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Barton: Marriage Equality is Unconstitutional

David Barton delivered a delightfully whacky explanation of his position that it would be unconstitutional to allow same-sex marriage. It’s the same argument Alan Keyes likes to make, that since the Declaration of Independence mention’s a creator, anything that their God allegedly disapproves of can’t be made legal. And he throws in some more specific idiocy along the way:

From a constitutional standpoint, you cannot exclude morals. A number of conservative libertarians in recent months have been saying “hey, marriage is not a constitutional issue” … yet it is because Article 7 of the Constitution through the attestation clause incorporates the Declaration [of Independence] into the Constitution.

Uh…what? Here is Article 7 of the Constitution, in its entirety:

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 has absolutely nothing to do with incorporating the Declaration of Independence. Now I’m one of those people who does think the Declaration should be used in constitutional interpretation because it does lay out broad principles about the legitimate actions that may be taken by government, but that certainly does not support Barton’s argument, for reasons I’ll explain later in this post. Now here’s his second bizarre argument:

The Declaration erects the moral standard by talking about the laws of nature and of nature’s god. Marriage has always been defined not only as a law of nature – now, it’s not necessarily in nature, but they called it a natural law that you should be married to one man, one woman because that is what divine law says; the laws of the god who created nature, the law of nature’s god even in the very beginning said one man, one woman, this is good. Jesus reiterated that in Matthew 19 and other places.

So the moral standard, the moral law dictates that marriage is between and man and a woman. That was then incorporated into the Constitution in the Seventh Amendment in what was called the common law. The common law is part of the legal process. And if you look at the common law all the way through time, marriage has been part of the common that. That is why you do not allow bigamy or polygamy or other forms of “igamy” that attack marriage. Marriage is a man and a woman as part of the common law that’s part of the Constitution.

Another howler. Here’s what he’s talking about. The 7th Amendment does mention the common law, but only in relation to lawsuits:

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 re-examined in any Court of the United States, than according to the rules of the common law.

It’s true that some aspects of the British common law remained in force as the law of the land after the passage of the Constitution, but mostly in relation to torts. And it’s true that the British common law did incorporate a good deal of moral law that we now reject. But this argument that because some parts of the common law remained in place until replaced by new statutes, therefore the Bible should determine the limits of behavior that may or should be allowed is utterly idiotic.

If the Bible is the test of what can and can’t be allowed, then the First Amendment must go. The Bible quite explicitly forbids worshiping other gods — it’s right there in the first of the ten commandments. By Barton’s “reasoning,” religious freedom must be gone and the First Amendment must apply only to Christians. By the way, here is what Thomas Jefferson had to say about Christianity and the common law in an 1814 letter to Dr. Thomas Cooper:

For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Charta, which terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Lex Scripta. This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it. If it ever was adopted, therefore, into the common law, it must have been between the introduction of Christianity and the date of the Magna Charta. But of the laws of this period we have a tolerable collection by Lambard and Wilkins, probably not perfect, but neither very defective; and if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its contents. These were so far alterations of the common law, and became themselves a part of it. But none of these adopt Christianity as a part of the common law. If, therefore, from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are all able to find among them no such act of adoption, we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was a part of the common law.

And then Barton makes an even more bizarre argument:

Now what’s happened in recent years, people have tried to say “hey, morals have nothing to do with government” … yes they do … and to believe that you can have government without morals, that’s not part of the Constitution, that’s not part of the Seventh Amendment, that’s not part of the Declaration of Independence, it is a twisted view of constitutionality that says morals are to have no place in this.

The problem is once you don’t legislate it, it becomes a government issue because if you say we’re not going to legislate drugs, guess who’s going to have to take care of all the drug problems that arise? It will be government. We know that right now, 25% of all property theft occurs from people who are on drugs who steal money for their habit. If you legalize that, then there goes property.

If you look at the justice system, the increase in needs to jails and jail beds and et cetera, government is going to take care of this. So if government says this is not an issue, it will be an issue. It will effect our money, it’ll effect our spending so anytime a government takes a position that it won’t take a position, it has taken a position that it is going to take a position because it is going to spend money on it, if all that convoluted nonsense makes sense.

Convoluted nonsense, indeed. His argument is basically that if the government does not forbid what he wants it to forbid, that will lead to more government control. WTF?

Comments

  1. says

    It seems like a mention of “nature’s god” is a direct reference not to YHWH, but to Spinoza’s deistic god. Considering the influence of the Enlightenment on several of the men who drafted both the Declaration of Independence and the Constitution, it seems more probable they really were talking about Spinoza’s god than YHWH.

    It appears a first-term philosophy major would be able to refute Barton in a heartbeat. Why the fuck is this guy taken seriously by anybody?

    Oh. Right. He says what they want to hear.

