It’s been quite a while since I posted one of my nice long history posts. After a several year break from my history writing I’ve started writing a new book, and while I’m working on that decided to post a chapter from my last book, Liars For Jesus: The Religious Right’s Alternate Version of American History, Volume 2.
In this chapter I show the mental gymnastics that Christian Nationalist pseudo-historian goes through to find not just one — not just two — but an astounding seven alleged references to religion in our godless Constitution.
The Constitution’s Seven References to Religion?
If you ask any real historian how many references to religion there are in the Constitution, they’d either say one – the “no religious test” for public office clause in Article 6 – or two, if they are including the Bill of Rights and the First Amendment. But if you ask pseudo-historian David Barton the same question, you get a completely different answer. According to Barton, there are seven.
During his May 4, 2011, appearance on The Daily Show, Barton was asked by Jon Stewart why the founders, if they had wanted religion in the Constitution, wouldn’t have explicitly mentioned religion in the Constitution. This was Barton’s response:
But there are seven references in the Constitution to religion, whether it be Article 7 – and, by the way, the Declaration’s incorporated into the Constitution in Article 7, so that’s four references to God just in Article 7.
So, that’s where Barton gets four of the seven mentions of religion that he claims are in the Constitution. He claims that the Declaration of Independence – with its mentions of a creator, nature’s god, etc. – is incorporated into the Constitution in Article 7, and therefore the Constitution itself contains the four references to God found in the Declaration. But Article 7 of the Constitution makes no mention of the Declaration of Independence.
Article 7, the last article of the Constitution, is a single sentence, and all that sentence says is that the Constitution needed to be ratified by nine states to go into effect:
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
That’s it. That’s all Article 7 says. So, how on earth does David Barton arrive at his claim that the Declaration of Independence is incorporated into the Constitution in Article 7 when Article 7 clearly says nothing about the Declaration of Independence? Well, he claims that what follows Article 7 is part of Article 7. Because Article 7 is the last article of the Constitution, what comes right after it is the attestation statement:
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names,
Barton claims that this closing statement of the whole Constitution is part of Article 7, calling it “the attestation clause of Article 7.” He then claims that because the words “and of the Independence of the United States of America the Twelfth” were added to the date, the Declaration of Independence is part of Article 7, thereby making the Declaration’s references to a creator, nature’s god, etc., part of the Constitution.
On his CD “God in the Constitution,” an audio presentation in which he presents what he claims to be seven reasons that the Constitution is not godless, Barton uses this ridiculous claim that the Constitution’s attestation statement is part of Article 7 as the basis of both his first and his sixth reasons:
The first reason that the Constitution is not a godless document is found in Article 7 of the Constitution. Article 7 is the clause that incorporates the Declaration into the Constitution. The reason that’s significant is even today’s secular critics will acknowledge the Declaration of Independence does mention God four times. It acknowledges God four times, but they point out, now, yeah but that doesn’t matter because we’re under the Constitution, not under the Declaration. That’s a different document. They may have mentioned it in the Declaration, but eleven years later when they did the Constitution they left God completely out. Well, that makes the mistake of assuming that those two documents are to be separated. The founding fathers said it unequivocally it’s not two separate documents to be separated.
He follows this by rattling off a bunch of quotes about the principles in the Declaration of Independence being embodied in the Constitution, and some examples of clauses in the Constitution that he claims were put in the Constitution to prevent specific problems that were listed as grievances against Great Britain in the Declaration. For example, he claims that Article 1, Section 8, Clause 4 – the clause giving Congress the power to establish a uniform rule of naturalization – was put in the Constitution because of the seventh grievance in the Declaration: “He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.” No, giving Congress the power to establish a uniform rule of naturalization was not done for the reasons objected to in the Declaration’s grievance against Great Britain regarding naturalization. It was done so that there would be a “uniform” rule of naturalization throughout the United States, rather than all the individual states having different qualifications for becoming a citizen of the United States.
