Wallbuilders or Mythbuilders
By Nicholas P. Miller

Nicholas P. Miller is an attorney living in Washington, D.C. He prepared this article for the September-October issue of Liberty magazine from which it is reprinted here with the permission of the Editor, Clifford Goldstein. Liberty is a bi-monthly publication of the North American Division of the Seventh Day Adventist Church. Through many years I have found the journal extremely helpful, quotable, and fileable; and I heartily commend it to anyone interested in religious liberty and its great corollary, separation of church and state. Their address is 12501 Old Columbia Pike, Silver Spring, Maryland 20904-6600 and the subscription price is $6.95. -- Foy Valentine

 Historical Revisionism and
the Religious Right

With charts, books, graphs, and videos, David Barton is out to remake America. For years he has been indefatigably crisscrossing the United States, hawking to millions of Americans a simple yet dangerous message, that “separation of church and state is a ‘myth’.” And, unfortunately, people are buying his product.

“No single Religious Right figure has done more to undermine church support for church-state separation than David Barton,” said Joe Conn of Americans United for Separation of Church and State. “He has done untold damage to the separationist idea. From his headquarters in Aledo, Texas, Barton has become the guru of Religious Right antiseparationism. He has turned his little home business into a full-scale antiseparationist industry, with 25 employees helping him spread his material.”

A careful look at that material, however, shows that “Mythbuilders” would describe it more accurately than “Wallbuilders,” for the essence of his message rests on eight historical fallacies regarding the Constitution. This article examines them all.

1. The Myth of the Explicit Constitution.
In his book The Myth of Separation, David Barton repeats the New Right mantra that the phrase “separation of church and state” does not appear in the U.S. Constitution or the Bill of Rights, a fact he uses to try to discredit Supreme Court cases that draw on that metaphor.~’~

Of course, constitutional principles such as the “separation of powers” and “a system of checks and balances” do not appear by name in either document either, yet all legal scholars would agree that these concepts are part and parcel of the Constitution. In writing that “Congress shall make no law respecting an establishment of religion,” the Founders believed these words contained the idea of “separation of church and state.” Thomas Jefferson used the “wall of separation” imagery to describe the meaning of

the First Amendment religion clauses. He is joined by James Madison, drafter of the Constitution and Bill of Rights, who passed Jefferson’s religious freedom statute in Virginia, and whose “Memorial and Remonstrance” explicated the reasons for the wall. Older than the Framers, but with influence on the nation’s ideals of religious freedom—Roger Williams, Baptist preacher and founder of Rhode Island, actually originated the “wall of separation” metaphor. [2]

To claim, as Wallbuilders does, that this doctrine is found only in the Constitution of the former Soviet Union is like maintaining that baseball originated in Botswana, hot dogs are found only in Hungary, and apple pie comes uniquely from Albania.[3]

2. The Myth of the Hasty Metaphor.
 Wallbuilders has written a pamphlet that relegates Thomas Jefferson’s views on the First Amendment to legal irrelevancy. The controversy centers on Jefferson’s letter of 1802, referenced above, to the Baptists of Danbury, Connecticut, in which he described the First Amendment as “building a wall of separation between church and state.” This metaphor has been referred to over the years by the Supreme Court in its church/state jurisprudence, a use criticized by Wallbuilders.

In “The Truth About Thomas Jefferson and the First Amendment,” Wallbuilders Press attempts to discredit Jefferson’s metaphor by noting his absence from the constitutional convention. But ideas are not constrained by geography. Jefferson’s absence from the convention doesn’t detract from his contributions—through his authorship of both the Declaration of Independence and the Virginia Statute of Religious Freedoms— to the ideas of the Constitution. Madison, who did work on the Constitution, and was the initial drafter of the Bill of Rights, had cooperated with Jefferson intimately on the Virginia Statute, and had ideas on church/state relations nearly identical to Jefferson’s.

Wallbuilders Press describes the Danbury letter as merely “personal and private,” and not “a public policy paper,” though Jefferson viewed it important enough to be reviewed and approved by the U.S. attorney general. Jefferson, in writing, told the attorney general that his Danbury letter condemned an “alliance between church and state,” and that it also explained to the Baptists why “I do not proclaim fast and thanksgiving days.” [4] These letters are part of Jefferson’s public correspondence, and certainly express Jefferson’s public views on religious matters. To argue otherwise is like saying that Lincoln’s Gettysburg Address was for the private consolation of only those in attendance at the burial grounds when he gave it.

