David Barton Controversy: Gregg Frazer Weighs In on Jefferson and Christianity; Barton Responds

Gregg Frazer is a professor of history at the conservative Master’s College in CA. His book Religious Beliefs of America’s Founders provides a fine historical treatment of the founders and their religious views. Frazer coined the term “theistic rationalism” to describe the religious perspective of many of the founders. On Friday, World Magazine published a short response to David Barton on the subject of Thomas Jefferson’s religious beliefs. It is an important contribution to the ongoing coverage World has provided on the David Barton controversy.

As we did in Getting Jefferson Right, Jefferson does not leave us in the dark about his religious influences. He points to Joseph Priestley and Conyers Middleton as foundations of his beliefs. Both of these men denied the orthodox Christian position. In The Jefferson Lies, Barton does not tell readers about Jefferson’s statement to this effect.

Rather quickly, Barton replied on the World website. His reply seemed to signal that he was going to bow out of the discussion.

Throckmorton’s original assault on my book managed to avoid its major points and instead criticize minor and even obscure facts, and this new attack by Frazer seems to suggest that this “debate” may become a never-ending discussion over less and less. With so many important cultural battles that desperately need our focused attention, it seems a misuse of time and energy to continue arguing over relatively inconsequential points with those who profess to hold the same common Christian values, so I will now resume my efforts attempting to beat back the secularist progressive movement that wrongly invokes Jefferson in their efforts to expunge any presence of faith from the public square.

Shorter Barton: These critics are straining at minutiae so I am going back to more important matters. If evangelical leaders let him get away with this, it will be an effective strategy.  If he can spin all of this as picky detail with no real relevance then he will be able to continue misrepresenting the facts in order to “beat back the secularist agenda.” Inasmuch as evangelicals allow this, we have no claim to provide a moral stance (something many outside the community say has already happened).

With that in mind, I want to thank Marvin Olasky and the folks at World Magazine for keeping this issue before the community.

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  • Zoe Brain

    Inasmuch as evangelicals allow this, we have no claim to provide a moral stance (something many outside the community say has already happened).

    Some say the sun rises in the East too.

    While there are many Evangelicals who are intellectually honest, Evangelical Christianity as it is practiced in the USA today is not. And that is really, really obvious.

    But rather than over-generalising, it’s up to those who are criticising to draw attention to the facts that a) It wasn’t always like this and b) There is an alternative. There are numerous examples of Evangelical Christians who are not dishonest bigots. The two concepts – Evangelical Christianity and Dishonest Bigotry – are distinct. Even opposites – though you wouldn’t know that if you only went by superficial appearances.

  • Lynn David

    It seems for Barton that his god is not in the details.

  • Tom Van Dyke

    Shorter Barton: These critics are straining at minutiae so I am going back to more important matters.

    Good strategy. Looks like he’s been reading the comments sections of somebody’s blog. ;-)

  • Fuzzy

    He who controls the origins mythology, controls the debate.

    Just as science now controls the origins debate, Christian Nationalists have to control the mythos of the man responsible for preventing “A Christian Nation.” If Jefferson can be re-written as a believing Christian, then his Virginia Statute of Religious Freedom, and his ideas on a “Wall of Separation” won’t matter anymore. The goal appears to be to control this aspect of Jefferson, to win the origins debate of our country.

  • Tom Van Dyke

    The day after Jefferson wrote the “wall of separation” letter, he attended religious services held in the US Capitol.

    http://www.heritage.org/research/reports/2006/06/the-mythical-wall-of-separation-how-a-misused-metaphor-changed-church-state-law-policy-and-discourse

    Barton isn’t tilting at bogeymen, you know. The narrative has indeed been seized. He’s just trying to seize it back.

    ______________________________

    The Mythical “Wall of Separation”: How a Misused Metaphor Changed Church–State Law, Policy, and Discourse

    By Daniel L. Dreisbach

    No metaphor in American letters has had a more profound influence on law and policy than Thomas Jefferson’s “wall of separation between church and state.” Today, this figure of speech is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement, and it has become the sacred icon of a strict separationist dogma that champions a secular polity in which religious influences are systematically and coercively stripped from public life.

    In our own time, the judiciary has embraced this figurative phrase as a virtual rule of constitutional law and as the organizing theme of church-state jurisprudence, even though the metaphor is nowhere to be found in the U.S. Constitution. In Everson v. Board of Education (1947), the United States Supreme Court was asked to interpret the First Amendment’s prohibition on laws “respecting an establishment of religion.” “In the words of Jefferson,” the justices famously declared, the First Amendment “was intended to erect ‘a wall of separation between church and State’…[that] must be kept high and impregnable. We could not approve the slightest breach.”

    In the half-century since this landmark ruling, the “wall of separation” has become the locus classicus of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly secular polity. The trope’s continuing influence can be seen in Justice John Paul Stevens’s recent warning that our democracy is threatened “[w]henever we remove a brick from the wall that was designed to separate religion and government.”

    What is the source of this figure of speech, and how has this symbol of strict separation between religion and public life come to dominate church-state law and policy? Of Jefferson’s many celebrated pronouncements, this is one of his most misunderstood and misused. I would like to challenge the conventional, secular myth that Thomas Jefferson, or the constitutional architects, erected a high wall between religion and the civil government.

  • James Ferguson

    Tom, all it takes are readings of the Founding Fathers to see they didn’t view religion in the same way Barton (or it seems you) think they did. They didn’t want religion shaping politics, and Madison especially was very adamant about this. Jefferson believed fully in the freedom of religious practice, and didn’t want a situation like in early American colonial life where religion and state became intertwined and inseparable, hence the Virginia Act for Establishing Religion Freedom, 1786, which he was very proud of. The last thing he wanted was for the Federal government to promote religion, as Barton contends with his claims about distributing Bibles among the Native population,.