He then sums all these quotes and examples he just rattled off, none of which even remotely support his claim that the Declaration of Independence is part of the Constitution because the Constitution’s date says “the Independence of the United States of America the Twelfth,” by repeating his claim – and, even more remarkably, adding to that claim that the framers of the Constitution “didn’t look at it as though they had created a new document” – saying:
And significantly, that’s why in the last line of the Constitution, it says this – Article 7 says “Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven.” Now, they closed it and said, we did this document and we all signed the seventeenth day of September in the year of 1787. That’s not where the period is. They have another clause after that: “in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth.” Now, why did they date the Constitution back to the Declaration? They didn’t look at it as though they had created a new document. They said we’ve done this in 1787, and that’s the twelfth year of our independence under the Declaration.
He follows this with a few examples of presidents who added the year “of the independence of the United States” when dating later documents, and then concludes his section on what he claims is the first reason the Constitution isn’t godless by saying:
So, that’s why you never separate the Declaration from the Constitution. And if you understand that, that’s the first reason you can absolutely say, no, the Constitution is not a godless document. Article 7 incorporates the Declaration into the Constitution, and the Declaration acknowledges God four times, and sets forth the value system under which America will operate, which is the laws of nature and of nature’s god. Natural law and the scriptures – that’s acknowledged in the Constitution.
For further proof – as if any proof were even needed at all – that the Constitution’s attestation statement is not a part of the body of the Constitution, just look at the copies of the Constitution signed at the state ratifying conventions. What don’t you find on these copies? The Constitutional Convention’s attestation statement. Why? Because that was the Constitutional Convention’s attestation statement. It was what that convention was attesting to having done. It was the members of that convention witnessing that the Constitution had been done in that convention and signed by that convention’s members on that date.What you find on the copies signed by the state ratifying conventions are the attestation statements of those conventions, attesting to their ratifying of the Constitution and the date on which they ratified it. In other words, the Constitutional Convention’s attestation statement wasn’t ratified by the states as part of the Constitution because it wasn’t part of the Constitution.
For example, as you can clearly see in the images on the following page of the copy of the Constitution signed by New Jersey’s ratifying convention, the Constitution ends with the single sentence that is actually Article 7. This sentence is not followed by the Constitutional Convention’s attestation statement that David Barton ridiculously calls “the attestation clause of Article 7.” It is followed by a statement from the New Jersey ratifying convention stating that convention’s reasons for meeting, quoting the law passed by the New Jersey state legislature authorizing the convention, etc., and ending with the New Jersey convention’s attestation statement, attesting to what the New Jersey convention did, which was to ratify the Constitution on December 18, 1787.
New Jersey and a few of the other states did copy the form of the federal convention’s attestation statement to use as their attestation statements, but other states didn’t. Virginia, for example, simply said, “Done in Convention, this 26th day of June, 1788,” (1) and Connecticut just said, “Done in Convention, this 9th day of January, A.D. 1788.” (2)
In addition to his claim that the attestation statement makes the Declaration of Independence, and therefore the Declaration’s mentions of a god, part of the Constitution, Barton also, of course, includes the usual Christian nationalist claim that the Constitution’s being dated “in the Year of our Lord” makes it a religious document. He makes this his sixth reason on his God in the Constitution CD that the Constitution isn’t godless, incorporating into his version his claim that the date is part of Article 7:
The sixth reason the Constitution’s not godless is actually the attestation clause, which is the seventh article of the Constitution. The attestation clause is the way that they closed the Constitution. Now, in closing it, at the end of the Constitutional Convention, as mentioned earlier when we were talking about the Declaration, they said, we have done this in the year of our lord 1787. Now, when you look at that phrase “in the year of our lord” – I went back and looked at lots of other government documents from that period, and it was really common to say ‘we’ve done this in the year 1787.’ Some states like Massachusetts, New Hampshire, a few others would say ‘we’ve done this in the year of the lord 1787,’ but the Constitution did it different from all the states. It said ‘we’ve done it in the year of our lord 1787.’ They personalized it. They didn’t use that form in some of the states that just used the year. They didn’t use the form in a few of the states that said ’in the year of the lord.’ They used a form that said ‘in the year of our lord.’ ...
... So, the attestation clause, which is the seventh article of the Constitution, is the sixth reason that the Constitution is not a godless document.
