing to write a letter letting it appear that you do so purely on your own initiative, either to Mr. Darrow or to Dr. John R. Neal, expressing your personal convictions?” Within days, a pointed editorial appeared in The New Republic—whose editors enjoyed close ties to the ACLU leadership—criticizing the conduct of the Scopes defense and urging that Tennessee lawyers handle the appeal.⁴⁰

It proved impossible, however, for the ACLU to secure either less of Darrow or more of Neal. The causes overlapped. Darrow soon learned of the ACLU’s conspiracy against him and let union officials know that he knew about it. Bailey apologized with a letter dismissing the matter as a “misunderstanding” over the role of local counsel and lying, “I never at any time asked that you be invited to withdraw.” Darrow shrewdly accepted Bailey at his word and even agreed with him about the need for “a leading Tennessee lawyer” to assist with the appellate argument, but added that Neal—Darrow’s potential rival for control of the case—could not fill the role. “He is a fine man,” Darrow wrote in strict confidence, “and could have been a good lawyer if he had given his time to it, but he has chosen to be a professor and is not equipped to take the leading part in arguing the case.” Darrow suggested that the role go to either Robert S. Keebler, the Memphis attorney who had led the fight against the antievolution statute within the state bar association, or Frank Spurlock, the Chattanooga lawyer who had come to Darrow’s defense in the contempt proceedings.⁴¹ Bailey did not so easily give up on Neal either as a lawyer or as a means to assert control over the defense, and twice arranged for him to come to New York to discuss a diminished role for Darrow in the case. Neal turned back on both occasions before meeting with ACLU officials, apparently unwilling to confront Hays over the matter. Instead, he wasted his time filing two frivolous petitions in federal court seeking to restrain enforcement of the antievolution statute.

In early September, ACLU counsel Walter Nelles proposed to Bailey a different way to displace Darrow: Have the ACLU relinquish control of the case to a committee of prominent attorneys, and have it select the former U.S. Supreme Court justice and 1916 Republican presidential nominee Charles Evans Hughes to argue the appeal. Hughes soon signaled his willingness to join the cause with a thundering attack on fundamentalist lawmaking in his presidential address to the 1925 annual meeting of the American Bar Association. When Bailey shared Nelles’s suggestion with Hays, however, the Scopes co-counsel exploded. “I think the effect of the publicity of the case and the manner of the trial gives us a better chance for reversal than if the matter had been handled otherwise,” Hays wrote in an angry letter to Nelles. “For other lawyers to win it on appeal will take from Darrow and Malone the credit to which they are entitled. More than this,… I am not willing to have conservative lawyers and conservative organizations reap the benefit of work done by liberals or radicals.” In a pointed reference to Hughes, Hays added, “I never yet have found any conservative lawyer who, at the beginning, wanted to undertake a case which might reflect discredit on him. When it turns out differently and there seems to be some publicity or honor to be had, then offers of assistance come from all over the country.” Nelles backed down for the present, but asked Hays at least to consider alternative counsel should the case reach the U.S. Supreme Court.⁴²

Darrow had other influential allies in addition to Hays, and their support (coupled with Neal’s ineptitude) probably saved his place on the defense team. Several journalists, particularly those such as H. L. Mencken and Joseph Wood Krutch, who shared Darrow’s hostility toward fundamentalists, maintained that the defense needed to expose Bryan and his “fool ideas” on religion, as Darrow called them at trial, even if it meant losing the case and alienating some mainline Christians. Furthermore, Watson Davis’s Science Service arranged for all of the scientific expert witnesses to sign a letter endorsing Darrow’s “ability, high purpose, integrity, moral sensitiveness, and idealism.”⁴³

