David Barton Claims Due Process Clause Comes from Bible

Jul 07 2011 Published by under Uncategorized

David Barton: Dishonest as the Day is Long

David Barton, who likes to pretend he is a historian and a Constitutional expert, appeared on the misnamed Engage in Truth (it should be named Engaged in Lies) to celebrate the Fourth of July by lying about the U.S. Constitution. He is now claiming the Due Process Clause of the Constitution’s “4th and the 8th Amendments” is Biblically inspired. Obviously, Barton hasn’t actually read the Constitution: it’s the Fifth, not the Fourth Amendment that he should be talking about (and of course the Fourteenth, which applies it to all the states), while habeas corpus isn’t in any of the above amendments but is found at Article One, Section 9, clause 2 (Limits of Congress), of the U.S. Constitution and states: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Barton: Now we have the Due Process Clause in the Constitution and the 4th and the 8th Amendments and that’s where you get an attorney and the right to confront your accuser and habeas corpus and all the things that are there, every one of those came out of the Bible. And it started in the Reformation with these guys pointing to the bad trials going in Europe and they said, look at the trials in the Bible, you got the trial of Naboth under Ahab and Jezebel, you got the trial of Jesus, the trial of Paul, the trial of Peter, none of the trials in Europe were being done biblically, we gotta get a system where we can do that. I mean the Declaration of Independence is about having good trials as it is about anything else and the trial clauses all came out of the Bible.

Other than sounding like an uninformed grade-schooler who is little more coherent than Sarah Palin (remember, he does not have even a college degree so he is literally an uninformed grade-schooler), does Barton have any real evidence on his side? No, not really. No more than he ever does, which is to say none at all.

In actually, the idea of due process developed out Great Britain, not Israel, from the English Magna Carta (Clause 39) of 1215 C.E.:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

The American version comes down to this:

“No person shall… be deprived of life, liberty, or property, without due process of law.”

The direct cause of this demand by the English nobles was the ability of the king to ride rough-shod over the rights of those self-same nobles and they were not having it. It established the principle that the king as well as his subjects was subject to the law, and it limited the king’s power to change those laws at his whim. It became, in effect, the “law of the land.” This was a big step in a world ruled by the idea of Divine Right of kings. We did not see it happen, for example, in France, where the Papacy’s hold was much stronger.

Remember too that in ancient Israel the idea of Divine Right of kings was in full-force. And when the kings were no more, the High Priests took over, ruling in the name of the king, who was considered to be YHWH himself. The United States, famously (somehow Barton seems unaware of this) is a liberal democracy.

Habeas corpus is an outgrowth of English common law, which has nothing to do with the Bible or with Christianity.

Even the Heritage Foundation had the sense not to push such nonsense. In their Heritage Guide to the Constitution, Edwin Meese, Attorney General under President Reagan, writes that,

The Founders’ interest in protecting Americans against unreasonable searches and seizures (and in requiring particularized warrants as the subsequent Warrant Clause of the Fourth Amendment mandates) arises out of a trio of famous eighteenth-century cases, two from England and one from the colonies.[1]

No mention is made of any biblical antecedents. In fact, full credit is given to the English Magna Carter. The phrase “due process of law” first appeared in a 1354 statute (as Keith Jurow points out, a similar phrase, “due manner or by process” has appeared in parliament two years earlier).[2] Meese points out that by the drafting of the Bill of Rights, “at least eight state constitutions contained clauses restraining government from depriving persons of life, liberty, or property except pursuant to the law of the land.”[3]

The Eighth Amendment’s “Cruel and Unusual Punishment” clause derives also from English, not Jewish law – the 1689 English Bill of Rights, which as Meese notes was “redacted in the Virginia Declaration of Rights and recommended by the Virginia ratifying convention.”[4]

There is no evidence at all that the English noblemen rebelling against King John’s authority drew upon the Bible when drew any inspiration from the Bible when writing the Magna Carta, and the Founding Fathers themselves relied directly upon the English laws in writing their own. Biblical law, you might remember, was completely absent in the debates of the Constitutional Convention, the convention members did not break for a three day prayer-fast during the convention, and neither the Bible, the Ten Commandments, nor God appear in the finished document nor in the Bill of Rights.

If there is any inspiration going on at all in all this, David Barton is most definitely not its recipient. All he has to sell are stale old lies and ignorance.

[1] Edwin Meese III, The Heritage Guide to the Constitution (Heritage Foundation, 2005), 323-24.

[2] Keith Jurow, “Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law,” The American Journal of Legal History 19 (1975), 265-279. Kurow argues (p. 279) that “The term ‘due process of law’ never played a crucial role in the development of English law. It was to chapter twenty-nine of the Magna Carta and the phrase ‘by the law of the land’ that men turned during the great crises of English liberty.”

[3] Meese (2005), 338.

[4] Meese (2005), 363.








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