David Barton's Bad Legal Scholarship

Jon Rowe and I have made something of an avocation out of criticizing David Barton, the pseudo-scholar darling of the religious right who has peddled lie after lie about the founding fathers. But after reading this column by Barton, I now see that his historical ignorance is matched by his legal ignorance. First of all, it's absurd for him to call himself an historian. He has absolutely no credentials in the field. Yes, he writes about history, but that is irrelevant. I write about biology, but I don't call myself a biologist. I write abou the law, but don't call myself an attorney. This is the sort of fake credentialing that is so incredibly popular among fundamentalists (Kent Hovind and Carl Baugh, come on down).

I'm skipping over all of his bad analysis of misleading polls about abortion and going right to his legal claims, where he peddles the commonly heard conservative argument about the court "discovering rights" in the Constitution:

If the Court admits that the "right to privacy" is not specifically in the Bill of Rights, then where did it find that right? According to the Court, "the Bill of Rights has penumbras" (that is, dim shadows and vague areas where things are not clearly distinguishable); gazing into the nebulous shadows in those penumbras, the Court found new "zones of privacy." Although conceding that this really had no specific basis in the Bill of Rights, the Court nevertheless asserted that these new "zones of privacy" probably could be justified by the general language of at least the Ninth Amendment, and perhaps even the Fourteenth.

Standard conservative bashing of the notion of penumbral reasoning, but of course they are inconsistent in this regard. They only condemn penumbral reasoning when it leads to results they don't like, and they rarely mention the fact that such reasoning has often been used to establish rights that they fully agree with. Glenn Reynolds (yes, the Instapundit himself) wrote a terrific article in the Penn Law Review in 1992 on this very subject. He writes:

Recent years have seen considerable criticism and hostility regarding efforts of both courts and commentators to derive constitutional rights from sources other than explicit constitutional language. Nearly all of that criticism has emanated from those generally characterized as "right wing" or "conservative," and it concerns case in which the outcome is generally regarded as "left wing" or "liberal."

One might imagine that the unidirectional nature of this criticism stems from a similar tendency in the way the Constitution is interpreted, with the left relying more on extratextual sources of authority and loose interpretations of constitutional language, and the right rejecting these methods in favor of strict reliance on explicit textual language and original understanding. Interestingly, however, this turns out not to be the case. Upon even a cursory examination, it becomes apparent that judges and scholars on the right have been as willing as those on the left to rely on reasoning and authority that are not explicit in the language of the Constitution to reach ends consistent with their desires. Nevertheless, uses of what I call "penumbral reasoning" to obtain "right wing" results have not generated the kind of criticism from advocates of "strict * construction" and "original intent" theory that has appeared when the results have been otherwise.

He lists many examples of penumbral reasoning supporting rights that are just fine with conservatives: the right to free association, the right to send one's children to private schools, the right to study a foreign language, and so forth. There are dozens of rights recognized by the court that are not found specifically stated in the Bill of Rights; conservatives like Barton don't complain about most of them, despite the fact that the exact same type of penumbral reasoning is used in those cases.

The fact is that the founders knew that there was no possible way they could list all of the rights that an individual has, nor would they have tried to do so. They did not conceive of the government as "giving" those rights it wanted to give to the individual, but of free men ceding certain limited powers to the government, and everything outside those limited powers was assumed to be up to the individual to decide. Thus, conservatives are asking the wrong question. The relevant question is not "where does the constitution list this specific right"; the relevant question is "where does the constitution give government this authority".

He then tries vainly to tie his argument to the Federalist papers, but he presents a ridiculously out of context quote to do so:

In short, the Court used this so-called "penumbra" to interpret the Constitution according to its "spirit" rather than its actual words - a significant abridgment of original intent. According to Federalist #81:

"There is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution."

The Federalist Papers further explained that the reason that the courts were not allowed to construe the laws "according to the spirit of the Constitution" was because this would wrongly "enable the court to mold them [the laws] into whatever shape it may think" - which is exactly what has happened.

Here is the full text of Federalist 81. Barton's quote is a complete distortion of Hamilton's position. First of all, Hamilton is not arguing against the notion of the Court ruling "according to the spirit of the Constitution"; he is, in fact, answering an argument that allowing the court to do so would enable the court to mold the law into any shape. Here is the full context of the little snippets that Barton so cleverly picks out:

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.'' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

Clearly, Hamilton is not endorsing the argument that if the Court rules based upon the "spirit of the Constitution" it will lead to the bad results that Barton fears. In fact, he is squarly arguing against that position and says it is made up of "false reasoning upon misconceived fact." And the key to this is actually found in the context of the full quote he offers about there not being a syllable that directly empowers the courts to do so. Again, let's look at the larger context of Hamilton's argument:

In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

The part in italics is important because it ties back to the argument that Hamilton made in favor of judicial review in Federalist 78. Hamilton's position is that the very notion of a limited constitution - the idea that legislative acts are to be restricted at all - demands judicial review, and not merely according to the text of the Constitution but also according to the spirit of the Constitution. In Federalist 78, he argued:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Notice that Hamilton does not argue that the courts must rule according to a "strict construction" of the text, but must strike down any law that is "contrary to the manifest tenor", or spirit, of the Constitution. He is clearly arguing for a much broader standard. What he is denying in Federalist 81 is the argument that allowing such a broad standard would lead to some form of judicial tyranny, where they could remake the laws as they saw fit. So contrary to Barton's misrepresentation, Hamilton is arguing against his position, not for it.

Barton then moves on to making bad federalism arguments, ignoring the entire 14th amendment in the process:

The federal court thus used the Bill of Rights to strike down state anti-abortion laws; but significantly, the entire Bill of Rights had been enacted to prevent the federal government from doing exactly what it did. As Chief Justice John Marshall had succinctly explained in Barron v. Baltimore (1833), the Bill of Rights . . . .

"...demanded security against the apprehended encroachments of the [federal] government - not against those of the [state] governments...These amendments contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them."

It's amusing to me that a self-professed "historian" could be this utterly ignorant of American history. Of course it's true that the Bill of Rights did not originally apply to state laws and actions, and Barron correctly ruled as such. But the 14th amendment explicitlly overruled Barron and applied those protections against state actions as well as Federal actions. If you read the debates over the 14th amendment, you'll see its advocates refer again and again to Barron as the reason why the amendment was necessary - the bill of rights did not apply to the states at the time and they changed that by amending the Constitution.

None of this is a shock, of course. Barton has been peddling nonsense for a couple decades now. But given his prominent position in the Republican party (he is vice chair of the Texas Republican Party and worked for Bush's 2004 election campaign), we should not allow him to make such ridiculous claims without response.