As you can see, Barton adds something else besides his Article 7 claim to his version of the usual argument that dating the Constitution “in the Year of our Lord” makes it a religious document, claiming that the framers of the Constitution chose to say “our Lord” instead of “the Lord” to personalize this religious statement. This, like Barton’s other claims about the attestation statement, is ridiculous. The far more obvious and likely explanation that they dated the Constitution the way they did – both for the “our Lord” wording and adding that it was the twelfth year of the independence of the United States – is that they were snidely mimicking how Great Britain dated its laws and other official documents. Britain’s conventional form for dating its laws and documents was the month and day, followed by “in the year of our Lord” and the year, and what was customarily added to the date was what year it was in the reign of whatever monarch was in power at the time. For example, the laws passed in a session of Parliament would be dated:
... at the Parliament begun and holden at Westminster, the tenth day of May, in the year of Our Lord 1768, in the eighth year of the reign of Our Sovereign Lord George the Third
This British form of dating laws and documents would obviously have been very familiar to the framers of the Constitution. They had seen it over and over on all the laws that America was subject to when the states were colonies. The idea of making a statement by mimicking this British form, but replacing the year of the monarch’s reign with the year of America’s independence, is the most plausible explanation for why the Constitution was dated the way it was, and, as we’ll get to in a minute, there is another reason that dating the document in this way would have been seen as useful.
Although not for the reasons that Barton claims, the members of the Constitutional Convention actually did put a lot of thought into their attestation statement. In fact, the form of the attestation statement was not set until September 17, 1787, the day the Constitution was signed. But it wasn’t how the date was going to be written they were worried about. Their concern was coming up with an attestation statement that would allow even the delegates who didn’t approve of the Constitution to sign it. They needed to word the attestation statement in such a way that a delegate’s signing it didn’t necessarily mean that that individual delegate personally approved of it, but that they were merely witnessing that the states present at the Convention had approved it.
This is when Benjamin Franklin’s famous September 17, 1787, speech urging all of the delegates to sign the Constitution, whether they completely approved of it or not, was read (Franklin’s speech was read to the Convention by his fellow Pennsylvania delegate James Wilson).
While Franklin’s speech is quite well known, the motion made by Franklin at the end of this speech, and the reason for that motion, is not nearly as well known. That motion was the proposed form of the attestation statement. According to James Madison’s notes of the Convention, at the end Franklin’s speech:
He then moved that the Constitution be signed by the members and offered the following as a convenient form viz. “Done in Convention by the unanimous consent of the States present the 17th. of Sepr. &c – In Witness whereof we have hereunto subscribed our names.”
This ambiguous form had been drawn up by Mr. G[ouvernor] M[orris]. in order to gain the dissenting members, and put into the hands of Docr. Franklin that it might have the better chance of success. (3)
Now, is it possible that James Madison, quickly writing his notes, was just abbreviating what Franklin proposed for the date when he wrote “the 17th. of Sepr. &c,” and that the “&c” was the rest of the form of the date used on the final document. Well, no, because this is also how it was printed in the December 1787 issue of The American Museum, a magazine published by Philadelphia printer Mathew Carey. Since the records of the Convention had not been made public, the only way that Mathew Carey could have printed Franklin’s speech in December 1787 would have been if he was given a copy of it. We know from letters written by Franklin in which he said he was enclosing a copy of the speech that he did make other copies of this speech to distribute outside of the Convention. That he would also have given a copy to Mathew Carey for publication is highly likely, and that copy, like James Madison’s notes, shows that the form of the date, as written by Franklin, was “the 17th. of Sepr. &c.” (4) The form of the date was not the top priority. The much more important thing was finding a way to word the attestation statement that would allow the delegates who did not approve of the Constitution to sign it without their signatures meaning that they personally approved of it – obviously not an easy task. Hugh Williamson, a delegate from North Carolina, even suggested that none of the delegates sign the Constitution itself, and that they all instead just sign the letter that would accompany the Constitution when it was sent to the Continental Congress. (5)
In the end, the “ambiguous form” of the attestation statement, as Madison called it in his notes, did get a few of the dissenting delegates to sign, but not all of them. North Carolina delegate William Blount “had declared that he would not sign, so as to pledge himself in support of the plan, but he was relieved by the form proposed and would without committing himself attest the fact that the plan was the unanimous act of the States in Convention.” (6) Elbridge Gerry of Massachusetts, on the other hand, one of the three delegates who did not sign, said that the “proposed form made no difference with him,” (7) and Edmund Randolph of Virginia, another of the three not to sign, saw “the signing in the proposed form, as the same with signing the Constitution.” (8)
How and why the date ended up being written as it was on the final document is a matter of speculation, as no note is made of it in the records of the Convention, but, as already mentioned, the similarity to the form used by Great Britain to date its laws and documents is obvious. But there was quite likely a bit more to mimicking this form than simply taking a jab at Great Britain.