  2. Doug Little says

    the laws of the god who created nature, the law of nature’s god even in the very beginning said one man, one woman

    I’m gonna need some proof that,

    a) God exists.
    b) God created nature.
    c) God created laws
    d) God can speak
    e) God specifically said one man, one woman.

  3. Mr Ed says

    If God had a strong opinion couldn’t he file an Amicus brief. This would eliminate the flawed human interpretation of his will

  4. says

    Not only is the common law subject to change by legislation, it evolved itself over time. Stars decisis was never set in stone and the common law also changed as circumstances changed.

    people have tried to say “hey, morals have nothing to do with government”

    But the morals of people change over time. We used to think slavery, child labor and stoning people to death for sassing their parents were ok. If Barton wants “morals” in the law in a democracy, then he has to accept what the majority thinks is moral. He and his fellow bigots have already lost that argument when it comes to marital equality.

  5. troll says

    @1: I know this is a bit off-topic, but why is Yahweh sometimes spelled YHWH? I’ve seen Aron Ra do it as well, and it piqued my curiosity. Does old Hebrew not have vowels or something?

  6. Aaron says

    “We know that right now, 25% of all property theft occurs from people who are on drugs who steal money for their habit. If you legalize that, then there goes property.”

    Um… wut? So if we legalize drugs somehow people can legally steal property because the drugs are legal?

  7. slc1 says

    Re troll @ #5

    I know this is a bit off-topic, but why is Yahweh sometimes spelled YHWH? I’ve seen Aron Ra do it as well, and it piqued my curiosity. Does old Hebrew not have vowels or something?

    Yes.

  8. says

    I disagree about the Declaration: it was nothing more than political propaganda and an excuse to rise up against the alleged “divine right of kings.” It is an important document and shows what the Framers had in mind, but it is not on par with the Constitution and should not be used to determine constitutionality.

  9. jnorris says

    By Barton’s “reasoning,” religious freedom must be gone and the First Amendment must apply only to Christians.

    *
    By Christian, I am sure Mr Barton would agree to Church of England. The CoE was the state religion in the colonies at the time of the declaration and the official religion of English common law.

  10. Larry says

    …anytime a government takes a position that it won’t take a position, it has taken a position that it is going to take a position …

    Let me see if I can translate that into English for y’all [puts on thick nerd glasses].

    Nope. Fuck it!

  11. says

    If Barton wants “morals” in the law in a democracy, then he has to accept what the majority thinks is moral.

    Thank goodness, no he doesn’t! And neither do we.

    Equality under the law is a moral principle. That would not simply go away if the majority disapproved of it.

  12. Sastra says

    Now what’s happened in recent years, people have tried to say “hey, morals have nothing to do with government” … yes they do … and to believe that you can have government without morals, that’s not part of the Constitution, that’s not part of the Seventh Amendment, that’s not part of the Declaration of Independence, it is a twisted view of constitutionality that says morals are to have no place in this.

    Barton is equivocating here with the term “morals.”

    In the broad technical sense it means “of or relating to principles of right or wrong in behavior.” This would mean morality includes prohibitions against killing and stealing and putting people in jail without due process. Constitutional democracy itself is grounded in ethical considerations. If this is what is meant by “morals” then of course it has something to do with government.

    But then there’s a colloquial interpretation of “morals” which is popular and often used. This is the morality which involves private or personal matters of taste, judgment, and virtue. Don’t be mean; don’t be ungrateful; don’t blaspheme the name of the Lord. It includes morals which are specifically religious in nature: crimes which are crimes only because of some supernatural prohibition — like a taboo against eating pork. It makes sense to say that THIS meaning of “morality” shouldn’t be incorporated into laws meant for a general public which includes people of all religions and none. And most of us don’t want a government which tries to legally mandate that we be particularly virtuous in character.

    Barton knows this distinction, but he is trading on the similarity.

  13. D. C. Sessions says

    The four-letter Name is spelled without vowels for a number of reasons.
    1) The written text has none.
    2) It wasn’t supposed to be spoken except under very narrow circumstances.
    3) The actual pronunciation is not certain (although the usual one you see is probably close.)

    Observant Jews actually go farther — since it’s a major “don’t” to destroy any written form of the Name, observant ones don’t write anything but circumlocutions (“adonai” = “Lord” in ritual circumstances, “Hashem” = “the name” otherwise.) A lot of non-observant Jews follow the custom out of either custom or consideration.

  14. says

    Gregory in Seattle wrote:

    I disagree about the Declaration: it was nothing more than political propaganda and an excuse to rise up against the alleged “divine right of kings.” It is an important document and shows what the Framers had in mind, but it is not on par with the Constitution and should not be used to determine constitutionality.

    I didn’t say it was “on par” with the Constitution or that it should be used to “determine constitutionality.” I said it should be “used in constitutional interpretation,” by which I mean it is one of a great many documents from that time that can help us discern the intended meaning of the broad principles of the Constitution (originalism being one of many interpretive tools that judges and scholars can and should use for that purpose).

