Understanding judiciary system, how much power does Trump have? Why can’t Trump ignore the decision to overturn the immigration executive order, myths concerning the judiciary system, understanding the lower courts, and so much more on today’s episode. Tune in now to WallBuilders Live, Foundations of Freedom Thursday!

Air Date: 03/02/2017


Guests: David Barton, Rick Green, and Tim Barton


  • WallBuilders | American historical events, founding fathers, historical documents, books, videos, CDs, tapes, David Barton’s speaking schedule.

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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast.  However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers.  Additionally, names may be misspelled because of the difficulty in understanding the speaker at times. We apologize in advance.

Welcome

Intro:

President Thomas Jefferson said, “I know no safe depository of the ultimate powers of the society but the people themselves.  And if we think them not enlightened enough to exercise their control with a wholesome discretion the remedy is not to take it from them but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Rick:

You’ve found your way to the intersection of faith and the culture.  This is WallBuilders Live! We’re glad to have you with us today where we’re talking about today’s hottest topics on policy, faith, and the culture from a Biblical, historical, and constitutional perspective. Our emphasis today on that constitutional perspective, our Foundations of Freedom Thursday.

Here with us today is America’s premiere historian and WallBuilders founder and president is David Barton. And my name is Rick Green. I’m a former Texas state representative and national speaker and author.

You can find out more about our organization.  We’ve got two websites to go check out. One is WallBuilders.com.  That’s our main website, wealth of information there. And then our radio site is WallBuildersLive.com, and there you can get a list of our stations around the country. You can check out the archives of programs over the last few weeks and months. And also just a lot of great information there as well.

So, David, Foundations of Freedom Thursday a chance to get questions from the audience on different areas of application of the Constitution to our culture or our application of the Bible. Sometimes we get questions about the Founding Fathers. It’s been really great because I think you and I, we’ve had the chance to really go learn a lot of stuff because they asked that we weren’t really expecting sometimes.

Iron Sharpens Iron

David:

Yeah, questions are one of the best ways of gaining knowledge. Interestingly, that’s the way we used to run American education was through questions. We have in the museum library here, just a big section of early textbooks. The guiding principle on that was what was called “catechisms” which is questions and answers.

Just like when Jesus said in the temple and question the doctor’s law and they questioned him and back and forth. That’s the type of stuff that generates learning, is questions, because then you have to dig deep, then you have put your knowledge together, and then you have to make it flow in a good direction.

So, questions is big.  And Tim and I’ve been looking recently, Jesus was really into questions. In the New Testament you’ll find that Jesus asked 337 questions across the board. We’re so used to reading the scriptures, the New Testament, and look at the teachings of Jesus, pay attention to the questions that he asked. That guides the direction, that increases knowledge, and understanding.  It causes people to come to conclusions they wouldn’t otherwise reach.  It causes you to think rather than just learn.

That’s good for us. We’re told in Proverbs, “Iron sharpens iron.” When you get questions it really makes you go back and look at what you believe, what you think,  and what you thought you knew. You have to look up new information. It’s a really good way of increasing the knowledge.

Original Writings Of The Founders

Rick:

Well, in fact, David you mentioned the library museum. Just for our new listeners that may not be familiar.  You’ve got an amazing collection there, over 100,000 documents from predating 1812 Founding era. Maybe one of the largest in the nation or world, just incredible stuff.

Also, in the last few years you’ve added a lot of really cool artifacts and you’ve gone beyond that 1812. Got a lot of cool World War II things.  You’ve got muskets.  It’s all kinds of cool stuff.  

I say all that for our listeners to know when we’re talking about we’re quoting the Founders or we’re talking about things that happened back then, you’re not just pulling that out of some textbook that some guy wrote 10 years ago or five years ago. You’re going back to the original writings of the Founders.

Their journals, their letters to each other, to get what was really going on in their head to figure out how did they really intend for our nation to work and our founding documents to work?

David:

Yeah, it’s really cool and we like sharing that. That’s why we have tours all the time through the library museum. Unlike other museums, it’s not that you just go in there and walk around and look at stuff. The tours are scheduled and you go through and we have our documents that go through.