    Barton loses on both the short and long arguments, but since he packed his book with endnotes, critics like Warren and Chris have gone after his specific claims, by ferreting out his sources. It may sound “picky” but this is gets to the heart of Barton’s allegations.

  • http://www.patheos.com/blogs/warrenthrockmorton Warren

    Our efforts are only picky to those who are inconvenienced by them. As should be clear now to any objective person, Barton can’t be trusted to get the stories straight. The people who have been relying on his work now have to decide what they are going to do.

  • Boo

    Aleast Barton seems increasingly willing to abandon any pretense of being an actual historian and admit he’s just an out and out culture warrior.

  • Boo

    Tom Van Dyke- if you want religion in the civil government, whose religion should it be?

  • James Ferguson

    Unfortunately, I imagine many of his faithful will cling to his stories, as they seem to need these images of the Founding Fathers to support their belief in a divinely-inspired United States. What these radical evangelists really want seems to be a return to early colonial America — Boston and Jamestown — not the more enlightened America that existed during the time of Washington and Jefferson and Madison.

  • Tom Van Dyke

    Boo, I see a lot of Barton-haters have pretty faulty ideas themselves. All I can do is point out the truth–independently of David Barton. I think he made a huge mistake trying to enlist Jefferson.

    In fact, the problem is that Jefferson is over-cited, his importance overrated. The Virginia Statute for Religious Freedom was more the exception than the rule, and the real lesson of the Founding is that religion was left to the states. In fact Massachusetts had an official state church until 1833!

    Everybody seems to know the Virginia Statute, but nobody seems to know about Massachusetts’ establishment of Congregationalism!

    And this is the problem. The irony is that there are many competent scholars such as Daniel Dreisbach [D.Phil from Oxford, JD from UVirginia] out there affirming the truth about all this, but they’re ignored–only David Barton gets any ink, and only for his errors!

    That’s the one thing that Barton’s thesis is correct about, the whitewashing of our religious heritage.

    As for what the religion of the Founders was, we can say a providential monotheism, a creator-God at that. To this day, 90+% of state Constitutions acknowledge the existence of this deity, often with the wording “Almighty God.”

    http://www.usconstitution.net/states_god.html

    I’m not going to litigate every jog and tittle on Warren’s blog, but I am going to point out that in condemning Barton, it also provides a forum for misinformation from the Barton-hater types. If they’re as honest and committed to historical truth as they hold themselves to be, they’ll be thankful for pointers to Dreisbach and the state constitutions and the like, rather than combative or dismissive.

    ;-)

  • Boo

    Tom Van Dyke- T 14th Amendment applies the Bill of Rights to the states, so it doesn’t matter what Massachusets did in 1833. A one does not have to be a “Barton-hater” to note that the man is horrendously wrong about everything, all the time, always.

    You also didn’t answer my question. I didn’t ask what religion the Founders had, I asked which one the government should endorse.

  • Tom Van Dyke

    Wrong question. I’m a pluralist and an accommodationist, as I believe the Founders were, even including Jefferson. Strict separationism is required by neither the Founders nor the 14th. Let 1000 flowers bloom.

    I can’t do any more than offer alternatives to the strict separationism myth you repeat here except link folks such as Dreisbach above, whose credentials as an historian and as a legal scholar are top-flight. Punking David Barton is not the search for truth, only error. You want to argue, take it up with people like Dreisbach.

    ______________________________

    The Mythical “Wall of Separation”: How a Misused Metaphor Changed Church–State Law, Policy, and Discourse

    By Daniel L. Dreisbach

    No metaphor in American letters has had a more profound influence on law and policy than Thomas Jefferson’s “wall of separation between church and state.” Today, this figure of speech is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement, and it has become the sacred icon of a strict separationist dogma that champions a secular polity in which religious influences are systematically and coercively stripped from public life.

    In our own time, the judiciary has embraced this figurative phrase as a virtual rule of constitutional law and as the organizing theme of church-state jurisprudence, even though the metaphor is nowhere to be found in the U.S. Constitution. In Everson v. Board of Education (1947), the United States Supreme Court was asked to interpret the First Amendment’s prohibition on laws “respecting an establishment of religion.” “In the words of Jefferson,” the justices famously declared, the First Amendment “was intended to erect ‘a wall of separation between church and State’…[that] must be kept high and impregnable. We could not approve the slightest breach.”

    In the half-century since this landmark ruling, the “wall of separation” has become the locus classicus of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly secular polity. The trope’s continuing influence can be seen in Justice John Paul Stevens’s recent warning that our democracy is threatened “[w]henever we remove a brick from the wall that was designed to separate religion and government.”

    What is the source of this figure of speech, and how has this symbol of strict separation between religion and public life come to dominate church-state law and policy? Of Jefferson’s many celebrated pronouncements, this is one of his most misunderstood and misused. I would like to challenge the conventional, secular myth that Thomas Jefferson, or the constitutional architects, erected a high wall between religion and the civil government.

  • http://www.patheos.com/blogs/warrenthrockmorton Warren

    Tom – Sincere people can disagree about the proper role of religion and government. You keep wanting to make the Barton thing about that. It is not. It is primarily about bad history in the name of God.

  • Tom Van Dyke

    It is for you, perhaps, Warren. Not for the people who use you as a cudgel against Barton. The same people use Gregg Frazer’s arguments from normative theology ala John MacArthur, that unless one accepts Jesus as divine, died for our sins, etc., one is not a “real” Christian. Find a Founder with unitarian sympathies, and bingo! we are not a “Christian” nation. [Whatever that means.]

    The game is much bigger than your part in it.

  • Boo

    Tom- so the government should endorse all religions?