Knowing the uphill battle they were going to face in getting the states to ratify the Constitution, mimicking the British form, but with the year of the independence of the United States instead of the year of the reign of a monarch, in combination with the emphasis for other reasons on its being the states that were unanimous in approving the Constitution, could very likely have been seen as something that would help in gaining public support for the Constitution by reminding the public of the unanimity of the states in signing the Declaration of Independence. And this idea that the circumstances were similar – that even though there were individuals who had not been in favor of the Declaration, just like there were individuals who were not in favor of the Constitution, in both cases the states, whether in the Congress of 1776 or the Constitutional Convention in 1787, had unanimously approved the document – was, in fact, used by advocates of the Constitution during the ratification debates in the press, as described, and argued against, by anti-federalist writers, such as the one who wrote the following in the Philadelphia newspaper The Freeman’s Journal:
From some of the writings of its friends, it seems probable that this idea sprang from the circumstances of the Declaration of Independence. That measure was carried by a bare majority in some of the states, yet the minority gave way and joined cordially in it. – If there were any similarity between the circumstances of the Declaration of Independence and the adoption of the proposed constitution, this argument would have some weight, but the premises are widely different, and consequently the inference inconclusive. (9)
Now why, if just about every clause in the Constitution directly correlated to a grievance in the Declaration of Independence, and each of these clauses was put into the Constitution to prevent a specific grievance listed in the Declaration, which is what David Barton claims on his God in the Constitution CD, would anyone have argued against the idea of the similar circumstances of the Declaration and the Constitution by saying things like, “Who is he so base, that will peaceably submit to a government that will eventually destroy his sacred rights and privileges?” and “our free republican government into a tyrannical and absolute monarchy,” (10) as the anti-federalist writer just quoted did? And if the framers of the Constitution “didn’t look at it as though they had created a new document,” as Barton also claims, then why did some of them refuse to sign it or need to be talked into signing it by making its attestation statement so ambiguous that their signing it didn’t necessarily mean they approved of it? Did this anti-federalist writer and those dissenting delegates at the Constitutional Convention just not see, like David Barton does, that the Constitution was the same thing as the Declaration of Independence?
So, we now know from Barton’s God in the Constitution CD where he’s getting four of the seven references to religion that he claimed on The Daily Show are in the Constitution – his convoluted and utterly false claim that the Constitution’s attestation statement is part of Article 7, and since the date in that statement says “and of the Independence of the United States” it means that the Declaration of Independence is part of the Constitution, making the Declaration’s four references to a god part of the Constitution. Add to that his sixth reason from his CD – the Constitution being dated “in the year of our Lord” – and we’re up to five.
So, what are the other two references to religion that Barton uses to bring his number up to seven? Well, if you’re thinking the last two must be the two actual references to religion in the Constitution – the “no religious test” clause in Article 6 and religion clauses in the First Amendment – you’d be wrong. Neither of these two actual references to religion are included on Barton’s CD. And this is where the math gets a bit confusing. On his CD, Barton claims not two but three more religious references in the Constitution – Sundays being excepted in the number of days that a president has to return a bill to Congress, the oath clauses, and the Seventh Amendment’s mention of the common law. But adding all three of these to the five we already have would bring the total up to eight, one more than the seven Barton claims. His closing statement at the end of his CD, however, might clear up this discrepancy:
So, next time someone tries to say, “Oh, the Constitution’s a godless document,” just kind of laugh at ‘em and say, “You know, you just really don’t know your own history very well, do you? Here, let me show you seven clauses in the Constitution – internal construction of the Constitution – that shows you the Constitution is not a godless document.”