A lot of built around storytelling, that’s what we used to do in history. If you look at old history books it was storytelling. When you do that, you get to learn who the people are, we’ve got their artifacts, and we can hold them up and show you.

In many cases we let you touch those artifacts and even handled those artifacts, so we’re really different from other places and that we really want you to connect with that part of history.

Our Museum Tours

What’s fun with this is, not only do we have all these tours going through, folks that are interested, just call the office ahead of time say you want to go to one of the tours and they’ll schedule you in.

But also, we use that to help teach.  For example, in the summers we do interns and we get those interns in there from 18-25, much like Patriot Academy.  Except this is going back into the classroom not necessarily looking at just the Civil War. We want to train kids in all of those areas.

So we say, “We know what your professors are going to tell you. We know what kind of nonsense you’re going to get. But we want you to actually hold the documents that show exactly the opposite of what your professor is about to tell you. We want you to handle those documents and when he says, ‘Well they this, that, or the other.’

Say, ‘Woah, I actually held the document where they..’”

So it equips you with apologetics to go in. And so 18-25, those kids going to college, in college, or just out of college.

Also, we’ve got a teacher’s conference that we do in the spring break time, in the spring, and teachers come and the same thing. They get to handle all these documents and see all these things and so history teachers or superintendents or government teachers or principals.  We’ve got university professors coming this year all this kind of stuff we do to let people actually get into the stuff.

It’s not that we want to preserve this stuff like an old antique place that nobody ever touches. We wanted to go out there and change the culture because this is America the way we knew it before.  It’s being reshifted now by people who really attack who we were, and what we did.

Lots Of Resources For You

Rick:

And folks, if you want to learn more about any of those programs, get plugged into them, go to our website today at WallBuilders.com and under the contact page you can you can find out about one of those.

David, also for those that may never get a chance to actually travel into Aledo, outside Fort Worth there, and see the library. We try to bring it to life through video as well. There’s a lot of great short videos you guys have put up on YouTube and Facebook.

So, folks, if you just even go to the Facebook page you can just search David Barton or WallBuilders and pull up the main page there and Tim and David have done these great short videos. Just grabbed an artifact and brought it to life and you get a chance to see it there on the video or letter or tell some story of a former president.

So it’s a great way to get plugged in, just real quick short lessons every day, or you can in five minutes learn something that really helps you to understand what our nation’s really all about.

David:

Yeah, and on top of that, we just have a brand new website that came up and that new website, it took us a while to get it because we have so much material in the library museum. The website it took a while to be able to find people who can handle all of that volume of stuff.

Two Minute Clips

So, we’re in the midst of now, is moving those 100,000 documents eventually over to the websites so that everybody can see that and have access to it. But at the same time on the website if you go to the section called “initiatives” and just pull it down.

If you’re a teacher you can make an application for the teacher’s conference.  If you’re 18-25 you can make an application there for the internships in the summer. You can click on there for Patriot Academy. You’ve got all sorts of things under initiatives that are really cool.

So, it took us a while to get a website developer that could handle all this stuff and handle the mass of information. But now that new website is up we’re starting to fully populate that so you can keep coming back there.

Rick, as you said, the short videos we have a YouTube channel so you can subscribe to that, and we’ve got new videos coming out every week showing cool stuff that’s on the inside of the library. Generally, we do it in one to two minute clips and that’s it. So it’s really short and sweet but it’s fun stuff to learn about some of the stuff from American history everybody used to think was so cool.

Ways To Get Involved

Rick:

I haven’t even had a chance to go through the whole website. The new website’s phenomenal, but as you mentioned the initiative page, it shows even the pastor’s briefings, the legislators conference, there are so many other ways for people to get involved.

Pastors that are listening now, you may know your state rep or state senator.  Tell them about that Pro-Family Legislators Conference in the fall or encourage your pastor to go to the briefing in D.C. and get a chance to get that behind the scenes tour of the Capitol that most people don’t get to go on.