Finally, Wallbuilders’ pamphlet attempts to marginalize Jefferson’s views on religion. It claims that Jefferson’s religious views “did not represent the views of the majority of the Founders.” While Jefferson’s deism was somewhat exotic for colonial America, it didn’t necessarily drive him to unique views on church/state relations. The “wall” metaphor, as noted above, was coined by Roger Williams, a devout Baptist who organized the government of Rhode Island around the principle of separation of the civil and ecclesiastical powers. And though Williams had been long dead by the time of the American Revolution, his church/state views were forcefully held by Baptist thought leaders who were contemporaries of the constitutional convention. Two notable examples were Baptist ministers Isaac Backus and John Leland, who were involved in the ratification of the Constitution, and who conversed with its Framers. John Leland had a crucial discussion with James Madison about the need for a bill of rights, a discussion that helped Madison decide to initially draft one.~^5~ No doubt devout Christians played a role in the creation of the separation ideal.

3. The Myth of the One-Sided Wall.
 Not content in its attempts to show that the “wall” metaphor is bad history, Wallbuilders also tries to negate its effect by revising its meaning. It claims that “the ‘wall’ was originally introduced as, and understood to be, a one-directional wall protecting the church from the government.” The wall was to stop government from interfering with religion, the argument goes, not to stop religion from involving itself in government.

A one-sided wall would be a neat feat of engineering, but it is a bad image of the Founders’ intent. One of Madison’s main arguments against a tax in support of all Christian religions in Virginia was that state support of religion endangered the state. He stated this idea in 1785 during the Virginia church/state controversy in his epic “Memorial and Remonstrance,” which set forth the principles and reasons behind the wisdom of keeping state and church separate. Madison wrote, “What influences in fact have ecclesiastical establishments had on civil society? In some instances they have been seen to erect a spiritual tyranny on the ruins of civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instances have they been seen the guardians of the liberty of the people.”[^6] Only a two-way wall, on that both keeps government out of religion and religion out of government, can truly protect religion. If some religious groups are allowed to legislate religious morality or use taxes for church activities, then religious groups too small to influence the legislature will be forced either to live according to the dictates of another religion, and/or to pay money to support activities of other religions. Either way, these minority religious groups will have lost freedoms. As one constitutional scholar put it: “The wall of separation ensures the government’s freedom from religion and the individual’s freedom of religion. The second probably cannot flourish without the first.”[7]

4. The Myth of the National Church
Another popular fiction, promoted by Wallbuilders, is that the First Amendment was meant merely to prevent the federal government from creating one national church. This position, known as “nonpreferentialism,” allows government to support religion as long as it does not “prefer” one religion over another. In other words, the Constitution prevents the establishment of one religion, but not the establishment of all religions. Apart from the impracticality of establishing all religions (would most Americans support Zoroastrianism and Jainism, not to mention Satanism?)[8], the major problem with this view is that—it’s wrong.

The Founders viewed government support of any religion, or any combinations of religions, as an establishment. As one scholar has commented: “Opponents of a general assessment [nondiscriminatory state aid to all churches] referred to it as an establishment, and at times, its proponents did too.” Nobody, however, “attempted to show that a general assessment constituted an essentially different kind of establishment or to differentiate it from an exclusive state preference for one religion.”[9] The Founders considered support of religion, whether of one sect, or all, as an establishment of religion.

Madison’s “Memorial and Remonstrance” shows that the issue was not merely that of a national church. The proposed Virginia tax that Madison wrote against would be used to fund all churches (in Virginia at the time, there were no mosques or synagogues) on a nondiscriminatory basis. Madison asks, “Who does not see that the same authority which can establish Christianity.. may establish with the same ease any particular sect of Christians, in exclusion of all other sects?”

The benefits of the tax in Virginia were designed to go to all “Christian” groups. Madison did not say that the fault of the proposed tax could be cured by extending its benefits to all religions, such as Islam and Judaism. Rather, he argued against the principle of direct government support of religion at all.

5. The Myth of Founder Uniformity
 Wallbuilders’ materials contain an array of quotes from various Founders, a number of which genuinely do appear to claim that the United States government is based, in some formal sense, on Christ and His gospel. These quotes, however, are part of a debate, and represent only one side of that debate, the losing side, a fact that Wallbuilders conveniently overlooks.