Apparently, by “internal construction of the Constitution” he must mean that he’s only counting the religious references that he claims are the body of the Constitution, not the amendments, making “Sundays excepted” and the oath clauses the two other things he uses to arrive his total of seven.
Now, even though it doesn’t appear that Barton is including the amendments when coming up with his seven alleged religious references in the Constitution, he does spend quite a bit of time on one of them – the Seventh Amendment. The Seventh Amendment, according to his God in the Constitution CD, is the third reason that the Constitution isn’t godless:
Number three reason the Constitution is not godless is found in the Seventh Amendment to the Constitution – part of the Bill of Rights. And the Seventh Amendment to the Constitution is part of the due process clauses, which is the Fourth through Eighth Amendments, and talks about the individual rights you have in a court of law, and it says that you have the right to bring suit under the common law. The common law is incorporated into the Constitution. One of the means whereby you can have protection, defense, and bring a suit is common law.
Like his claim that the entire Declaration of Independence was made part of the Constitution by the mere mention of the year of the independence of the United States in the date, Barton claims that the mention of the common law in the Seventh Amendment makes the entirety of the common law “directly incorporated in the Constitution.”
This is what the Seventh Amendment says:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
Now, even if you don’t know exactly how the common law came to be referred to in the Seventh Amendment, it’s pretty obvious that it was for one specific reason – the right of trial by jury – and that this can in no way be interpreted as incorporating the entirety of the common law into the Constitution.
All the Seventh Amendment did was define what kinds of cases a jury trial was guaranteed in, and made the common law of England the standard to be used by the federal courts for determining under what circumstances a jury trial was required and the rules by which a jury would be selected if a jury trial was required. Why did they choose the common law of England for this? Because the rules and procedures of the courts in the individual states varied greatly from state to state, but the federal courts needed to have one uniform standard.
The subject of jury trials in civil cases had been raised near the end of the Constitutional Convention, first being brought up on September 12. On September 15, two days before the end of the Convention, South Carolina delegate Charles Pinckney moved that the words “a trial by jury shall be preserved as usual in civil cases” be added to Article 3.11 The difficulty, however, was defining what “as usual” meant. As Nathaniel Gorham of Massachusetts put it: “The constitution of Juries is different in different States and the trial itself is usual in different cases in different States.” (12) Several other delegates voiced the same objection, and the motion failed.
The absence of a guarantee of trial by jury was one of the big objections to the Constitution among the anti-federalists, and was, of course, among the amendments called for by the state ratifying conventions, so the first Congress, when writing the Bill of Rights, had to decide on what rules the federal courts would follow for jury trials – the problem that had caused the Constitutional Convention to abandon the motion to include this guarantee in Article 3 of the Constitution. They couldn’t very well pick one state’s rules for jury trials over the rules of the other states, so they decided to go with the rules of the common law of England. This didn’t incorporate any of the common law itself into the Constitution. It was just about court procedures.
Christian nationalist history revisionists like Barton, however, can’t pass up this reference to the common law in the Seventh Amendment. Why? Because the common law of England is chock full of Christianity and theocratic laws. Some aspects of this subject were already explored in the first volume of Liars For Jesus, but here we’re just going to look specifically at some of the claims made by Barton on his God in the Constitution CD about the common law and the Seventh Amendment.
Barton uses one of his typical tactics for this one. He bombards his listeners with a barrage of quotes and other details (some true and some not) about Christianity’s being part of the common law, none of which have anything whatsoever to do with the Seventh Amendment. But interspersed among this barrage of quotes and other details about Christianity and the common law is the constant repetition – eight times in total – of his claim that the common law was incorporated into the Constitution through the Seventh Amendment.
For example, he quotes two Supreme Court justices, James Wilson and Joseph Story, saying that Christianity is part of the common law. He follows the first one, from James Wilson, by saying:
Now, the common law is directly incorporated in the Constitution. And James Wilson says Christianity is part of the common law.