David takes you into these rooms.  It’s just it’s incredible.  History will come to life, and the faith of our Founders and the importance of Christians and pastors and the founding of our country and keeping our country strong will absolutely be seared into your conscience. You’ll understand why it’s so important to do what we’re doing.

Going to take a quick break. We’ll get to our first question when we come back. Stay with us.  You’re listening to WallBuilders Live!

Calvin Coolidge

Calvin Coolidge said, “The more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”

Patriot Academy

Have you noticed the vacuum of leadership in America? We’re looking around for leaders of principle to step up and too often no one is there. God is raising up a generation of young leaders with a passion for impacting the world around them. They’re crying out for the mentorship and leadership training they need. Patriot Academy was created to meet that need. Patriot Academy graduates now serve in state capitals around America, in the halls of Congress, in business, in the film industry, in the pulpit, in every area of the culture. They’re leading effectively and impacting the world around them.

Patriot Academy is now expanding across the nation and now is your chance to experience this life-changing week that trains champions to change the world. Visit PatriotAcademy.com for dates and locations. Our core program is still for young leaders 16 to 25 years old, but we also now have a citizen track for adults. So visit the website today to learn more. Help us fill the void of leadership in America. Join us in training champions to change the world at PatriotAcademy.com.

Samuel Adams

Samuel Adams said, “The liberties of our Country and the freedom of our civil Constitution are worth defending against hazards. And it is our duty to defend them against all attacks.”

Who Has The Most Power

Rick:

Welcome back to WallBuilders Live.  It’s Foundations of Freedom Thursday. We’re getting your questions, by the way.  If you have one, send it into [email protected] Every Thursday on our Foundations or Freedom program we try to get as many of those as we can.

David, our first one today is from Tony in Garland, Texas. He said, “Why can’t the Trump administration simply ignore the federal judge’s decision to overturn the immigration executive order? I ask this  because the president’s order has plenary power and is not subject to review.”

“Furthermore, the federal judge has no authority to reach up and make such a decree as he did due to the separation of powers.  Also, isn’t it true that if the executive order were to proceed against the judge’s interference there would be no legal recourse against the president since the courts have no standing to litigate the executive order?”

Ok, a lot of questions in there. David, I don’t know which part of that you want to pick first.

David:

Well, I agree generally with the premise. But I have to say, the president doesn’t have plenary power that’s not subject to review. Every single entity in government is to be subject to review.

You have the checks and balances.  The branches can look at it. We want accountability everywhere. We don’t want an unaccountable president. So even though the other branches can look at it doesn’t mean they get the final word on it.

So, Congress can have review power. Congress can set aside an executive order. Congress can set aside anybody’s order potentially if they if they choose to. They’re the ones that have the most power to set things aside.

Perversion Of The Law

But, the president and the Supreme Court can also provide checks on Congress.  Even Congress is not unlimited. So that’s the one caveat exception I would take, is that, no, the president doesn’t really have that plenary power.

He can issue an executive order. And I think the core question here is can President Trump just ignore the Supreme Court?  If you’ve been to school in the last 30 to 40 years you can say, “No, he can’t.” If you actually had been back in the Founding

Era and live all the way up into the 20th Century you would have said, “Yeah, presidents do that all the time.”

Presidents nor the Supreme Court, the Supreme Court, my gosh that’s only an opinion. They’re the weakest of the three branches. We would not say that today because we think they’re the strongest of the three branches, and they get the final word on constitutionality and etc.

But there’s absolutely no way that this would have been a question in previous generations because we all knew our history and our Constitution too well. So, if you want to go all the way back to the beginning of what they now call, “judicial review.”

When the Supreme Court told Thomas Jefferson what he needed to do in an area of judges and commissions and other things, Jefferson laughed it off and said, “That’s ridiculous. For you to tell me what to do is a perversion of the law.” That was his phrase, a perversion of the law.

What Is Actually Permissible

James Madison was his secretary of state and they both called it a perversion of the law for the Supreme Court to try to tell the president what he was to do. And so let’s just take Jefferson and Madison, two Founding Fathers and put that up beside Trump and say, “If the Supreme Court told Jefferson and Madison president, secretary of state what they they’re going to do on immigration, what would they do?” They would call it a perversion of the law.  So that’s one example.