The ACLU could hardly dismiss Darrow without antagonizing one faction of its supporters, and Neal seemed incapable of doing the job for them. Although Neal proudly boasted of his status as chief counsel, he persistently failed to communicate with co-counsel and missed the deadline for filing the bill of exceptions with the state supreme court. The missed filing precluded the defense from appealing any issues relating to the conduct of the trial—including the ruling on expert testimony; it could only challenge the validity of the antievolution statute. Even Bailey despaired and, in conjunction with Darrow, asked Scopes to bring Keebler or Spurlock on board as local counsel.⁴⁴ Scopes showed no interest in involving himself in the dispute, however, leaving the appeal adrift for months until Keebler, Spurlock, and other sympathetic Tennessee attorneys simply assumed responsibility for handling local administrative and procedural matters. “It was necessary to take control from Judge Neal,” Darrow informed the ACLU office. “We never would have gotten the case to the Supreme Court unless we had taken steps to work without him.” Amidst bitter infighting, the basic issue of control remained unresolved for the defense throughout the appeal process. As late as December, when one of the assisting local attorneys asked ACLU officials about who would argue the appeal, Bailey confessed uncertainty. “We ourselves have no interest in wishing to have Darrow, Malone and Hays continue,” he answered. “My only point was that we should not be made to appear as having kicked these men out.”⁴⁵

Fundraising for the defense also languished. The ACLU had run up $5,400 in expenses for the Scopes case by year’s end (mostly for expert witnesses), but it had raised only $3,800 in its special Tennessee Evolution Case Defense Fund, more than one-third of which came through Malone. Although acting ACLU chair John Haynes Holmes assembled an impressive group of academics to serve on the fund’s advisory committee, many of the “money people” (as Bailey called them) hesitated to join owing to Darrow’s connection with the case.⁴⁶ Ultimately, it took a special appeal to members of the American Association for the Advancement of Science to wipe out the deficit, but that did not occur until 1926.

Internal conflict and confusion also hampered the state’s effort on appeal. Primary responsibility for defending the law before the state supreme court fell on Tennessee’s elected attorney general, Frank M. Thompson, but Governor Peay insisted on playing a part. Both officials, however, suffered from chronic illnesses that inhibited their ability to cope with the stressful case and would soon kill them. Peay spent the entire trial resting at a sanitarium in Battle Creek, Michigan, where he became seriously agitated over national coverage of the event. “While Governor Peay was still in Battle Creek,” Nashville attorney K. T. McConnico later explained, “General Thompson conferred with me about my appearance as special counsel for the state in the Scopes case, which he said was needing study and attention more than he and his assistants could give it in view of the very onerous duties of his department and in view of his own physical condition.”⁴⁷ Yet only the governor held authority to employ special counsel for the state, and Peay picked the Nashville attorney Ed T. Seay to handle the appeal. These two lawyers ended up working together on the matter, but at a high cost that the state balked at paying after Thompson and Peay died in office.

Further complications arose when William Jennings Bryan, Jr., and Samuel Untermyer asserted their interest in assisting the state. The elder Bryan had invited both of these attorneys into the case, but Peay and Thompson did not want outside counsel involved. “The people of this state thoroughly resented Darrow, Malone and the others from coming here to undo their statute and in deference to their feelings I suggested that it would be better for us to use local counsel,” Peay wrote to Untermyer, who, ironically, had just joined the ACLU national committee but stood with Tennessee on the Scopes case.⁴⁸ Peay made an exception for the younger Bryan, largely out of sympathy, but the state later proved reluctant to reimburse his expenses.

With neither side pushing for early consideration of the matter, the appellate process dragged on for eighteen months, during which period the Scopes case continued to rankle Tennessee. At its annual meeting in November, the Tennessee Academy of Sciences went on record against the antievolution statute and soon thereafter filed a brief with the supreme court on Scopes’s behalf. The Unitarian Laymen’s League, a national association that included members from Tennessee, also submitted a brief in support of Scopes—the only other group to do so. Late in 1925, the Tennessee Christian Students Conference, a modernist association of collegians from throughout the state, adopted a resolution condemning the antievolution statute as harmful to both education and religion.⁴⁹ On the other side, conservative religious and patriotic organizations besieged Governor Peay with letters and petitions urging him to stand firm. The Ku Klux Klan took up the cause with vigor, and the defrocked Klan official Edward Young Clarke formed a short-lived rival group in the Southeast called the Supreme Kingdom, whose primary purpose was carrying on Bryan’s crusade against teaching evolution. Regional opinion had so solidified that when Mississippi passed its antievolution statute early in 1926 the ACLU could not entice a local teacher or taxpayer to challenge it, despite offers similar to those that recruited Scopes.⁵⁰