  • Tom Van Dyke

    Boo, our civic illiteracy, our knowledge of our own history, is so pathetic that we have no idea what “endorse” and “religion” might mean, especially what they meant to the Founders.

    It’s really interesting.

    Or we just read the 14th Amendment as requiring us to blow it all up. In God We Trust. Not.

  • James Ferguson

    Barton brought it on himself by having the book published, and attempting to sell it off as a piece of history. Barton is using history in the worst sense, to justify his positions on church and state. He’s not the only one to misuse history, nor is this a singularly conservative effort. Stone and Kuznick came out recently with their own polemic, The Untold History of the United States, which warps and/or conflates historic events to justify their interpretation of the United States’ role in the Cold War.

  • Boo

    Tom- can you see how your apparent inability to answer basic questions might be construed as undermining your position?

  • Tom Van Dyke

    Boo, if you phrase the question honestly, I’ll be able to answer.

  • James Ferguson

    Seems you enjoy being elusive, Tom. What’s your stake in all this? Your “defense” of Barton sounds very disingenuous.

  • Tom Van Dyke

    Then you need to read it again, James. It’s quite clear. It’s a qualified defense, that the thesis is valid, despite its admitted flaws. And further, that his critics, when held to the same unforgiving standards, have their own flaws.

    Quis custodiet ipsos custodes?

    If you or anyone else shows some indication of having read and understood the links I offer from reputable scholars, not Barton, although they support his overall argument and thesis, I’ll be happy to discuss them.

    Basically, I argue–and it’s evident here–that anyone who addresses the “separation” question via the rebuttals of David Barton is going to end up less informed than when they started. So, in the meantime, I’ll thank you for avoiding dragging me in on a personal level. Read or don’t read the links, your choice, but if you decline to, then I’m not writing to you or for you, so if it’s OK, let’s just leave it to the links.

    http://www.religion-online.org/showarticle.asp?title=2657

    Book Review: Separation of Church and State.

    By Philip Hamburger. Harvard University Press, 492 pp.

    This book is controversial because its central thesis, that “the First Amendment has been interpreted to limit religion in ways never imagined by the late 18th-century dissenters who demanded constitutional guarantees of religious liberty” and that “the constitutional authority for separation is without historical foundation,” challenges the widely held view that separation is a necessary corollary to disestablishment. It is unsettling because the depth and breadth of Hamburger’s scholarship (he is John Wilson Professor of Law at the University of Chicago) make it impossible for critics to dismiss his arguments as an ideologue’s pining for “Christian America,” or as a case of shrill partisanship.

    More broadly, Hamburger’s intriguing historical account raises a number of important questions about church and state, not merely in the American past but in the present and for the future as well. If an erroneous, and indeed pernicious, metaphor has dominated American jurisprudence and public discourse for years, then correcting that error would yield real-world changes in law, politics and society.

  • Boo

    Tom- should the government endorse all religions?

    Don’t worry, at this stage we both know you’re not going to answer.

  • James Ferguson

    I read your links, and I don’t see how they support your position. Barton’s thesis regarding Jefferson is fundamentally flawed. You can argue that there have been well articulated conservative as well as liberal positions in regard to the separation between church and state, but Barton’s is certainly not one of them. It is poorly crafted piece of agit-prop. Whatever Jefferson’s opinion, the Constitution was largely crafted by Madison who was far less ambiguous when it came to the separation between church and state, as argued in the Federalist Papers. Jefferson’s major role was in the “debate” was in crafting the Virginia Act for Establishing Religious Freedom, which you appear to dismiss as an anomaly. It is pretty clear to me that the last thing Jefferson wanted was a situation like that in the early American colonies and England where the church held primacy in the state. This, after all, is what led to Roger Williams rebellion.

  • James Ferguson

    The fact of the matter is that Barton dances around the issue of church and state by presenting a set of fabricated “lies” that deal more with Jefferson’s character than with his beliefs or attitudes, using mostly secondary sources to support his claims. The “lies” themselves are largely contrived from a wide variety of sources.

    It seems his biggest bone of contention is with Joseph Ellis, one of the few historians he singles out, and here largely over what he believed was Ellis’s attempt to divert attention away from Clinton’s impeachment hearings by jumping all over the published DNA results regarding Jefferson’s paternity of Sally Hemings’ children. For Barton it wasn’t enough that Jefferson was falsely accused, but that he was used as a diversion from Clinton’s much more notorious scandal. It gives you a pretty good idea where Barton is coming from since the Jefferson paternity case had no bearing on the Clinton impeachment hearings and diverted little attention away from tem at the time.

    On another point, he blasts Kramnick and Moore for a book they wrote 15 years ago, entitled The Godless Constitution, as a widely used textbook that presents “sweeping and forceful claims about a supposed lack of faith among the Founding Fathers,” when in actual fact it is a little used textbook that looks at the confluence of religion and politics in shaping the Constitution. But, once again Barton is less interested in exploring the subject than he is in creating “straw men” for what he perceives to be a conspiracy to diminish religion in today’s secular age.

    It doesn’t matter that more than 70% of Americans prescribe to one religious faith or another and consider themselves Christian, or that politicians know full well of the primacy religion has in shaping fundamental issues such as the battle over abortion, and use very guarded language when addressing these thorny subjects. Barton uses Jefferson as some sort of rallying point for his belief that the Founding Fathers would have stood behind him in his crusade against what he perceives as the secularization of American society. But, out of whatever fears he has in addressing the subject straight out, he chooses to dances around it like many of these tele-evangelists do these days. Disingenuous to say the least.

  • Tom Van Dyke

    Barton uses Jefferson as some sort of rallying point for his belief that the Founding Fathers would have stood behind him in his crusade against what he perceives as the secularization of American society.