An example is Wallbuilders’ use of quotations from one of its favorite Founders, Patrick Henry, who said, “It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the gospel of Jesus Christ!”[10]

Wallbuilders omits to mention the historical debate in which Patrick Henry played a leading role. It was Patrick Henry who submitted the bill to the Virginia legislature for a general tax in support of religion, which caused Madison to respond with his “Memorial and Remonstrance.” Henry’s views, and those of his Episcopal allies, were the views countered, and eventually defeated, by the ideas in Madison’s document. The issue was controversial and heated, but Madison’s side won.

The defeat of Henry’s bill was followed shortly by the passage, guided by Madison, of Jefferson’s Virginia Statute Establishing Religious Freedom. The Jefferson/Madison side of the debate provided the inspiration and framework, as discussed above, for the creation of the religion clauses in the federal Constitution. To quote Patrick Henry as an authority on how we should order church/state relations is like citing Marx as an authority on capitalism.

Another example of Wallbuilders’ one-sided historical recounting is its description of Franklin’s suggestion that prayer be offered at the start of sessions at the constitutional convention, a suggestion that was defeated for a number of reasons, including a lack of funds to hire a pastor, and out of deference to Philadelphia’s Quakers. Franklin himself noted that the convention, “except three or four persons, thought prayers unnecessary.[11]

By contrast, here is Wallbuildets’ recounting of that event:

“Franklin’s admonition—and the delegates’ response to it—had been the turning point not only for the convention, but also for the future of the nation... With their repentance came a desire to begin each morning of official government business with prayer.” [12]

6.  The Myth of the Impeccable Founders.
In fairness to Wallbuilders, not all the historical stories of the Founders’ public involvement with religion are mythical. In his first year as president, George Washington did issue a proclamation designating a day of thanksgiving and prayer to “Almighty God.”[13] James Madison issued a similar proclamation when president. Even Thomas Jefferson proclaimed a day of religious thanksgiving when he was governor of Virginia 20 years prior to his presidency.[14] Jefferson did, however, refuse to issue a prayer and Thanksgiving edict during his presidency.

These inconsistencies can be explained. The Founders were grappling with principles of universal import and sweep, some of which had never been implemented in the day to day workings of a civil government. This was especially true of separating the church from the state, something that had never been attempted at a national level. Thus, it shouldn’t be surprising that the Founders’ application of these principles was not always perfect. The truth is, each of the above instances of prayer and Thanksgiving proclamations is noteworthy because of the contrast it provides with each Founder’s general philosophy.

George Washington gave ample evidence of his conviction that religious belief and practice were private matters. In a letter to a Baptist church leader he wrote, “In this enlightened age and in this land of equal liberty it is our boast that a man’s religious tenets will not forfeit the protection of the laws, nor deprive him of the right of attaining and holding the highest offices that are known in the United States.” [15]

His most public statement regarding the relation between Christianity and the laws and institutions of the Untied States is his administration’s treaty with Tripoli in 1797. That treaty, in Article XI, stated that “the government of the United States of America is not, in any sense founded on the Christian religion, as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and.. .that no pretext, arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.”[16]

To claim that Washington’s Thanksgiving proclamation was a full, or even a representative, expression of his philosophy of church/state relations, one must ignore these public and emphatic statements of church/state separation.

Writing several years after his presidency, Madison admitted that the existence of congressional chaplains and national days of Thanksgiving and prayer were, strictly speaking, violations of the federal Constitution. His solution was to view these excesses as “harmless,” as long as they were not used as a basis to argue for further combinations of church and state. Anticipating the arguments Wallbuilders makes, Madison wrote, “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.”[17] The latter phrase means, in effect, “the law does not concern itself with trifles.” Wallbuilders treads on dangerous ground when it bases arguments about how society should work on the exceptional and unusual actions or practices of the Founders. Many of the Founders, Jefferson and Washington included, kept slaves. The Founders did not give voting rights to women. Does Wailbuilders believe the Founders’ practices in these areas show that the Declaration of Independence and the principles of the Constitution should not apply to women and certain minorities? Americans should be guided by the vision of the Founders, not by their blind spots.