Tennesseans caught in the middle felt increasingly frustrated. George Fort Milton, for example, took his family on an extended trip to the West Coast. “We hope to wipe out the last trace of the Dayton trial, for it was a trial not only of Scopes, and of the state, but of the fortitude and self-possession of all of us,” he wrote to Peay, adding a plea “to keep down any attempts of your friends to inject fundamentalism into state politics as a political issue.” Yet 1926 was an election year in Tennessee, with all state offices on the ballot—including every seat on the supreme court. “The greatest problem has been in keeping the case out of politics,” one of its assisting local attorneys reported to the ACLU. “Both the Democratic candidates for governor are loudly proclaiming their respective defenses of the faith and Peay’s only opponent is doing all within his power to out Herod Herod.” Running on his record as both a progressive reformer and defender of religion, and despite declining health, Peay handily won an unprecedented third term as Tennessee governor, only to die a few months later. In an apparent attempt to keep the Scopes controversy out of their campaigns, the state supreme court justices delayed their decision in the case until after the election. Scopes privately interpreted this as a sign that they planned to overturn the statute. His lawyers shared his optimistic outlook.⁵¹

Defense counselors based their optimism on the strength of their written and oral arguments to the high court. Hays and Keebler took the lead in drafting the defense’s appellate brief, signed by nine attorneys—including Darrow, Malone, and Neal. After reviewing the book-length document, Bailey expressed his concern to Hays that the names of “six ‘foreigners’ and only three ‘natives’” appeared as signatories, but conceded to Keebler, “The brief is an excellent one and ought to do the trick.” In reply, both attorneys smugly predicted victory, though Hays had admitted earlier to Nelles that “perhaps I have become over-convinced by the brief I have written.”⁵²

At least to themselves and their crowd, the defense’s argument seemed compelling, even though it added nothing of consequence to that made at Dayton. Once again, the defense stressed that the antievolution statute unreasonably restrained the individual liberty of teachers and students by establishing a preference in public education for a particular religious belief over the conclusions of modern scientific thought. Since the argument had not changed, defense hopes clearly rested on an assumption that a more sophisticated audience in Nashville would judge it. Speculating about the impact of this brief on opposing lawyers, Neal gloated, “It is quite evident that they have been presented with a much tougher problem than they expected. Victory doesn’t now seem quite so impossible or visionary.”⁵³

If the defense brief intimidated Tennessee’s lawyers, their 400-page reply brief did not show it. Writing for the state, Seay and McConnico countered the defense’s plea for academic freedom with an unabashed appeal to majoritarianism that would have made the Commoner blush. “The public schools are created by the legislature,” the brief began in Bryanesque fashion, “and the courts can in no manner control, limit or proscribe the legislature in the exercise of power” over them. It did not end there. “The fact that a group of self-styled ‘intellectuals’ who call themselves ‘scientists’ believe that a certain theory or thing is true does not to any degree prevent the state legislature… from forbidding the teaching or practicing of such a thing or theory which the legislature may conclude to be inimical… to the general public welfare.” Bryan crusaded only against teaching evolution in public education and maintained throughout that evolutionists could start their own schools; the state’s brief recognized no such limits on majority rule. “‘Scientific’ superficialists and intolerants,” it emphasized, “under a perhaps soiled or even red banner of ‘academic freedom’ [cannot] foreclose the police power of the State’s constitutionally chosen and elected representatives as to what is required for the public welfare.” Relying on a recent U.S. Supreme Court decision upholding a compulsory school vaccination program, the brief asserted, “What the public believes is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.”⁵⁴ In this brief, the state sounded more like Billy Sunday than Bill Bryan.