    Aha.

  • James Ferguson

    What he believes being the key phrase here. It has nothing to do with a scholarly study of the first amendment.

  • stephen

    James, in his book The Swerve Stephen Greenblatt is very interesting about Jefferson’s love of classical authors. It seems he owned 5 copies in Latin of Lucretius’ On the Nature of Things along with translations into English, Italian, and French. From this book he drew the phrase central to Epicurean teaching that the proper purpose of man is ‘Life, Liberty, and the Pursuit of Pleasure’ which, when he came to draft the constitution became ‘Life, Liberty, and the Pursuit of Happiness,’ pleasure being too radical a concept for the new nation.

    I’ve never found any trace of the cramped provincial parson Barton imagines Jefferson to have been in the real man’s life and work. Barton’s Jefferson is as much a fiction as the Mozart of Amadeus.

  • Bill Fortenberry

    Frazer’s position in this article is typical of his work. In his eagerness to prove Barton wrong, he overstates his case and ends up looking more like a zealot than a historian. Barton’s position does have its difficulties, but Frazer’s position basically amounts to a claim that Jefferson did not speak of Christianity in the same way that Frazer would have spoken of Christianity if he had been Jefferson. Consequently, Jefferson must not have been a Christian. I’ve discussed this flaw with Gregg in this thread: http://americancreation.blogspot.com/2013/02/frazer-on-barton-jefferson-christianity.html

    This type of personal comparison abounds in Frazer’s book. Anyone from the founding era who claimed to be a Christian but did not agree perfectly with Frazer’s view of particular Christian doctrines must not have been a Christian but rather a Theistic Rationalist regardless of any claims that they may have made to the contrary. The interesting thing about Frazer’s method is that it can be used to prove that he himself is a Theistic Rationalist and not a Christian as I point out in my article, “The Founders and the Myth of Theistic Rationalism” which is available at this link: http://www.increasinglearning.com/theistic-rationalism.html

    • http://www.patheos.com/blogs/warrenthrockmorton Warren

      Bill – Whatever one calls Jefferson (theistic rationalist, skeptic, Unitarian), I have seen no evidence which would allow one to make the case that he held orthodox views after the 1760s. I will look at your article, but having studied the same materials as Gregg, I can’t find much fault in his reply to Barton.

      On my way out for awhile so I won’t be able to make a detailed reply. However, my interest is primarily Jefferson in this discussion. And in examining Jefferson’s beliefs it is clear that he considered reason to be the superior means of determining truth. Jefferson told Peter Carr in 1787:

      Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear. You will naturally examine first, the religion of your own country. Read the Bible, then as you would read Livy or Tacitus. The facts which are within the ordinary course of nature, you will believe on the authority of the writer, as you do those of the same kind in Livy & Tacitus. The testimony of the writer weighs in their favor, in one scale, and their not being against the laws of nature, does not weigh against them. But those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces. Here you must recur to the pretensions of the writer to inspiration from God. Examine upon what evidence his pretensions are founded, and whether that evidence is so strong, as that its falsehood would be more improbable than a change in the laws of nature, in the case he relates. For example, in the book of Joshua, we are told, the sun stood still several hours. Were we to read that fact in Livy or Tacitus, we should class it with their showers of blood, speaking of statues, beasts, &c. But it is said, that the writer of that book was inspired. Examine, therefore, candidly, what evidence there is of his having been inspired. The pretension is entitled to your inquiry, because millions believe it. On the other hand, you are astronomer enough to know how contrary it is to the law of nature that a body revolving on its axis, as the earth does, should have stopped, should not, by that sudden stoppage, have prostrated animals, trees, buildings, and should after a certain time gave resumed its revolution, & that without a second general prostration. Is this arrest of the earth’s motion, or the evidence which affirms it, most within the law of probabilities?

      Jefferson’ youthful commonplace book is filled with quotes from Bolingbroke, none of which affirm supernatural or orthodox Christianity. Anyone making a case for Jefferson as an orthodox Christian must ignore a lot to do so.

      RE: Barton and the Anglican gentleman designation. This is meaningless and a real change of the subject from his book. Is there some accepted definition of Anglican gentleman? Were Anglican gentlemen all secretly heterodox while socially attached to the church? Perhaps they were but simply calling Jefferson an Anglican gentleman early in his life does nothing to accurately characterize his religious beliefs. Rather, it is an effort to gloss over the inaccurate presentation of Jefferson in The Jefferson Lies.

  • Patrocles

    But no orthodox Christian – except a little fundamentalist minority – would nowadays maintain that the sun stood still in Joshua’s times.

    A more relevant question would be if Jefferson believed in the resurrection of Christ. If he didn’t believe in vicarious suffering, redemption and resurrection, I agree that he didn’t adhere to orthodox Christianity.

  • Bill Fortenberry

    There is nothing unchristian about recognizing reason as a superior means of determining truth. As I point out in my article, this is true of nearly every Christian who has ever lived.

  • http://www.patheos.com/blogs/warrenthrockmorton Warren

    Bill – I don’t have time to debate that, but I don’t think most evangelical theologians would agree with you, especially those from the reformed tradition (man’s reason is fallen in their view, Jefferson obviously did not agree calling Calvin a worshiper of a false god).

    However, it is certain that if reason leads you to deny the trinity and deity of Christ, you are not an orthodox Christian. I am at a loss to understand how anyone can read Jefferson’s syllabus, letters to Priestley, praise for Priestley, etc and come away with any other conclusion that Jefferson denies orthodox doctrine.

  • Tom Van Dyke

    What he believes being the key phrase here. It has nothing to do with a scholarly study of the first amendment.