But it wasn’t the quote from James Wilson that said “the common law is directly incorporated in the Constitution.” All Barton quoted James Wilson as saying was that “Christianity is part of the common law.” (13) Barton just adds, as he does in his commentary about each of the quotes he presents, the claim that he is making about the common law’s being incorporated into the Constitution.
When he quotes Joseph Story, he says:
And now he’s on the Court and he goes through and gives this great commentary on it. And this is what he says about the common law, drawn into the Constitution in the Seventh Amendment to the U.S. Constitution. He says, quote:
“One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law. There never has been a period in which the common law did not recognize Christianity is lying at its foundations.” (14)
Now, that quote from Joseph Story obviously says nothing about the common law’s being incorporated into the Constitution, but Barton introduces it by saying, “this is what he says about the common law, drawn into the Constitution in the Seventh Amendment to the U.S. Constitution,” again planting the idea in the heads of his listeners that he is somehow proving this claim by what he is quoting.
He then repeats this claim again in summing up the two quotes he just used, as if these quotes – neither of which said anything at all about the Constitution or the Seventh Amendment – had proved his claim that the common law, and therefore Christianity, had been made a part of the Constitution through the Seventh Amendment:
Now, there you’ve got these distinguished legal scholars, both on the U.S. Supreme Court saying everybody knows the common law is based on Christianity, and Christianity is the basis of common law. So, when they talk about the common law, which is, again, in the Seventh Amendment of the Constitution – they incorporated that as part of the Constitution – it’s real clear. They knew what they were talking about, and so did courts after that.
That the common law was not, and could never be, part of the laws of the United States was explained in detail by James Madison in a report to the General Assembly of Virginia in January 1800. The reason for Madison’s report was to explain the resolutions of Virginia (written by Madison) and Kentucky (written by Jefferson) against the unconstitutionality of the Alien and Sedition Acts of 1798. In his report, Madison addressed the arguments that had been used to oppose these resolutions. One argument that Madison thought almost too ridiculous to even address was that Congress had the constitutional authority to pass the Sedition Act because the common law was part of the laws of the United States. The following are excerpts from Madison’s response to that argument:
Several attempts have been made to answer this question, which will be examined in their order. The committee will begin with one, which has filled them with equal astonishment and apprehension; and which, they cannot but persuade themselves, must have the same effect on all, who will consider it with coolness and impartiality, and with a reverence for our Constitution, in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the Sedition Act: “that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, “makes a part of the law of these States; in their united and national capacity.”
The novelty, and in the judgment of the committee, the extravagance of this pretension, would have consigned it to the silence, in which they have passed by other arguments, which an extraordinary zeal for the act has drawn into the discussion. But the auspices, under which this innovation presents itself, have constrained the committee to bestow on it an attention, which other considerations might have forbidden....
...If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration....
...If it be understood that the common law is established by the Constitution, it follows that no part of the law can be altered by the legislature; each of the statutes already passed as may be repugnant thereto would be nullified, particularly the “Sedition Act” itself which boasts of being a melioration of the common law; and the whole code with all its incongruities, barbarisms, and bloody maxims would be inviolably saddled on the good people of the United States.
Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration, by the authority of Congress; it then follows, that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of legislation: For to every such object, does some branch or other of the common law extend. The authority of Congress would therefore be no longer under the limitations, marked out in the Constitution. They would be authorized to legislate in all cases whatsoever....
...In the last place, the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country.
...the committee feel the utmost confidence in concluding that the common law never was, nor by any fair construction, ever can be, deemed a law for the American people as one community, and they indulge the strongest expectation that the same conclusion will finally be drawn, by all candid and accurate enquirers into the subject. It is indeed distressing to reflect, that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not in the opinion of the committee be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them. (15)
So, James Madison thought it was completely crazy to think that the framers of the Constitution would have intended “to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law.” And yet this is exactly what David Barton is trying to get his listeners to believe – that the framers of the Bill of Rights, which, of course, included James Madison, intended “in an indirect manner, and by a forced construction of a few phrases” to incorporate the common law into the Constitution through the Seventh Amendment.