  15. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Bosnian version of wheel of fortune:

    Contestant: Can I buy a vowel?
    Host: Sure. I mean I think so. Has anyone ever done that before? Yes, I’m getting something from the booth. They say it’s legal. Go ahead.

    C: Can I get an E?
    Host: No.

    C: An A?
    H: No.

    C: An I?
    H: No.
    C: An O?
    H: No.
    C: A U?
    H: No.

  16. troll says

    @15: Thanks. That’s interesting. Item #2 seems to me to emphasize what a vicious bastard Yahweh is; speaking its name might draw its attention and all that.

  17. kantalope says

    But Barton is being sloppy with Article 7 (he is sloppy with numbers, words, facts, reality…so this should be no surprise). I wondered what the ‘attestation clause’ was: this is the part after article 7 ends:

    First there is a little section that I never paid attention too that has to do with hand written documents – it itemizes corrections: “The Word, “the,” being interlined between the seventh and eighth Lines of the first Page…” Which is kind of fun but not what Barton was talking about but this:

    Attest William Jackson Secretary

    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,

    See the magic word Independance[sic]? It is also the 12th year since the United States declared independence therefore the Constitution is merely an appending text to the Declaration of Independence – therefore the use of the other magic word ‘creator’ means that the whole text is based on the bible. Checkmate reality!

  18. vmanis1 says

    Common law evolves all the time. The best example is that in English common law, there was a right for a husband to beat his wife. Our modern laws on domestic violence simply overturned that. Common law is nothing more than a codification of legal decisions, and can be modified at any time by the legislature, or overturned by the courts if there is a conflict with the constitution or with other laws that take precedence.

    Re YHWH: Hebrew to this day has no vowels, though there are diacritical marks that serve the same purpose. A person reading a text aloud supplied the vowels. So there is nothing magic about `YHWH’s lack of vowels. As has been said, a Jew would normally read this aloud as `Adonai’. The mixture of the two sets of sounds lead to the belief that the true name of God is `Jehovah’, as shown in the KJV. `Yahweh’ is believed to be closer to the original pronunciation.

  19. kantalope says

    Although…that doesn’t even work for Barton does it….12 years would be September 1775. So the document is dating the independence from the start of the war not the passing of the Declaration so Barton still can’t shoehorn in the wording of the declaration like he would like. Who woulda guessed that?

  20. kantalope says

    uh, Vmanis1 – don’t think you want to point out that beating wives and servants is also part of god’s lawls. Gonna make the whole thing sound stupid if you do that.

  21. baal says

    You know, if Barton was a historian, he probably would have bothered to read the 7th Amendment and used writings of the time (such as Jefferson’s letter) to help himself understand what he was talking about.

  22. says

    By Barton’s “reasoning,” religious freedom must be gone and the First Amendment must apply only to Christians.

    Might want to check with Chris Rodda but I’m pretty sure that Barton has said that before. I know that Bryan Fisher has virtually said that the first amendment only applies to Christians.

  23. lofgren says

    The best example is that in English common law, there was a right for a husband to beat his wife.

    Hell, common law turned marriage into a bloodsport. If an argument between husband and wife escalated to violence, they would be marched into a special ring. The husband would be given a flail and the wife a club. Then the husband would be buried up to his waist. Then everybody places their bets and the two fight until one pins the other.

    I suppose this does present a problem for gay marriage. That fight is probably a lot less exciting if both spouses are totally immobilized.

  24. greg1466 says

    Once again Mr. Barton demonstrates that the fact that you own a book/document doesn’t mean that you understand it or have even read it.

  25. dogmeat says

    Gregory @9 & Ed @ 16:

    I have to agree with Ed regarding the Declaration. Much like the Preamble generally being ignored as a “bit of fluff,” the tendency to ignore the principles outline in the Declaration undercuts a lot of what the framers were intending. If you look at what they say in the Declaration, in the Federalist Papers, and in the Preamble, a lot of arguments that we’ve been having over the last fifty years or so regarding what these men “meant” kind of fall apart.

    For example, if you look at the arguments regarding religious liberties. The Declaration mentions a “creator,” add in the Virginia Religious Freedom Act, the notes from the Constitutional convention, and the discussions regarding the 1st amendment, and the amendment quite clearly doesn’t mean anything that Barton or Fischer try to claim it means.

    When you do similar analysis with the 2nd amendment, it becomes quite clear that limitations on firearms were considered quite reasonable and that they were talking about the states; a factor that is consistently ignored while ironically promoted in the 10th amendment at the expense of the “the people” portion.

    The framers made some mistakes, had some wonky ideas, treated people like property, etc., but they also accomplished some impressive, groundbreaking efforts to promote liberty. To understand what they were doing and get an idea of what they were thinking, the Declaration is critical. It is a pale comparison to the Constitution itself, but without it, the Constitution is diminished.

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