    Then you didn’t read the linked article by Daniel Dreisbach, James. Try again.

    http://www.heritage.org/research/reports/2006/06/the-mythical-wall-of-separation-how-a-misused-metaphor-changed-church-state-law-policy-and-discourse

    Justice Hugo Black’s majority opinion in

    http://en.wikipedia.org/wiki/Everson_v._Board_of_Education

    hinges on his interpretation of Jefferson.

    “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

    That Jefferson himself kept the wall neither high or impregnable is Barton’s thesis, and he manages to argue it validly despite his [numerous and admitted] errors. That those parts that Barton gets right must be mentioned alongside the errors for him to get a fair hearing. So far, they are not.

  • Tom Van Dyke

    Barton and the Anglican gentleman designation. This is meaningless and a real change of the subject from his book.

    I’d bet he got that one from well-respected historian Mary V. Thompson, who said something similar about Washington, whose affirmations of orthodox Christianity [if any] are not on record.

  • James Ferguson

    Jefferson is on record in stating his Deist and later Unitarian beliefs. He did not believe in the miraculous nature of Jesus or the Holy Trinity. That pretty much scotches any notion of he being an Orthodox Christian. He actually felt that Unitarianism would one day overshadow the other religions in America, but then this was before the Second Awakening, which provided the ferment for modern-day Evangelicalism.

    As for the First amendment, Tom, it specifically states that Congress shall make no law respecting establishment of a religion. In other words, no state religion. One can argue both ways in terms of separation of church of state, but in reading the Federalist Papers, it is pretty clear this is what Madison had in mind, and was fully supported by Hamilton in this regard. Jefferson didn’t have much of a hand in the Federal Constitution, but the Virginia State Constitution, which you dismiss, he did very adamantly state that government would play no role in establishing religion or compelling citizens to abide by any one religion. This was very much in response to the role religion played in colonial governments and in the UK.

    If any conclusions can be drawn it is that Jefferson believed in religious tolerance. Whether he imagined the secular state like we have today is anyone’s guess, but interpretations, like the Constitution itself, have evolved over the years as society itself has become increasingly more secular.

    This is what upsets Barton most, so like other polemicists, he goes back and tries to make a case that the Founding Fathers supported his belief in a religious state. He also singles out Washington in another book. He even goes further to say that Jefferson imagined UVA as a faith-based university, not a secular one. It was probably neither one nor the other that Jefferson imagined, but he certainly didn’t mean it in the same way Oral Roberts Univ. was established, which Barton got his BA in religious education.

  • Doug Indeap

    Tom,

    The primary flaw in Barton’s, and perhaps your, argument that the Supreme Court erred in Everson by misinterpreting Jefferson’s letter to the Danbury Baptists is the supposition–or misrepresentation–that the Court’s decision hinges on its reading of Jefferson’s letter and its now famous phrase “wall of separation of church and state”–as if that was the only or primary basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is simply wrong.

    Madison confirmed that he understood the Constitution to “[s]trongly guard[] . . . the separation between Religion and Government.” (Madison, Detached Memoranda (~1817).) He made plain, too, that it guards against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    Moreover, Madison was of the view that the Constitution as originally adopted separated government and religion and a Bill of Rights was not needed to confirm as much. Why? Much as the founders did not simply say in so many words that there should be separation of powers and checks and balances, rather they actually separated the powers of government among three branches and established checks and balances, they did not merely say there should be separation of church and state, rather, they actually separated them. They did so by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    As for whether the metaphorical wall of separation should be high and impregnable, Madison also touched on just this point in his Detached Memoranda. He not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

    In its jurisprudence, the Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

  • Bill Fortenberry

    After reading the Everson decision, it seems that I must agree with Tom on this point. The Court’s ruling on the separation of church and state was based primarily on a statement from the Court of Appeals of South Carolina in the case of Harmon v. Dreher, and Jefferson’s statement regarding the wall of separation was provided to lend credence to this. Moreover, even when the Court cited Madison’s role in forming the First Amendment, it was quick to claim that Jefferson also played a leading role in its drafting and adoption.

    The most interesting thing about the Everson decision, however, is the irony that the Virginia Bill for Religious Liberty which the Court cites with great approval would actually be in violation of the Court’s decision if it were passed today. According to the Court:

    The “establishment of religion” clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which … prefer one religion over another.

    The Virginia Bill for Religious Liberty, however, grants specific preference for the Christian religion in its opening statement of:

    Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.

    According to this statute, the freedom of religion is itself a uniquely Christian doctrine, and thus, by the reasoning of the Everson Court, this freedom should not be accepted in our nation. In fact, we could carry the argument even further and show that religious freedom is not just a Christian doctrine in general but, particularly, a Baptist doctrine which was introduced into England (and from thence into America) by the Baptist minister Thomas Helwys in his 1611 book A Short Declaration of the Mystery of Iniquity. As far as I’ve been able to determine, this book contains the first argument for religious freedom ever recorded in the English language. Here is a brief excerpt:

    “And we bow ourselves to the earth before our lord the king in greatest humbleness, beseeching the king to judge righteous judgement herein, whether there be so unjust a thing and of so great cruel tyranny under the sun as to force men’s consciences in their religion to God, seeing that if they err, they must pay the price of their transgressions with the loss of their souls. Oh, let the king judge is it not most equal that men should choose their religion themselves, seeing they only must stand themselves before the judgement seat of God to answer for themselves, when it shall be no excuse for them to say we were commanded or compelled to be of this religion by the king or by them that had authority from him? And let our lord the king that is a man of knowledge yet further consider that if the king should by his power bring his people to the truth, and they walk in the truth and die in the profession of it in obedience to the king’s power, either for fear or love, shall they be saved? The king knows they shall not. But they that obey the truth in love, whoom the love of God constrains, their obedience only shall be acceptable to God. (I Corinthians 13) Thus may our lord the king see that by his kingly power he cannot cause or make men bring an acceptable sacrifice to God. And will the king make men (whether they will or no) bring an unacceptable sacrifice to God? And shall the king herein think he does please God? God forbid. If the king will please God in such service, then must he seek to ‘convert sinners from going astray,’ (James 5:20) ‘and turn men to righteousness,’ (Daniel 12:3) not with his sword of justice but ‘by the foolishness of preaching.’ For that is the means whereby God has appointed to save them that believe. (I Corinthians 1:21, 27) … And let the king call to mind that which no doubt the king has often read in the Gospel According to Luke (9:52, 56), that when the Samaritans would not receive Christ, and that his disciples said, ‘Will you that we command fire to come down from heaven and consume them,’ Jesus rebuked them and said, ‘You know not of what spirit you are. The Son of Man is not come to destroy men’s lives but to save them.’ Whereby the king does see that Christ will have no man’s life touched for his cause. If the Samaritans will not receive him, he passes them by. If the Gadarenes pray him to depart, he leaves them. If any refuse to receive his disciples, he only bids them ‘shake off the dust of their feet for a witness against them.’ Here is no sword of justice at all required or permitted to smite any for refusing Christ … Let not our lord the king suffer this sword to be used to rule and keep in obedience the people of God and of the king to the laws, statutes, and ordinances of Christ, which appertain to the well-governing and ruling of the kingdom of Christ, which is heavenly and endures forever, the sword of whose kingdom is spiritual, by the power of which sword only Christ’s subjects are to be ruled and kept in obedience to himself, by the which sword our lord the king must be kept in obedience himself, if he be a disciple of Christ and subject of Christ’s kingdom. And this takes away (without gainsaying) all the kingly power and authority of our lord the king in the kingdom of Christ. For he cannot be both a king and a subject in one and the same kingdom.”

    If I had the money to spend, I would love the opportunity to sue federal government for violating my religious liberty by passing such an overtly Christian law as the First Amendment. I’m certain that I would lose, but it would be very interesting to see how the Court would handle its own contradictions.

    ____________________

    Source: Helwys, Thomas, A Short Declaration of the Mystery of Iniquity, Mercer University Press, GA, 1998, pg 37-38 (http://books.google.com/books?id=_fGP4RgBUQYC&lpg=PP1&pg=PA37#v=onepage&q&f=false)

  • Tom Van Dyke

    Jefferson is on record in stating his Deist and later Unitarian beliefs. He did not believe in the miraculous nature of Jesus or the Holy Trinity. That pretty much scotches any notion of he being an Orthodox Christian. </i.

    Yes, we know, James. Everybody knows. Barton argues those [dis]beliefs became more pronounced in the long post-presidential [1809-1826] years. Although I don't agree that Jefferson was ever orthodox, his vociferous anti-Trinitarianism doesn’t surface until he leaves public life. [Which is an important distinction, the Jefferson in public life from the blatherings of the retired one.][John Adams, double.]

    Examine Jefferson’s letter to his friend Derioux in 1788, and you’ll see a sincere and humble doubt about the Trinity; catch Jefferson later in life and he spouts theological dictums like a pope. Barton has an interesting observation here, unfortunately buried under the project to bury him. Feh.

    but in reading the Federalist Papers, it is pretty clear this is what Madison had in mind

    But Madison lost, as we see on the congressional chaplain issue. As legal scholar Philip Hamburger [iirc] points out, in Supreme Court decisions citing the Founders, it’s invariably Jefferson and Madison to the exclusion of all others. This emphasis on Madison and Jefferson on this issue is misplaced. They did not represent the majority view.

  • Tom Van Dyke

    Formidable as usual, Mr. Forten. See also Sam Adam’s “Rights of the Colonists” where he adopts religious toleration as Christian principle [and Locke clearly as a Christian thinker].

    “In regard to religion, mutual toleration in the different professions thereof is what all good and candid minds in all ages have ever practised, and, both by precept and example, inculcated on mankind. And it is now generally agreed among Christians that this spirit of toleration, in the fullest extent consistent with the being of civil society, is the chief characteristical mark of the Church. Insomuch that Mr. Locke has asserted and proved, beyond the possibility of contradiction on any solid ground, that such toleration ought to be extended to all whose doctrines are not subversive of society.”

    ________

    To Mr. Indeap, I’ll hide behind Mr. F’s skirts and also add the Madison’s personal musings on the Constitution have absolutely zero force, which he himself would admit:

    “”It is to be the assent and ratification of the several States, derived from the supreme authority in each State — the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.”

    “As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”

    Did you know that Madison refused to publish his now-famous notes about debates at the Constitutional Convention for just this reason? True story.

  • Doug Indeap

    Bill,

    A careful reading of Everson reveals that the Court based its interpretation of the First Amendment primarily on its “review of the background and environment of the period in which that constitutional language was fashioned and adopted” (330 U.S. 1, 8), extending over seven pages (330 U.S. at 8-15).

    Near the end of this discussion, the Court turned to the 14th Amendment issue and observed that the meaning and scope of the First Amendment “in light of its history and the evils it was designed forever to suppress” have been elaborated by several Supreme Court decisions rendered before the Court applied the Amendment to the states by the 14th Amendment. (330 U.S. at 14-15.) Noting that “[t]he broad meaning given the Amendment by these earlier cases had been accepted by [the] Court in its decisions concerning an individual’s religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom,” the Court stated that “[t]here is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.” (330 U.S. at 15.) The Court then quoted Harmon v. Dreher merely to summarize “[t]he interrelation of these complementary clauses,” and thereby justify application of the establishment clause to the states through the 14th Amendment as well. The Court did not base its interpretation of the First Amendment to separate church and state on Harmon v. Dreher at all, let alone primarily.

