06/05/2013 04:46 pm ET Updated Dec 06, 2017

Sen. Lautenberg's 2005 Stand Against David Barton Was Much More Than Just a Stand for Separation of Church and State

With a career spanning three decades, Sen. Frank Lautenberg will be remembered by many different people for many different reasons. Upon hearing of his passing on Monday morning, the one thing that immediately came to mind for me was the day in 2005 when he took a stand on the Senate floor against pseudo-historian David Barton.

What Sen. Lautenberg said that day went far beyond some mere criticism of Barton's revisionism of American history or even the obvious political agenda behind this revisionism. Sen. Lautenberg made it clear that he thoroughly understood the serious danger posed by Barton and the frightening extent to which the real goals of his historical revisionism go.

People who are passingly familiar with David Barton and his Christian nationalist version of American history are generally under the mistaken impression that the reason for his campaign against the separation of church and state is merely to accomplish such things as allowing displays of the ten commandments in courthouses and schools or keeping "under God" in the Pledge of Allegiance. Those who know a little more about him understand that he is a threat to public education, having made the leap from writing books used by Christian schools and homeschoolers to being appointed as an "expert" to rewrite the history standards for the Texas Board of Education, thereby injecting his revisionist history into the public schools. An even smaller number of people understand the role that Barton's Christian nation history lies and rhetoric has played in influencing recent elections. But only a very few fully understand that Barton's goals are much more far-reaching than any of this, and, if accomplished, would have unimaginable consequences. Sen. Lautenberg was one of these very few, as he showed back in 2005.

What Sen. Lautenberg understood is that the ultimate goal of Barton and the other Christian nationalists is to undermine our government's separation of powers, particularly the independence of the judiciary. And, as I'll explain in a minute, that came dangerously close to happening in 2005. But first, let's get back to what prompted Sen. Lautenberg to speak out against Barton.

For many years, David Barton has been running (and still runs) "Spiritual Heritage Tours" of the U.S. Capitol Building. These private tours, some attended by church groups and individual Barton followers, and others specifically for pastors, known as "Pastors' Briefings," are packed with lies and propaganda about our history and government. Each of Barton's Capitol tours has to be hosted by a member of Congress, and Barton, as an influential political activist and former vice chair of the Texas Republican Party, has no problem finding conservative Christian representatives and senators who are eager to host these tours.

On March 31, 2005, then Senate majority leader Bill Frist not only scheduled one of Barton's revisionist history Capitol tours, but sent out the following letter, inviting all of his fellow senators and their families to attend:


Washington, DC, March 31, 2005.


DEAR COLLEAGUE: I am writing to invite you and your family to a private tour of the U.S. Capitol Building with WallBuilders' President, David Barton on Monday, April 11, 2005. The walking tour will commence at my office, S-230 of the U.S. Capitol at 6:00 p.m. and conclude at 7:00 p.m.

David Barton is the founder and President of WallBuilders, a national pro-family organization which distributes historical, legal, and statistical information, and helps citizens become active in their local schools and communities. He is an historian noted for his detailed research into the religious heritage of our nation. Among some of the interesting facts covered by Mr. Barton:

The U.S. Capitol Building served as a church building for decades.

The first English-language Bible in America was printed and endorsed by the United States Congress.

The original Supreme Court -- composed of numerous signers of the Constitution -- began their sessions with ministers coming in and praying over the Court, the jury, and their deliberations.

You will also learn inspiring stories behind the faces, paintings, and statues in the U.S. Capitol Building and view original documents from George Washington and others (some that are over 400 years old) which are depicted in artwork throughout the Capitol.

If you and your family would like to participate, contact Brook Whitfield in my office at 202-224-0948 or to RSVP.

I look forward to seeing you then.



Majority Leader, U.S. Senate

On April 6, 2005, Sen. Lautenberg asked Bill Frist to withdraw the invitation to his Barton Capitol tour.