And we can also go back to the resolutions of Virginia and Kentucky against the Alien and Sedition Acts to refute one of the other notions that Barton pushes about the Seventh Amendment. As already mentioned, when Barton presents the quote from James Wilson saying that Christianity is part of the common law, he doesn’t stop at working in one of his eight repetitions of his claim that the common law is directly incorporated in the Constitution. He adds something else right after that, saying:
And, by the way, the common law is where it sets forth the general categories of offense. You have rape, you have kidnapping – what they called man stealing – you have burglary, you have murder, you have arson, you have all these different crimes because the Bible makes them all crimes.
Yes, all of these are offenses under the common law. But they are criminal offenses. And just the fact that the common law encompasses the whole gamut of criminal offenses is proof that it could not have been intended to be incorporated into the Constitution. Why? Because the Constitution limited the federal government to having the power to punish only a handful of criminal offenses. As Thomas Jefferson wrote in the Kentucky Resolutions against the Alien and Sedition Acts:
Resolved, that the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the High Seas, and offences against the laws of nations, and no other crimes whatever … (16)
Many other things, of course, have since been made federal crimes by acts of Congress, but to make something a federal crime requires that there be something that gives the federal government jurisdiction over it. For example, the federal government can’t pass a law making all types of robbery federal crimes, but it did have the constitutional authority to make robbing the U.S. mail a federal crime because establishing post offices and post roads is one of the powers of Congress enumerated in Article 1, Section 8. Therefore, keeping the mail at those post offices and on those post roads safe by making robbing the mail a federal crime would clearly fall under the “necessary and proper” clause, which gives Congress the power to “make all laws which shall be necessary and proper for carrying into execution” its enumerated powers.
By “suits at common law,” the Seventh Amendment was referring to civil cases, not criminal cases. This is evident, first of all, by the fact that when the subject of jury trials was brought up at the Constitutional Convention, they were talking specifically about civil cases. When the motion was made by Charles Pinckney that a guarantee of trial by jury be added to Article 3 of the Constitution, the wording proposed was “a trial by jury shall be preserved as usual in civil cases.” And, secondly, the Seventh Amendment assigns a dollar amount – “where the value in controversy shall exceed twenty dollars” – to the cases in which a jury trial is guaranteed. Only in a civil case would someone be seeking monetary damages. So, this is another reason that David Barton’s claim that the Seventh Amendment incorporated the entirety of the common law into the Constitution is ridiculous. The common law included all of the criminal offenses that Barton says were derived from the Bible, but “suits at common law” in the Seventh Amendment wasn’t referring to criminal cases; it was referring to civil cases. But Barton takes this already impossible notion even further, saying:
It’s also significant that when you look at the common law – again, these are the major crime type things that are there – it’s striking that just until recent decades, when you had a common law indictment – in other words, if you’re going to write out a bill of indictment, a grand jury for someone who has committed murder, someone who has done rape, someone who has done arson – your common law indictment – the way you wrote it out – the standard legal form for a common law indictment, until just recent decades, would start this way. It would say: “John Smith, not having the fear of God before his eyes, did willfully commit murder on James A. Jones or whoever.” They would use that phrase – not having the fear of God before his eyes – and that was the standard legal form for common law indictments just until the last few years. No question about it, the common law is built on and incorporates Christianity, and that’s in the Constitution.
The “not having the fear of God before his eyes” language found in indictments was the customary form for indictments in England, going back at least to the early 1500s. The full statement was “not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil.” You can, of course, find plenty of examples of this British form being used in America in colonial times. And, yes, you can also find examples, although not nearly as many, of its continued use after that, just as you can find examples, going all the way back to the early 1800s, of the continued use of this language being criticized, sometimes to the point of being mocked.