    Again, it was only after all of this discussion of the First Amendment’s history and the Court’s prior decisions interpreting it that the Court stated its conclusion about what the establishment clause means with respect to both the federal and state governments. (330 U.S. at 15-16.) And it was only after stating its conclusion that it added: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.”

    That’s it, the Court made one brief reference to Jefferson’s letter after it stated it conclusion and explained its reasons at length. That brief reference, though, has been treated by Barton and others as the sum and substance of the Court’s reasoning.

  • Tom Van Dyke

    That brief reference, though, has been treated by Barton and others as the sum and substance of the Court’s reasoning.

    A careful reading of Everson reveals that the Court based its interpretation of the First Amendment primarily on its “review of the background and environment of the period in which that constitutional language was fashioned and adopted” (330 U.S. 1, 8), extending over seven pages (330 U.S. at 8-15).

    https://www.claremont.org/publications/crb/id.916/article_detail.asp

    Regardless, its review was faulty. Again the quibble of Everson,/i> itself misses the forest for the trees. The “separation of church and state” is on the lips of every anti-religionist although it’s not in the Constitution.

    “Opinions of the founding generation were scattered all across the spectrum on the question of the assistance government could give religion. Consider the Baptists, the most ardent separationists in the Founding Era. Some Baptists in Massachusetts and Maryland actually favored selective state financial subsidies for churches; others, while disapproving financial support, encouraged the state to print and distribute bibles; Virginia Baptists opposed both measures but were happy to accept public accommodations for church services. Presbyterians were divided over state financial assistance to churches as were political leaders in virtually every state. Statesmen like George Washington changed their mind on the issue. James Madison participated intermittently in public religious acts for 30 years, i.e., in issuing religious proclamations, which in the privacy of retirement he deplored. Jefferson permitted church services to be held in federal office buildings but was accused of hypocrisy for doing so. “

  • http://www.patheos.com/blogs/warrenthrockmorton Warren

    The rest of the Claremont article by James Hutson reads:

    Confronted by opinions so diverse and problematic, the best scholarship can be of only limited assistance in supplying the “correct” answer about the framers’ precise intentions regarding government assistance to religion—a painful conclusion for a supporter of the “jurisprudence of original intent.” Yet, according to a Massachusetts commentator in 1780, the meaning of the term, establishment of religion, was even then “prodigiously obscure.” If so, do today’s judges not deserve a degree of sympathy as they try to tease out the intentions of the drafters and ratifiers of the First Amendment?

    Dreisbach’s superb book, and Hamburger’s as well, pierce the fog to this extent. They inform us that, if there is no “right” answer about how far the founding generation would have permitted government to go in assisting religion, there is indisputably a wrong one: the radical, unprecedented divorce of church from state that the Court has decreed since 1947.

    Worded differently this is very close to the position we take in Getting Jefferson Right. The mentality of WWJD (What would Jefferson do?) on church and state is misguided and indicates the faulty thinking of those who talk about “the founders” as if they all thought alike.

    Good people can differ on what the First Amendment prevents and allows. Where I first agree with Hutson is that there is no clear right answer which derives from an exposition of the founding era. Then I disagree with him when he says that there has been a divorce of church and state since 1947 and that if there was, it would be clearly the wrong answer.

    It seems inconsistent to me to assert that the intent of the framers is practically inscrutable but then suggest there is a wrong answer, especially one which has seemed reasonable to so many of our best legal minds.

  • Tom Van Dyke

    Worded differently this is very close to the position we take in Getting Jefferson Right.

    If one can show that even Jefferson wouldn’t have supported Everson, then it’s not quite the coin-flip you might make it.

    To swoop out of nowhere in 1947 with a brand-new constitutional interpretation is the problem, though, upturning a century-and-a-half of custom and practice. For that reason alone Dreisbach and Hamburger argue Everson was wrongly decided [and you disagree], using a new interpretation of the Founders to ban that which was permissible.

    Not only reactionary, but decidedly illiberal. the Constitution doesn’t call for us to be a religious nation, but it doesn’t forbid it either. hence Everson’s groundbreaking oppressiveness.

    But I’m glad you read the Hutson article. And Philip Hamburger is even more interesting.

    Separation of Church and State

    Author : Philip Hamburger

    Publisher : Harvard University Press

    In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.

    Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life.

    Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation.

    Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American religious liberty was thus redefined and even transformed. In the process, the First Amendment was often used as an instrument of intolerance and discrimination.

  • Doug Indeap

    Tom,

    In questioning what to make of Madison’s statements and the actions of other founders, you raise the large and complex subject of how courts interpret positive law and how the “intent” of the lawmakers figures in.

    Courts commonly interpret the language of statutes and the Constitution in stages of analysis—all aimed at discerning and implementing the “intent” of the language. First is the “plain meaning” rule. If the meaning of the words is plain, the courts leave it at that. Sometimes, though, (and this is particularly so of constitutional provisions) a simple literal reading would fall short of honoring and implementing the provision’s intent. So, courts resort to a second type of analysis, e.g., reviewing a provision’s legislative history or its relationship to other provisions, in order to determine and implement the underlying intent. Sometimes, such efforts shed little light, e.g., when the legislative history is spare or silent or ambiguous, and courts turn to a third type of analysis in which they seek to determine the “function” or “purpose” of a provision and then apply the provision in various factual situations so as to serve that function or purpose.