When the news of Sen. Lautenberg's death broke on Monday, a number of bloggers wrote posts in which they noted that he had been an ardent defender of the separation of church and state, and several of these bloggers mentioned as an example of this that he had asked Frist to withdraw the invitation to the Barton tour. While I was happy to see that others were remembering Sen. Lautenberg for his stand against Barton, I didn't feel that a mere mention of this stand against Barton did justice to the senator's insight into the danger of Barton. What Sen. Lautenberg did that day was much more that simply defend the separation of church and state.

To those of us who are active in the fight against David Barton and his historical revisionism, Sen. Lautenberg showed on that day in April 2005 that he saw what we saw -- that the agenda of Barton and his cohorts in Congress is not only to destroy the separation of church and state, but to destroy the separation of powers. Their ultimate goal is to undermine the independence of the judiciary, giving Congress the power to dictate the courts.

Sen. Lautenberg did not address Frist's invitation to the Barton tour as a separate item of business; he made it part of a speech about the judiciary, specifically connecting it to the threats of violence being made against federal judges, and how certain members of Congress were instigating these threats.

In reaction to the decision made in the Terri Schiavo case a few weeks earlier, for example, former House Majority Leader Tom DeLay had said of the judges involved: "The time will come for the men responsible for this to answer for their behavior."

In reaction to two incidents of violence that had occurred the month before -- an Atlanta judge being murdered in his courtroom, and the murders of a federal judge's mother and husband in Chicago -- Sen. John Cornyn (R-TX) had posed the incredible theory that this violence could be explained by frustration over judges who "are making political decisions yet are unaccountable to the public" and ''make raw political or ideological decisions," and that this "builds up and builds up and builds up to the point where some people engage in violence."

The two incidents that prompted Cornyn's remarks had nothing to do with politics, but Cornyn nonetheless attributed them to anger over judges making political decisions. Why? Because at this time -- when, among other things, threat of the "nuclear option" was being used to force the confirmation of Bush's judicial nominees -- one of the biggest rallying cries of the Republicans was "activist judges," and no opportunity to exploit this favorite talking point was being passed up.

So, what did this have to do with David Barton that would lead Sen. Lautenberg to bring Sen. Frist's invitation to a Barton Capitol tour? Well, it was Barton, as much as if not more than his friends in Congress, who had popularized the war on "activist judges."

The Republican war on "activist judges" began during the Clinton's second term, when the Republicans were trying to block the confirmation of Clinton's judicial nominees, claiming they were a bunch of "activist judges" who would "legislate from the bench" to advance the liberal agenda.

In 1997, Barton published a book titled Impeachment: Restraining an Overactive Judiciary, saying that he wrote this book "in response to the request of several U.S. Congressmen," and that it had "found a growing place of influence on Capitol Hill," with "450 copies of the book which they [the congressmen who had requested the book] are selectively distributing." Specifically mentioned by Barton as on of the congressmen "heading this charge" his friend and ally Tom DeLay.

The claim made by Barton about the influence of his book in Congress was not one of his exaggerations. His book really was cited in debates and Republican-led hearings on "activist judges." Sparked by Barton and his allies in Congress, there were calls for the impeachment of judges and even the proposal of a constitutional amendment placing a ten year term limit on all federal judges, including Supreme Court justices.

Upon the election of George Bush in 2000, the "activist judges" rallying cry lost some steam for a few years, but in 2003, with the 2004 election looming, it was revived. At this time, Barton put out a second book, titled Restraining Judicial Activism.

By 2005 the use of the "activist judges" talking point had escalated to the point of dangerous statements coming from the far right, including members of Congress, that could be construed as inciting violence against judges.

It was against this background, and in this context, that Sen. Lautenberg called upon Sen. Frist to rescind his Barton tour invitation. Here is part of what Sen. Lautenberg said that day. A video of his entire speech, which I urge everyone reading this to watch, is at the end of this post.

Sen. Lautenberg began:

"Mr. President, I want to discuss the situation that is developing, questioning the value of the separation of powers, about whether one of the powers has rights that succeed the powers of the other. Particularly, my subject now regards the judiciary and whether it is a free, unencumbered judiciary, as it ought to be."