In an 1809 case in New York, for example, one of the attorneys, in making the point that if you’re going to accuse someone of using “indirect means” to commit a crime, they need to know what indirect means they’re being accused of using for them to be able to produce evidence that the accusation isn’t true, made the comparison to the impossibility of being able to show evidence that someone wasn’t instigated by the devil and did have the fear of God before their eyes:
But is it enough to put a man to answer on peril of fine, imprisonment, pillory, branding and, infamy, or one, or all of them, to allege that he has used indirect means, and not tell him what means he is accused of using? As well might he be put upon his trial upon the idle, formal allegation that he was instigated by the devil, and had not the fear of God before his eyes, and driven to make out by evidence that he was not instigated by the devil, and that he had the fear of God before his eyes! (17)
But, the use of this “not having the fear of God before his eyes” language in indictments in the United States, or how late it continued to be used, is completely irrelevant to Barton’s claim that the common law was incorporated into the Constitution by the Seventh Amendment. Indictments are only issued in criminal cases, and, as already explained, the Seventh Amendment was referring to civil cases, not criminal cases. And yet Barton concludes from the use of this “not having the fear of God before his eyes” language in indictments: “No question about it, the common law is built on and incorporates Christianity, and that’s in the Constitution.”
Barton then goes “back to the time of the Reformation,” as he so often does, and presents such a load of convoluted mumbo jumbo about everything from the courts of England to the trial of Naboth in the Bible to Foxe’s Book of Martyrs that to untangle it and refute all of it would take another chapter. So, let’s move on to another of Barton’s reasons that the Constitution isn’t godless – a study commonly referred to as the Lutz study – which is Barton’s second reason on his God in the Constitution CD that the Constitution isn’t godless, and the subject of the next chapter of this book.
1. Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 1, (Philadelphia: J.B. Lippincott Company, 1901), 327.
2. Ibid., 321.
3. Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 2, (New Haven, CT: Yale University Press, 1911), 643.
4. The American Museum, vol. 2, (Philadelphia: Mathew Carey, 1789), 568.
5. Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 2, (New Haven, CT: Yale University Press, 1911), 645.
6. Ibid., 646.
7. Ibid., 647.
8. Ibid., 646.
9. Freeman’s Journal; or, the North-American Intelligencer, January 23, 1788, 3.
10. Ibid.
11. Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 2, (New Haven, CT: Yale University Press, 1911), 628.
12. Ibid.
13. Wilson was actually talking about the part of Pennsylvania law that had been adopted from the common law of England, as explained in Liars For Jesus, volume 1.
14. This quote from Joseph Story is not from his Commentaries on the Constitution, as Barton implies. It is also edited by Barton to hide that Story, whom Barton describes as “an early founding father” (although Story was only eight years old when the Constitution was written, turning nine on the day after the Constitutional Convention ended), was disputing in a speech at Harvard University, what Thomas Jefferson, an actual founding father, had written about Christianity and the common law. Barton removed the sentence that came in between the two sentences he quotes, which said: “And, notwithstanding the specious objection of one of our distinguished statesmen, the boast is as true as it is beautiful.” In 1824, a letter from Jefferson to Major John Cartwright made its way into the newspapers. This letter was one of the several letters written by Jefferson in which he included his tracing of the history of the common law, showing that the common law could not have been based on Christianity, since the common law predated Christianity in England, and explaining in great detail how, through a succession of legal opinions, Christianity was only later made a part of the common law. For years after reading this letter, Joseph Story, both publicly and privately, attempted to refute what Jefferson had written. Story’s low opinion of Jefferson is apparent, as can be seen in letters such as his 1830 letter to Judge Samuel Fay, shortly after the publication of the first edition of Jefferson’s writings, in which he wrote: “Have you read Mr. Jefferson’s Works? If not, sit down at once and read his fourth volume. It is the most precious melange of all sorts of scandals you have ever read. It will elevate your opinion of his talents, but lower him in point of principles and morals not a little. His attacks on Christianity are à la mode Voltaire; and singularly bold, and mischievous.”
15. The Virginia Report of 1799-1800: Touching the Alien and Sedition Laws,Together with the Virginia Resolutions of December 21, 1798, (Richmond, VA: J.W. Randolph, 1850), 211-217.
16. Barbara B. Oberg. ed, The Papers of Thomas Jefferson, vol. 30, (Princeton, NJ: Princeton University Press, 2003). 550.
17. Select Cases, Adjudged in the Courts of the State of New York, vol. 1, (New York: Isaac Riley, 1811), 247.