7. The Myth of the Unchanging Constitution.
It is true, as Wallbuilders claims, that the First Amendment to the federal Constitution initially did not apply to state governments. Wallbuilders goes a step further, however, and claims that this proves that the Founders intended religion to be regulated, and even established by, state governments. [18] This argument overlooks the fact that none of the individual protections found in the Bill of Rights applied to the states. To apply Wallbuilders’ logic to other parts of the Bill of Rights would require one to believe that the Founders did not mind if states infringed on speech rights, freedom of assembly, and the privacy rights of its citizens. The following quote from Madison shows his view on the issues: “Ye States of America, which retain in your Constitutions or Codes, any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise and purify your systems, and make the example of your Country as pure and complete, in what relates to the freedom of the mind and its allegiance to the its maker."[19]

The states heeded Madison’s exhortation and rapidly followed the example set by the federal Constitution. Soon all the states had placed clauses strikingly similar to the First Amendment in their own constitutions. The last state to abolish its established church was Massachusetts in 1833.

Furthermore, after the Civil War, Congress passed the Fourteenth Amendment, which eventually was used to apply the Bill of Rights, including the First Amendment, to the states. Wallbuilders apparently would prefer that the Fourteenth Amendment did not exist. They argue that the amendment was designed exclusively to secure civil rights for the emancipated slaves. “Did the Congress which created the Fourteenth Amendment,” they ask, “Intend that it should incorporate the First Amendment against the states? The answer.. .is an emphatic and resounding ‘No!”’[20]

Once again Wallbuilders misstates its case. Many of the Framers of the amendment openly said that the amendment would apply at least the individual liberties to the states. It is true that for many years (until the twentieth century, actually) the U.S. Supreme Court did not carry out this intent, but applied the amendment only to the issues of freed slaves and their rights. Constitutional scholars still debate the intended scope of the Fourteenth Amendment, though some Framers express their understanding of its intent quite clearly Congressman Bingham, the primary drafter of the language of section 1 of the Fourteenth Amendment, said years lager: “[The] privileges and immunities of citizens of the United States.. .are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows. Bingham then proceeded to read the first eight amendments word for word.] These eight articles.. .never were limitations upon the power of the states, until made so by the fourteenth amendment."[21]

Other Framers and ratifiers of this amendment shared the understanding that it was meant to apply the Bill of Rights, including the First Amendment, against state governments. Senator Jacob Howard, analyzing the clause, acknowledged that prior to the Fourteenth Amendment the Bill of Rights had not applied to the states, and noted that “the great object of the first section of [the fourteenth] amendment is, therefore, to restrain the power of the states and compel them at all times to respect these great fundamental guarantees [of the Bill of Rights] “][22]

The application of the Bill of Rights, including the First Amendment, could then be deemed part of “original intent” of the Constitution, as congressmen of the I 860s became “framers” in their own right. By ignoring what these men said, Wallbuilders is guilty of what it so vociferously accuses others of, that is, of ignoring the intent of the Framers.

8. The Myth of Dependent Christianity.
Wallbuilders’ greatest, and most unfortunate, myth has not to do with history, but with theology. Its historical arguments imply that Christianity is dependent on civil powers for its strength and effect. Barton claimed that the consequence of the Supreme court’s decision to “remove” prayer from the public schools in 1963 has destroyed American society: “Following the judicial rejection of natural law and the embracing of relativism, the United States has become number one in the world in violent crime, divorce, illegal drug use; number one in the western world in teenage pregnancies; and number one in the industrial world in illiteracy... .By removing divine law, the Court removed the source of our previous national stability.”[23]

Barton asserts that the Supreme Court of the United States can remove divine law through judicial fiat, a jurisdiction beyond all earthly powers. The corollary to this claim is that divine law can be reinstated through judicial or legislative enactment, a scary prospect.

Why? Because the basis of all earthly jurisdiction is force. No civil law is really a law unless the state is willing to enforce it.

Your house, your car, even your children, are physically yours only as long as the government can exercise a greater force than that exercised by thieves, robbers, and anarchists. This simple principle explains the general ineffectiveness of the United Nations in dealing with belligerent nations. The united disapproval of virtually the entire world will not deter an Iraq or a Serbia; only the barrel of a tank or the muzzle of a rifle will.

Those who advocate the enshrinement of uniquely Christian values in the laws of our land are literally advocating that force be used to coerce people to conform to spiritual ideals. Allowing prayer in schools seems harmless enough. Those who sue school boards, however, over decisions not to allow prayer at graduations or in the classroom are in effect saying, “Allow prayer at your graduation, or if need be, we will have the sheriff arrest you, and throw you in jail, and then we will pray”

The biblical prophets warned the kings of Israel against relying on the “arm of flesh” for their salvation. It was also they who prophesied of God’s “new covenant, which would be written on the “fleshy tables” of the heart. The New Testament more fully expounds the truth that Christ’s kingdom is first, foremost, and (at least while we’re on this earth) exclusively of spiritual authority.