Briefs submitted by the Tennessee Academy of Sciences and the Unitarian Laymen’s League attempted to answer the state’s arguments, as did a supplementary memorandum filed by the defense. “Suffice it to say here that… their theory would absolutely nullify constitutional government and inaugurate the dictatorship of the majority,” the Academy’s brief noted. “The cases relied on by the State involved reasonable regulations made by the legislative body in relation to public work—not unreasonable, arbitrary, and capricious regulations.” All three additional appellate documents attempted to show the unreasonableness of the antievolution regulation, the Academy stressing scientific arguments for teaching evolution and the Unitarians attacking religious ones against it. “Innumerable numbers of our greatest Christian scientists, philosophers, educators and ministers firmly believe in the truth of the origin of man as taught by evolution,” the Academy’s brief concluded. “The State has no right… to stifle by legislation the influence of such men.”⁵⁵

The Tennessee Supreme Court set aside two days at the end of May for oral arguments—much more time than it customarily gave to cases. Scopes’s trial team reassembled for the event, augmented by Keebler but absent Malone; Seay and McConnico stood alone for the state. “Newspaper men from many parts of the country are assembling in Nashville, and special leased wires have been arranged by the various news agencies to lead from the courtroom itself,” one local paper reported. Spectators again filled the chamber. “Every door and window was blocked by scores who, unable to gain entrance, contented themselves by standing on chairs and tables,” another paper noted. “Many others are turned away.” Darrow promised to keep on his big-city suit coat and vest this time, but assured reporters that he still wore the small-town suspenders underneath, joking that he “would doubtless be quite lost without them.” The two most responsible for bringing the case, George Rappleyea and John Butler, claimed front-row seats. Scopes himself refused to attend, curtly telling the press that he was “not interested in the outcome and wanted to forget the entire episode.” Promoters and proselytizers had harassed him for nearly two years; he wanted his privacy back.⁵⁶

Fulfilling his now titular role as chief counsel for Scopes, Neal rose first to introduce the case. It soon became clear, however, that the defense never resolved who should deliver its oral argument. As it turned out, everyone would. An attorney for the Unitarian Laymen’s League opened the argument with a rambling denial “that the teaching of the evolution theory is likely to cause our youth to lose their faith in God.” Hays followed with a thumping legal plea grounded squarely on the due process clause of the Fourteenth Amendment, which he claimed prohibited any state from enforcing unreasonable laws. Tennessee’s “absurd” antievolution statute violated this standard as much as a law against teaching Copernican astronomy would, Hays asserted. “The theory of our constitution is that in the competition of ideas, truth will prevail,” he concluded. “We plead for freedom of education, for the liberty to teach, and the liberty to learn, for in this small statute lies the seed of a doctrine which in generation may reach out and stifle education.” Counsel for the Tennessee Academy of Sciences finished the initial presentation for the defense by warning of dire consequence for science and medical education if the law remained in effect.⁵⁷

Seay opened the state’s rebuttal with a broadside. “Our adversaries tell you it is a controversy between modernists and fundamentalists. But I tell your honors there is something more,” he warned. “If you permit the teaching that law of life is the law of the jungle, you have laid the foundation by which man can be brought to accept the doctrine of communism and to the point where he believes it right to advocate murder.” Seay identified Darrow as a case in point: a defender of Communists and murderers as well as evolutionists. “The Tennessee legislature passed this law to stamp out worse things” than merely teaching evolution, he baldly asserted. Yet the statute itself did not cross the line into promoting religion, he assured the court, because “there is no authority for any teacher to teach the theory of divine creation in the public schools.” Seay thus gave the statute a clear secular purpose rather than a solely religious one. Seay reinforced his remarks by reading from a written statement submitted to the court by William Jennings Bryan, Jr., in which he described the law as the “deliberate, thoughtful enactment of a sovereign people, which was designed to protect their children in their own public schools in their beliefs in the divine origin of man, which in turn measures their responsibilities to God and their fellow man.” Borrowing from the rhetorical arsenal of the defense, the younger Bryan described the issue as one of “freedom” but defined that concept in a way his father would have recognized: the “freedom” of the majority to “protect the children of the state in the public schools in their common belief.”⁵⁸