At this point, Sen. Ted Kennedy remarked, "the Senator from New Jersey is addressing the Senate on a very important issue, the independence of the judiciary," and requested that an editorial from that day's New York Times regarding the statements of DeLay and Cornyn, titled "The Judges Made Them Do It," be entered into the congressional record.

After some additional comments from Sen. Kennedy, who was calling for a bill for funding to protect the safety of federal judges, Sen. Lautenberg continued:

"What we see is, I think, the beginning of a firestorm, and the problem is that the fuel is being provided by comments made here and in the other body.

"I start off by reading from article III, section 1 of the U.S. Constitution. It says:

"'The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.'

"It is pretty clear to me. It says judicial power is vested in our courts, not in the Congress. The Constitution gives the Senate a role in the appointment of judges, and we are supposed to provide advice and consent, not direction. But once a judge is seated on the bench, his or her decisions are not subject to our approval.

"The Founding Fathers, in their brilliance, set it up that way on purpose. They wanted to make sure that court decisions would be based on legal grounds, not political grounds. But today there is an orchestrated effort to smear the reputation of the judiciary, especially Federal judges. And the effort is being waged by Republicans in Congress as a prelude to an attempt to change the rules for confirming judicial nominations.

"In order to justify this nuclear option, they are trying to paint judges as 'activists' and 'out of control.'"

After a few more remarks about the intimidation of judges and the threat of the "nuclear option," Sen. Lautenberg brought up Bill Frist's invitation:

"I note that a letter was sent out most recently by the distinguished majority leader. It is dated March 31, 2005. He invites colleagues -- it says: ''Get a Fresh Perspective on Our Nation's' -- this is on the majority leader's stationery -- 'Get a Fresh Perspective on Our Nation's Religious Heritage with a Special Tour of the U.S. Capitol.'"

Sen. Lautenberg next quoted a few statements about David Barton from other sources, the last of which ended, "Barton's not-so-subtle message is that America's Christian heritage is at risk -- and only voting Republican can save it," and then continued:

"I want those who hear me across America to pay attention: 'Christian heritage is at risk.' That means that all the outsiders, all of those who approach God differently but are people who believe in a supreme being; people who behave and live peacefully with their neighbors and their friends. No, this is being put forward as an attempt -- a not too subtle attempt -- to make sure people understand that America is a Christian country. Therefore, we ought to take the time the majority leader offers us, as Members of the Senate, for a chance to learn more about how invalid the principle of separation between church and state is.

"I hope the American public sees this plan as the spurious attempt it is.

"I ask my colleagues if they want to go to a Christian-only spokesman who will tell us about how insignificant the separation between church and state is.

"The question is fundamental to the Constitution. Are we a country of laws? If we are, then we must respect the law and we must hold the law free from threats.

"How does it feel when one looks at the Federal judge in Chicago who had her husband and her mother murdered because someone disagreed with her legal decision? How do we feel about seeing this guy break loose in Atlanta and kill the judge and a deputy? ... This is not some lawless country where if a judge makes a decision he better run for his life; nor is it Iraq, where those who are upholding the law are getting killed because other people disagree with them. We should not stand for this.

"I ask the majority leader to withdraw that invitation to tour the U.S. Capitol with this man who says that this should be a Christian-only country. How can he dare undermine the principles that are in our brilliant Constitution that was written so many years ago? We are entering a dangerous period, in my view."

So, could Barton and his allies really succeed in their attempts to undermine the separation of powers. Was Sen. Lautenberg right in fearing this? The answer is unequivocally yes. As I mentioned at the beginning of this post, the very thing that Sen. Lautenberg was warning of came dangerously close to actually happening -- probably the scariest thing I've ever seen happen in Congress.