His kingdom, Christ taught, was made up of voluntary adherents who chose to follow Him and have His principles written on their hearts by faith. He said, “My kingdom is not of this world. If My kingdom were of this world, My servants would fight” (John 18:36, NKJV) 7 He told Peter, a man zealous to wield temporal power on behalf of spiritual truths, “Put your sword in its place, for all who take the sword will perish by the sword” (Matt. 26:52, NKJV). He advocated that the use of teaching and persuasion, combined with the Holy Spirit, would lead people to the truth. This in turn would cause them to have His law, voluntarily and joyfully, written on their hearts in a way that no Supreme Court edict could ever accomplish.

9. Conclusion.
In their zealous advocacy for Christ’s kingdom, Wallbuilders and their allies cut squarely across the spiritual principles they appear so anxious to uphold. In that sense, then, the name “Wallbuilders” is correct: the organization is building unnecessary walls of prejudice in an onlooking world, a word desperately needing to hear about the One who has “broken down the middle wall of division” (Ephesians 2:14, NKJV) between humanity and God, making possible the building of the divine law in the hearts of human beings. On the other hand, considering the fallacies of its arguments, “Mythbuilders” is the one title that really fits.

See a copy of the US Constitution with amendments "merged" with the original text.
   www.Beeville.Net/TheConstitution This link was not a part of the original article.

Endnotes

[1] “Texts credited to NKJV are from The New King James Version. copyright @ 1979, 1980, 1982, Thomas Nelson, Inc., Publishers.David Barton, The Myth of Separation (3rd ed., 1992), pp. 41-46.
[2] Roger Williams wrote in 1644: “First, the faithful labors of many witnesses of Jesus Christ, extant to the world, abundantly proving that the church of the Jews under the Old Testament in the type of the church of the Christians under the New Testament in the antitype were both separate from the world; and that when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God bath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness, as at this day. And that therefore if He will ever please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and that all that shall be saved out of the world are to be transplanted out of the wilderness of the world, and added unto His church or garden” (Roger Williams, A Letter to Mr. John Cottons [1643], quoted in Leonard W. Levy, The Establishment Clause:  Religion and the First Amendment [1986], p. 184).
[3]  Barton, p. 45.
[4] Levy, pp. 182, 183.
[5] William Lee Miller, The First Liberty. Religion and the American Republic(1988), pp. 120, 21 1-214.
[6] James Madison, “Memorial and Remonstrance” (1785), reprinted in Edwin S. Gaustaud, Faith of Our Fathers (1987), appendix A.
[7] Levy, p. 194; (italics supplied).
[8] Wallbuilders avoids this problem by claiming that the Founders meant to establish Christianity, rather than religions generally. “When our Fathers enacted the First Amendment, the abuse they intended to avoid was that of having one, and only one, denomination of Christianity selected, protected, or promoted by government. . . .They wanted [however] to establish Christianity as the basis of government and public institutions” (Barton, p. 142).
[9] Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986), p. 210.
[10]   Barton, p. 109. Levy, p. 64.
[12] Barton, p. 110.
13] Ibid., pp. 114, 115.
[14] Akhil Reed Amar, “The Bill of Rights as a Constitution,” Yale Law Journal 100 (1991): 1131, 1159. It should be noted, however, that Jefferson’s proclamation was prior to the passage of the Virginia Act for Establishing Religions Freedom.
15] “George Washington Papers,” Letter Book 30, p. 110, Manuscript Division, Library of Congress, quoted in American State Papers on Freedom in Religion, 3rd. ed. (1943), p. 155.
[16] Quoted in American State Papers, pp. 130, 131, (italics supplied).
[17] James Madison on Religious Liberty, R. Alley (1985), p. 92.
[18] Barton, pp. 167-169; Amar, pp. 1131,1157.
[19] James Madison, “The Detached Memoranda,” quoted in James Madison on Religious Liberty p. 90.
[20] Barton, p. 169.
[21] Congressional Globe, 42nd Congress, 1st session 84 app (1871), quoted in Akhil Reed Amar, “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101 (1992): 1235.
[22] Amar, “The Bill of Rights and the Fourteenth Amendment,” p. 1237.
[23] Barton, p. 217, (italics supplied).

Updated Monday, May 05, 2003