Arthur Garfield Hays at the time of the Scopes litigation. (Courtesy of Bryan College Archives)

The court adapted its customary procedure to accommodate the unusual case by permitting Keebler and co-counsel from the Academy of Sciences to respond to Seay before hearing the scheduled closing arguments. Resurrecting accusations leveled against the ACLU during the Red Scare, Seay attributed the ACLU’s interest in the Scopes case to a pro-Communist agenda. Keebler countered that such interest arose solely because the statute denied academic freedom. The law did not serve the broad secular purpose of protecting American values, he added, but merely promoted “that peculiar dogmatism of the Christian church” known as fundamentalism.⁵⁹ After court recessed for the day, the Academy co-counsel resumed this line of defense in the morning. He denounced Seay’s personal attacks on Darrow and evolutionists. “We all know that thousands of people in this very state, who are devoutly Christian, believe at the same time in the divine origin of man and in his development from a lower form of life,” the Nashville attorney added. “There is obviously no conflict between the doctrine of evolution, as applied to man, and the doctrine of man’s divine origin.” After hearing these lawyers, one reporter observed, “Whereas in Dayton the Scopes defense found little sympathy for their arguments among the town’s citizens and less still from the members of the bar, here the people are indifferent while the local attorneys express convictions that the law is invalid.”⁶⁰

Any public indifference regarding the law’s validity did not diminish popular interest in the case, however. In anticipation of hearing Darrow’s closing argument, a record audience assembled for the second day, including “many women of prominence in the social life of the city,” as one reporter observed. McConnico, a noted local orator, arrived early for his clash with Darrow and brought with him a large selection of his opponent’s published writings. When Darrow arrived and saw his “Argument in the Defense of Communists” laying on top of the pile, he joked with McConnico, “You won’t have much time for anything else.”⁶¹ The scene was set for the dramatic close.

Hoping to establish guilt by association, McConnico resumed the state’s broad assault against the defense. He stressed Darrow’s agnosticism and the ACLU’s radicalism. When seeking aid in challenging the statute, McConnico charged, “Dr. Neal knew where to get comfort.” The ACLU’s promotion of the trial and Darrow’s treatment of Bryan received severe criticism. When the state’s counsel began criticizing local attorneys for assisting the defense, the court finally directed him to “confine himself to the case before the court.” By then, however, his allotted time was running out. He closed with two points. In passing the law, McConnico asserted, the legislature simply sought to “preserve the Bible for all sects” rather than to favor fundamentalism. Ninety-five percent of Tennesseans believed in life after death, he estimated, and teaching evolution undermined this vital faith. Furthermore, McConnico added, the statute did not establish religion but merely provided that “since the Bible can’t be taught [in public schools], we wouldn’t let this thing called anti-Bible be taught.” The state’s attorney asked the court, “Would not Tennessee be committing a tragedy in civil government if it did not intervene to prevent the teaching in her public schools of a dogma conceded to destroy the minds of the people, whether it is right or wrong?” To cheers from the gallery, he urged the justices “to resist the ‘sinister and unclean’ efforts being made to teach ‘this animal dogma’ in the public schools of the state.”⁶²