On May 17, 2005, a little over a month after Sen. Lautenberg tried to stop Bill Frist's David Barton tour, Rep. Todd Akin (R-MO) introduced the "Pledge Protection Act," an act that would have removed all cases involving the Pledge of Allegiance from the jurisdiction of any court created by an act of Congress (meaning all federal courts except the Supreme Court), and removed the appellate jurisdiction of the Supreme Court "to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance...or its recitation." This act, so clearly an attempt by Republican members of Congress to usurp the constitutional authority of the courts, passed in the House on July 19, 2006, by a vote of 260-167.

For those of us who are familiar with the rhetoric of David Barton, and the role that his historical revisionism plays in fomenting the idea that religion is under attack and must be protected, it's not hard to see how something as unfathomable as what was being called for in "Pledge Protection Act" could come as dangerously close to becoming reality it did with this proposed bill. The emotions evoked by making the Pledge of Allegiance the issue clouded the fact that what was proposed in this bill -- allowing Congress to strip the federal courts of their authority to decide which cases they hear -- was an Article III issue, not a First Amendment issue. And it worked.

Article III was barely mentioned in all the many hours of debate on this bill. It was all about protecting religion from "activist judges." Not a single representative, including those who opposed the bill, questioned the authority of Congress to remove a constitutional issue from the jurisdiction of the courts. The meaning of the clause of Article III that states that "the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make" was never even discussed. The assertion that words "exceptions" and "regulations" gave Congress the authority to limit the constitutionally granted appellate jurisdiction of the Supreme Court was just universally accepted. It didn't dawn on a single member of the House of Representatives that if this was really what the framers of the Constitution intended this clause to mean, they wouldn't have had any reason to pass the Eleventh Amendment. That amendment, adopted in 1798, removed from the jurisdiction of the federal courts two of the things that Article III gave the courts jurisdiction over -- suits against a state by citizens of a different state, and suits against a state by citizens of a foreign state. Why, if the words "exceptions" and "regulations" in Article III were meant to give Congress the authority to alter the jurisdiction of the courts by a simple act of Congress, did the founders find it necessary to amend the Constitution in order to do this?

Maybe if the members of the House hadn't been drawn away from the real purpose of this bill and its potentially catastrophic consequences -- so frighteningly easily accomplished by simply masking the real issue with the Pledge of Allegiance -- it might have occurred to some of them that this wasn't a First Amendment issue, but an Article III issue. Maybe a few of them might have thought to look to the writings of the founders to find out just what was meant by those "exceptions" and "regulations" allowed to Congress by Article III. They might have stumbled across Federalist 81, where Alexander Hamilton explained that "regulations" and "exceptions" referred to the authority of Congress to make rules for things such as jury trials in the event that a situation arose in which the Supreme Court had to reexamine the facts of a case. They might have found a very similar explanation in James Madison's speech on the judiciary at the Virginia ratifying convention. And, if they looked really hard, they might even have found James Wilson's example of how Congress's authority to make "exceptions" could prevent an unscrupulous person from turning a state case into a federal case by involving someone in another state for the purpose of causing a hardship to the other party, who might be so inconvenienced by the long journey by horse-drawn carriage to appear before the Supreme Court that they would drop the case. Nowhere, however, would they have found anything even remotely construing these words to mean that Congress could remove the jurisdiction of the Supreme Court over any case arising under the Constitution. But, of course, the House never got around to considering any of this. After all, the Pledge of Allegiance was at risk!

As Sen. Lautenberg said back in 2005, "We are entering a dangerous period." And we were. It's now eight years later. The agenda of David Barton is still the same, and his influence over members of Congress as well as a large segment of the public has grown exponentially, making him even more dangerous than he was back in 2005.

Almost immediately upon hearing of Sen. Lautenberg's death the other morning, I was consumed by the thought that the only member of Congress who I've ever been certain fully understood the danger of David Barton and the consequences of his historical revisionism is now gone, and the fear that there may be nobody else who gets it like he did. If another attempt is made by Congress to usurp the power of the courts and obliterate not only the separation of church and state but the separation of powers along with it, will there be anyone who sees it for what it is as Sen. Lautenberg would? I certainly hope so.

Here's the full video of Sen. Lautenberg's 2005 stand against David Barton: