Subject: Barton's "Fabrications" -- Ruggles
To: Separation of Church & State
Date: 8/7/99

I wrote:

>Quote him. He never admitted to fabricating anything, because
>he never has.

In article <>, (I Ate Spam) writes:
>Did the Supreme Court of New York, in an 1811 decision, ever say that the
>First Amendment was "never meant to withdraw religion...from all
>consideration and notice of the law?"
>Research by Jim Allison. Writing by Tom Peters.
>On page 248 of his The Myth of Separation, David Barton provides us with a
>highly edited quotation from The People v. Ruggles, an 1811 decision by the
>Supreme Court of the State of New York. The case involved a man arrested for
>publicly criticizing the Christian religion. Barton quotes the decision
>(written by Chief Justice James Kent) as follows:
>•Offenses against religion and morality...strike at the root of moral
>obligation, and weaken the security of the social ties.... This [First
>Amendment] declaration...never meant to withdraw religion...and with it the
>best sanctions of moral and social obligation from all consideration and
>notice of the law.
>Note that Barton puts the words "First Amendment" in brackets. In doing so,
>Barton indicates that these words are not in the original quotation, but are
>being provided for the sake of context. But is this quotation really about
>the First Amendment, or is Barton taking this quotation out of context?
>Here's the quotation in full (the material reproduced by Barton is in capital
>•Though the Constitution has discarded religious establishments, it does not
>forbid judicial cognizance of those OFFENSES AGAINST RELIGION AND MORALITY
>which have no reference to any such establishment, or to any particular form
>of government, but are punishable because
>The object of the 38th Article of
>the Constitution, was, to 'guard against spiritual oppression and
>intolerance' by declaring that 'the free exercise and enjoyment of religious
>profession and worship. without discrimination or preference, should forever
>thereafter be allowed within this state to all mankind.' THIS
>DECLARATION, (noble and magnanimous as it is, when duly understood),
>CONSIDERATION AND NOTICE OF THE LAW. It will be fully satisfied
>by a free ad universal toleration, without any of the tests,
>disabilities, or discriminations, incident to a religious establishment."
>(People v. Ruggles 8 Johns 290, pages 294-295.)
>Clearly, the "declaration" refered to in the quotation above is not the First
>Amendment. Rather, the reference is to Article 38 of the New York State

Art 38 is basically NY's version of the First Amendment. You have to
be pretty clueless not to see this. Notice that Kent says "the
Constitution" speaks of "religious establishments." As a matter of
fact, while the First Amendment says Congress can make no law
respecting "the establishment of religion," the NY constitution
did not say anything about "religious establishments." It did speak
of "free exercise" and "liberty of conscience," and it was force of habit
that led Kent to speak of "religious establishments." Art 38 and
the First Amendment are legally interchangable in this case.

(Though of course the First Amendment has no legal authority over
the States.)

>Barton simply omits the words that furnish the proper context
>of the quote, and then adds words in brackets that provide a false context.

The context is CLEARLY the idea behind the First Amendment.
How can any constitutional scholar not see that this is a
First Amendment case? How can anyone read the Ruggles
opinion and not discern the context?

>It is impossible to explain Barton's editing of this quote as an honest

It's not a mistake. It's a pedagogical technique. If the words from
the First Amendment are inserted into a state constitution, the
court's analysis of the state constitution is proper context for
extrapolating the court's analysis of the First Amendment.

>Kent's reference to Article 38 is explicit, as is his quotation of
>the Article's language. Indeed, Kent's argument depends on this language; he
>quotes it as if it self-evidently supports his narrow view of establishment.
>That the author of a 336 page book would misunderstand this language passes

There is no misunderstanding. Barton doesn't need to confuse the
reader by a lengthy explanation of the relationship between Art 38
and the First Amendment. The issue is identical.

>Conversely, if this is an honest mistake, it is telling evidence
>against Barton's competence as a reader and editor.

This argument is telling evidence that the web site on the
Univ of Louisville server is deliberately misleading. There is
nothing dishonest about applying the analysis of Ruggles
to the First Amendment of the federal constitution.

>On page
>58, for example, Barton says of Kent's opinion:
>•These are powerful words, written by one of the father of American legal
>practice! His specific statement concerning Christianity and the Constitution
>bears repeating:
>•To construe it [the Constitution] as breaking down the common law barriers
>against licentious, wanton, and impious attacks upon Christianity itself,
>would be an enormous perversion of it's meaning [emphasis ours].
>In this case Barton inserts the words "The Constitution" in brackets when the
>actual reference is to Article 38 of the New York Constitution. While this
>isn't as blatant as inserting the words "First Amendment," Barton's reference
>seems calculated to make the reader think that Kent is talking about the
>Federal Constitution.

He is.

The language of the NY constitution is far more explicit and limiting
than the final form of the federal constitution. It relies more explicitly
on the language proposed by Madison at the federal convention.
The fact that Kent affirms the conviction is powerful evidence that
the First Amendment was speaking of denominational establishments
in a Christian nation.

>Barton's editing of The People v. Ruggles is both selective and dishonest.

There is nothing dishonest about it. The accusation against Barton is
what is dishonest.

>Barton does everything he can to obscure the fact that The People v. Ruggles
>has nothing to do with the federal Constitution or the First Amendment.

"Nothing?" What a ridiculous, silly statement.

>vague references to "the Constitution," and his editing out of any mention of
>Article 38, completely obscures the context of the decision, and his
>insertion of the words "First Amendment" on page 248 is flatly incorrect.

"Obscures?" How would the decision have changed one single iota
if the First Amendment of the federal constitution had been discussed
instead of Art 38 of the NY constituiton? Not one whit. This attack
on Barton is dishonest.

In response to Barton's research, Cindy counters with


Perhaps this explains why Cindy understands neither Chancellor Kent
nor the rest of the Founding Fathers.

Kevin C.

And they shall beat their swords into plowshares
and sit under their Vine & Fig Tree.
Micah 4:1-7