Recently, David Barton sat down for a conversation with Pastor Jack Hibbs of Calvary Chapel in Chino Hills, California, during which he asserted that even Supreme Court Justice Stephen Breyer knows that the due process clauses in the Bill of Rights came directly out of the Bible and even mentioned this fact in one of his Supreme Court decisions.
“I was reading a Supreme Court case,” Barton said, “and in it, Justice Breyer — and no one is going to accuse Justice Breyer of being a religious individual, he’ll not be found guilty of that — and he makes the comment that ‘of course we all know that all of our due processes clauses in our Bill of Rights came out of the Bible.'”
Barton said that Breyer even footnoted this assertion in his ruling, citing Volume 30 of “Federal Practice and Procedure,” which Barton claims contains a sixty page explanation of how our system of due process came directly out of the Bible.
“There’s Breyer saying ‘of course we all know that the due process clauses came out of the Bible,'” Barton said. “We don’t know that today”:
As is typical when Barton makes these sorts of claims, he doesn’t actually provide any information about the ruling in which Breyer supposedly made this assertion, making it all but impossible verify the claim that he has just made.
Our best guess is that Barton is referring to Breyer’s 1999 concurrence in Lilly v. Virginia (emphasis added):
The Court’s effort to tie the Clause so directly to the hearsay rule is of fairly recent vintage, compare Roberts, supra, with California v. Green, 399 U.S. 149, 155—156 (1970), while the Confrontation Clause itself has ancient origins that predate the hearsay rule, see Salinger v. United States, 272 U.S. 542, 548 (1926) (“The right of confrontation did not originate with the provision in the Sixth Amendment, but was a common-law right having recognized exceptions”). The right of an accused to meet his accusers face-to-face is mentioned in, among other things, the Bible, Shakespeare, and 16th and 17th century British statutes, cases, and treatises. See The Bible, Acts 25:16; W. Shakespeare, Richard II, act i, sc. 1; W. Shakespeare, Henry VIII, act ii, sc. 1; 30 C. Wright & K. Graham, Federal Practice and Procedure §6342, p. 227 (1997) (quoting statutes enacted under King Edward VI in 1552 and Queen Elizabeth I in 1558); cf. Case of Thomas Tong, Kelyng J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (out-of-court confession may be used against the confessor, but not against his co-conspirators); M. Hale, History of the Common Law of England 163—164 (C. Gray ed. 1971); 3 W. Blackstone, Commentaries *373. As traditionally understood, the right was designed to prevent, for example, the kind of abuse that permitted the Crown to convict Sir Walter Raleigh of treason on the basis of the out-of-court confession of Lord Cobham, a co-conspirator. See 30 Wright & Graham, supra, §6342, at 258—269.
You’ll note that, contrary to Barton’s claim, Breyer is not saying that “all of our due processes clauses in our Bill of Rights came out of the Bible,” but merely that the right to face one’s accuser is mentioned in the Bible, among other places. On top of that, the Bible verse that Breyer cites, Acts 25:16, consists of the Apostle Paul citing his right to confront his accuser according to Roman law:
I told them that it is not the Roman custom to hand over anyone before they have faced their accusers and have had an opportunity to defend themselves against the charges.