Ignoring the personal attacks against him, Darrow delivered his prepared closing. It was less a legal argument than a plea for freedom that reflected a thoroughly modern view of science and religion. Seay and McConnico had referred to the Bible as truth and science as opinion; Darrow now reversed the designation. He portrayed religion as a personal matter “that ought to be the affair of the individual” and science as a public activity that “is the cause of progress… and everything that makes civilization today.” In accord with his viewpoint, he asserted, “The schools of this state were not established to teach religion. They were established to teach science.” Darrow assumed that the Tennessee and U.S. constitutions, through their protection for public speech and from religious establishment, shielded science from religion in the common schools. “The future of America’s public school system and the complete education of her children can be safeguarded only by wiping this law off the statute books,” he declared. When asked by one justice if the state could bar all teaching about origins (whether religious or scientific), as Seay and McConnico proposed, Darrow replied, “You would have to first amend your school act which prescribes that biology must be taught because that is all biology is.” Comparing Scopes’s conviction to the execution of Socrates, Darrow concluded his hour-long argument to great applause as he declared, “We are once more fighting the old question, which after all is nothing but a question of the intellectual freedom of man.”⁶³

Despite rhetorical flourishes on the final day, the appellate hearing failed to stir passions. “Argument before the Supreme Court was in a far different atmosphere from that of the trial,” Hays observed. The Chattanooga Times called it “a flop as a news story as compared with the trial.” At the end, an Associated Press correspondent observed, “Those who had been drawn to the courtroom in hopes of hearing a verbal clash between the distinguished counsel were disappointed.” The formal nature of the proceedings certainly stifled emotions. “Everything was calm, dignified and quiet,” Hays recalled. “There was no rising to the feet to interpose objections, no bickering between members of the counsel and no religious or anti-religious atmosphere,” the Chattanooga Times added.⁶⁴ Bryan’s absence reduced the drama and Darrow’s style best fit a trial. Finally, the hearing did not end with a climactic verdict. The high court simply took the arguments under advisement and, in this case, waited seven months before issuing its opinion. In the meantime, both sides forecast victory.

Belying its public predictions, the ACLU privately planned for the case to continue. Those plans did not include Darrow. “Now that the Scopes case has gone up to the Tennessee Supreme Court, it is time to consider policies in connection with further appeals,” Bailey wrote to Darrow two days after oral arguments. “We feel that whoever argues the case before the United States Supreme Court should be utterly beyond the reach of prejudice of certain members of that august body, and we seriously doubt whether you, Mr. Malone or Mr. Hays, for example, would meet this requirement.” Flatly refusing to step aside, Darrow shot back, “Any possible prejudice that might exist to Mr. Hays or me, would be very much stronger against your organization.” ACLU leaders stood firm. This appeal meant too much to them: a chance for the ACLU’s first major victory and a crack at respectability with Charles Evans Hughes on board. They appealed to Scopes. “I want to say confidentially now that if Mr. Darrow and Mr. Hays insist upon staying in the case and arguing it before the U.S. Supreme Court, the Civil Liberties Union will probably have to withdraw,” Roger Baldwin informed Scopes. “You are the defendant. You have the right to employ whom you choose to take up your case.… You may be put into the position of making the choice.” ACLU counsel Wilcott H. Pitkin privately explained that Darrow’s continued participation “would probably influence badly one or more judges of the Supreme Court [and] would make it impossible… to procure the names of reputable church-going lawyers on the brief.”⁶⁵

Although he later said that he would have stuck by Darrow, Scopes never had to make the choice.⁶⁶ In a clever maneuver, the Tennessee Supreme Court managed to end the embarrassing case without overturning the locally popular law. The antievolution statute only applied to public employees acting in their official capacity, and therefore did not infringe on individual liberty, the court ruled. Scopes “had no right or privilege to serve the state except upon such terms as the state prescribed.” Furthermore, the court added, the law “requires the teaching of nothing,” and therefore “we are not able to see how the prohibition… gives preference to any religious establishment.” Accordingly, three justices—a bare majority—held the statute constitutional; only two of them, however, interpreted it to bar all public school instruction in human evolution. One justice concocted an exemption for theistic evolution out of the statute’s confusing language. Another called the entire law “invalid for uncertainty of meaning.” The court’s fifth member died before the ruling, and his successor took no part in the decision.⁶⁷