    While we and courts speak of ascertaining the “intent” of the First Amendment, actually doing so in any precise sense is problematic for many reasons, not the least of which is we are speaking of the intent not of a single person or even a single legislative body, but rather of all who participated in drafting and ratifying the Amendment. They were, of course, not all of the same mind. Practicality leads us to seek evidence of this collective intent from those most central to the process who remain most readily accessible to us today, e.g., those in Congress who worked and spoke most on the subject, at least on the record. It is important also to recognize that in some provisions the founders spoke in general, even cryptic terms (as commonly is necessary to achieve political agreement) to establish general principles, well aware that future generations would necessarily determine the full meaning and effect of those principles. In interpreting the Amendment, we strive to honor the “intent” of the founders as best we can discern it, knowing that such intent is in one sense real and in another sense a legal fiction and that we necessarily draw on other aids in that effort, including our understanding of the functions of the Amendment’s principles in our scheme of government and how they are best applied to serve those functions in modern circumstances.

    As one would expect, moreover, the available evidence does not all point in the same direction. For instance, while Washington offered Thanksgiving proclamations, seemingly seeing no problem in that, Jefferson refrained from issuing any such proclamations for the very reason he thought the Constitution precluded it. Madison too preferred not to issue any such proclamations, but upon being requested by Congress to do so, reluctantly issued one, though taking pains to word it so as merely to encourage those so inclined to celebrate the day. He later almost sheepishly acknowledged that had been a mistake. Also, Congress appointed chaplains for the two houses of the legislature and for the army and navy. This evidence can be seen in at least two ways. On one hand, it can be seen as evidence that the founders considered those actions to conform to the Constitution, thus indicating they did not intend the Constitution to prevent the government from taking actions of that sort with respect to religion. On the other hand, it can be seen, as Madison says, as simply examples of early mistakes by Congress and the Executive, where they failed to conform to the Constitution. Mistakes of that sort are hardly unexpected or unusual. Recall that Congress made two other similar mistakes during Madison’s presidency, resulting in two vetoes of bills. The government has made many such mistakes during our history, and continues to make them to this day.

    In any event, the very fact that evidence and arguments can be advanced in support of both sides of issues like this is one of the reasons we have courts and call on them to resolve such issues. In this instance, the Supreme Court has done just that–decisively, authoritatively, and, in most important respects, unanimously. The Court’s rulings confirming the Constitution’s separation of church and state have long since become integral to the law and social fabric of our nation–not the sort of decisions to be overruled lightly. While I think the vast preponderance of evidence reveals the founders intended some measure of separation of religion and the federal government, I recognize that some evidence points the other way. In light of the available evidence, though, at the very least, it is ridiculous to say, as Barton does, that separation of church and state is a myth that the Supreme Court just made up in modern times.

  • ken

    Doug Indeap says:

    February 24, 2013 at 6:45 pm

    “That’s it, the Court made one brief reference to Jefferson’s letter after it stated it conclusion and explained its reasons at length. ”

    In my reading of the case, I would say the Court’s reference to Jefferson was simply to give him credit for coining the term: “Separation of church and state”, not an attempt to use him as an authority for the Court’s decision.

  • Tom Van Dyke

    Doug, per the Madison quote above, I’m not an “original intent” guy. As Madison note, the Constitution receives whatever authority it has from its ratifiers.

    Therefore “original meaning,” what they understood themselves to be ratifying, and “expected application”—the contemporaneous [failed] attempt to ratify the anti-Catholic

    http://en.wikipedia.org/wiki/Blaine_Amendment

    shows they didn’t expect the Fourteenth to demand strict separationism—are the operative dynamics of what I consider a valid “originalism.”

    As for Madison and chaplains and proclamations, at some point custom and practice become a component of the understanding of the law as well. For the Supreme Court to swoop in 150 years later and decree that the Constitution demands strict separationism is the “mistake,” not Madison’s.

    I recognize that some evidence points the other way. In light of the available evidence, though, at the very least, it is ridiculous to say, as Barton does, that separation of church and state is a myth that the Supreme Court just made up in modern times.

    I’d have to see direct quotes; we cannot debate paraphrase and hearsay. When he refers to the “myth” of separation, a charitable reading demands we consider it a term of art. Even you and I seem to agree that Justice Black’s absolutist decree that

    “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

    is meant to be taken more literally that Barton’s book title.

    And FTR, Everson isn’t quite set in stone yet. [Or more specifically the "Lemon Test" of Lemon v. Kurtzman. ] Jefferson and the other Founders to a man [even Paine] would agree that religion itself serves a secular purpose!

    “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.”—GWash, Farewell Address

  • Doug Indeap

    Tom,

    I’m not sure what to make of your claim not to be an original-intent guy, while at the same time pointing to Madison’s statement that the Constitution receives its authority from its ratifiers, i.e., the people acting through their states. Those are two different subjects. It is one thing to acknowledge that the Constitution derives its authority from the people (“We the people . . . do ordain” and all). It is quite another to ascertain the meaning of the Constitution’s various provisions. It is the latter that I’m talking about when I describe how courts interpret the Constitution.

    While the “ratifiers” are among the founders whose intent informs our understanding of the Constitution, there is no reason to limit our review of historical evidence to only that subset of founders.

    Your comment about the 14th Amendment seemingly invites me to embark on a similar exercise of reviewing the historical evidence pertinent to understanding that Amendment, but as that too is a large subject, I’ll defer it to another day.

    With respect to the chaplains and proclamations, the Supreme Court has done just as you advocate and has upheld those actions on the basis of custom and practice even though, as Madison observed, they don’t really conform to the general principle of the Constitution. Madison’s point was to recognize those items as exceptions to the general principle, rather than as precedents illustrating what the general principle should be.

    As for charitably reading Barton to refer to the “myth” of separation as a “term of art,” I suppose I can only say: Huh? What soft focus meaning do you suppose it has as a “term of art”? And what has Barton ever said that would suggest that he means the term that way?

  • Hughuenot

    The sun does rise in the east, and Barton is full of hooey.


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