After upholding the statute, however, the court overturned Scopes’s conviction on the grounds that the trial judge, rather than the jury, fixed the amount of the fine. Yet Raulston had simply imposed the minimum fine after offering the jury an opportunity to set a higher one. Both parties had accepted this procedure at trial and neither raised it on appeal. That should have settled the issue, but the court used it to reverse the conviction, then urged the attorney general to dismiss the prosecution. “We see nothing to be gained by prolonging the life of this bizarre case,” the court wrote. “On the contrary, we think the peace and dignity of the state… would be better conserved by the entry of a nolle prosequi herein.”⁶⁸ Without comment, Tennessee’s new attorney general complied a day later—which left no conviction for the defense to appeal.

The most widely publicized misdemeanor case in American history had finally come to an end, with neither side claiming victory. The defense immediately cried foul. Malone denounced the ruling as “a subterfuge on the part of the State of Tennessee to prevent the legality of the law under which Scopes was convicted being tested” by the U.S. Supreme Court. “The whole matter is left in an unsettled condition,” Darrow complained. “It will probably require another case to clear up the matter.” Scopes simply dismissed the decision as “a disappointment,” and no other Tennessee teacher ever again stepped forward to challenge the statute.⁶⁹ Supporters of the statute, however, could scarcely hail a ruling that all but directed prosecutors not to enforce the law. “Some public officers,” the Nashville Banner reported, “were of the opinion that the state was ‘fed up’ over the Scopes case, and that no circuit attorney-generals would care to reopen the question by bringing indictments.”⁷⁰ None ever did. The antievolution statute became precisely what Governor Peay predicted when he signed it into law—a largely symbolic act.

Partly as a result of the Scopes trial, the law came to symbolize different things to different people; it became a symbol of pride and regional identity for some Southerners. An Alabaman, for example, wrote to Peay, “The Great Commoner fell at this post maintaining that Tenn. had sense enough to run her own affairs without Yankees from the North to meddle in them.”⁷¹ Shortly after the Tennessee Supreme Court ruling, Maynard Shipley wrote of “the threatened South,” where antievolutionism still constituted “a serious menace.”⁷² By popular referendum, the people of Arkansas enacted the region’s third antievolution statute in 1928. Louisiana soon thereafter joined Texas in barring any mention of evolution from state-approved textbooks. School boards throughout the South imposed local limits on teaching evolution. Subsequent studies suggested that such restrictions enjoyed widespread support among the various groups that comprised southern society.⁷³

At the same time, the tendency of northern evolutionists to blame Southerners for the Scopes trial may have weakened antievolutionism in the North. For example, patrons at New York’s famed Ziegfeld Follies cheered Malone’s returning declaration, “Although we went South, we insisted upon retaining our Northern ideas.” In a typical posttrial comment, one northern journalist linked “the inquisition in Tennessee” to “the South [as] a cultural wilderness.” H. L. Mencken continued to tar and feather the South over the Scopes trial for years, leading Edwin Mims to compare the Baltimore journalist with the Civil War general William Tecumseh Sherman for his treatment of the region. Northerners tended to laugh along with Mencken’s satire and after the Scopes trial displayed little interest in adopting antievolution laws. When one Rhode Island legislator introduced such a proposal in 1927, his bemused colleagues referred it to the Committee on Fish and Game. Even though the antievolution crusade began as a legitimate national movement, with such urban Northerners as Riley and Straton in the lead, it became for the most part a regional phenomena after the Scopes trial. Reporting on the failure of all efforts to repeal the myriad restrictions against teaching evolution in the South, the ACLU attributed it to “stubborn Southern hostility against Northern conceptions of science and faith.”⁷⁴

During the years immediately following the Scopes trial, partisans on both sides battled over its legacy. Darrow, Hays, and Malone lampooned the prosecution in books, articles, and lectures. They made much of Bryan’s alleged concession on the witness stand that the biblical days of creation symbolized long periods of time, Hays claiming that “even for Mr. Bryan our case might have been proved” and Darrow crowing that “Bryan had contradicted his own faith.”⁷⁵ Popular science writers such as Henry Fairfield Osborn assailed the prosecution’s ideas of biology and science education. Several of the defense expert witnesses wrote semipopular books or articles expanding on their trial affidavits. Such accounts leave the distinct impression that Scopes won the case in all but the verdict, which “hillbilly” jurors withheld.

Fundamentalists countered in publications and presentations of their own. Riley wrote a long article in the WFCA’s journal refuting defense arguments from the trial and defending Bryan’s testimony. For example, he explained to his followers, “Imagine a self-respecting attorney… by every conceivable twist and turn trying to get Mr. Bryan to say that ‘God created the world six thousand years ago,’ when the plain statement of Genesis… leaves latitude for millions and even billions of years.”⁷⁶ Darrow’s villainy at trial became the subject of countless fundamentalist sermons. In 1927, the popular antievolution science lecturer Arthur I. Brown answered Osborn’s most famous trial-related article, “The Earth Speaks to Bryan,” with his booklet, “Science Speaks to Osborn.” Other opponents of teaching evolution dissected the defense’s scientific affidavits, apparently on the assumption that these documents represented the case for evolution in the popular mind. These fundamentalists made it sound as if the evolutionists suffered a total rout at Dayton.

So long as the antievolution crusade raged on and partisans battled over the trial’s interpretation, historians hesitated to assess the significance of events at Dayton. The trial slipped into the tail-end of Charles A. Baird’s monumental co-authored survey, The Rise of American Civilization, the final volume of which appeared in 1928. Baird at that time stood atop America’s left-leaning history establishment and rarely passed up a chance to stamp a dialectical interpretation on events. This work identified the trial as a “spectacular battle” in an ongoing “war” between mostly rural fundamentalists and urban modernists but did not present the battle as decisive or the war as resolved. “Among the freethinkers of two continents,” it observed, “the Tennessee case aroused amusement at the expense of the American hinterland, but undisturbed by scorn from such quarters, the Fundamentalists announced that they intended to carry on their campaign.”⁷⁷ The historian Preston William Slosson included two paragraphs on the trial in his pioneering history of the twenties, The Great Crusade and After, yet failed to comment on its significance. “The trial resolved itself into a verbal duel between Darrow the agnostic and Bryan the Fundamentalist,” he wrote, but Bryan died “a martyr in defense of the faith” and “no one, not even Clarence Darrow, was quite big enough to inherit the mantle of Tom Paine or Bob Ingersoll as a popular American champion of anticlericalism.” The account ended with an unanswered question, “What was the actual state of religious faith among the American public?” Although the Scopes trial secured a bit part in American history, it still lacked a decisive role.⁷⁸

As Slosson’s unanswered question suggests, historians at the end of the twenties did not perceive any slowing in the pace of fundamentalist political activism. When that trend became apparent over the next decade, some historians began attributing it to the movement’s alleged defeat at Dayton. As late as 1930, the ACLU and the Science League continued to issue grim bulletins about antievolution activity, however. At most, intellectuals saw the trial as a personal humiliation for Bryan. Both Hays, in 1928, and Darrow, in 1932, took this approach in their autobiographies, and Mencken proclaimed it in his writings. In 1929, two debunking biographies of Bryan presented such a view as history, one asserting that Darrow made “hash” of the Commoner.⁷⁹

None of the works cited suggest that the debunking of Bryan would slow the antievolution crusade, because liberal commentators of the day typically viewed fundamentalists as servile rubes immune to shame. In his highly critical 1931 History of Fundamentalism, for example, Stewart G. Cole ridiculed Bryan’s role in the Scopes trial, yet wrote that it quickened the pace of antievolution activity, especially after Riley, Straton, and others began competing to carry on the Commoner’s work. On balance, early historical reflection on the Scopes trial presented the episode as a sign of the times rather than as a decisive turning point.⁸⁰ At the decade’s end, the legacy of the Scopes trial remained up for grabs.