You can move forward onto Andrew Jackson. Andrew Jackson, the Supreme Court told him what to do with banking. What he did in the banking area wiped out the National Bank.  Didn’t think that that was constitutionally permissible for the nation to have a national bank that it was something states could have banks and that was private enterprise.

So, he ended a national bank, and the Supreme Court said, “You can’t do that.  You have to reinstate the National Bank.” And he said, “Go take a flying leap.” In kind of colloquial terms.

He said, “Well, they made their decision.  Let’s see if they can enforce it.” And that was the attitude. “Ok, that’s your opinion.  You’re welcome to have your opinion but you have no power to enforce your opinion.”

By the way, people often think federal marshals work for judges.  They don’t. Federal marshals work for the executive branch. That’s part of the execution or the application of the law. That’s not part of the interpretation.

Power Or Opinion

The courts have no power at all. They often tell federal marshals what to do. And in this day and age, we think that that’s fine, that the federal marshals belong to the judiciary branch.  They don’t.

They’re part of the executive branch.  That’s where they’re funded. That’s where they exist. So you have Andrew Jackson who says, “Ok, you’ve made your decision. Let’s see if you can enforce it. That would be the same thing that the Ninth Circuit, “Let’s see if you can enforce this.”

And they can’t. They have no enforcement mechanism at all. And that’s why the Federalist Papers say they are the weakest of all the three branches. They have neither force nor will.  They can influence no public policy. They just don’t have any enforcement mechanism. No way to do that.

They can say, “Well, we’re going to issue a contempt of court and we’re going to hold you in contempt of court for a hundred thousand dollars a day until you change.” Great. Who’s going to collect that $100,000?  It’s the executive branch that has to do that. It’s not the courts. So the courts have no officers by which to enforce their decision or their opinion.

We Have Unelected Officials

Then you can move forward to the Dred Scott Decision in 1857 where the Chief Justice Taney announced, and the famous line from that decision is, “Black folks don’t have any rights which a white man is bound to respect.” He said, “And by the way, the federal government cannot end slavery anywhere. You can’t end it in federal territory.  You can’t end it anywhere.”

Abraham Lincoln comes along and says, “ That’s kind of funny. Well, good thing it’s just the Supreme Court. That doesn’t mean anything.” And that’s exactly what happened. He ignored it.  He ignored that, and in his inaugural address, he said, “You know, this is pretty ridiculous what the court did trying to tell us what to do in this area. If we ever accept the premise that the court can tell us what to do then we will have given our nation over to a group of unelected individuals.”

What Would You Do

Rick:

Wow, that’s where we are now.

David:

That’s where we are now.  And so, the answer to that is, today, if you’ve studied history in 30 years you know none of those examples.  You know none of the other instances where that the president just told the Supreme Court or told the judge just go take a flying leap.  

“You don’t have the authority.  I read the Constitution and you clearly aren’t reading it because nothing in the Constitution gives you the authority to strike down that policy.” Now they are welcome to give their opinion on policies and the president’s welcome to say, “You know, I hadn’t thought about that. I’ll go back and modify my order to take into account what you pointed out. But I don’t have to.”

And so that really is the short answer to this thing is yes, Trump can do that. Now, here’s the other part. You now get in the public policy part of public opinion. If he were to do that what would the media do?  What would academia do?  And what would most of the public do?

Turning Tables

Rick:

Oh, it would be chaos.

David:

It would be chaos. And he said “no” to the court. They would accuse him of anarchy and not following the rule of law. Wait a minute, the rule of law? The courts don’t make law. Congress makes law.

And this is a 1952 or 1954 law we’re talking about here. It’s a law that has been constitutional. I think it’s the 52 Law.  So it’s been 65 years. Why in the world has no court prior to this court struck down this law? For 65 years has been on the book. It’s been used by numerous Democratic presidents and now a Republican president does it and it becomes unconstitutional. Why? Well because the courts have become a political branch not a not a legal branch.

Rick:

Yeah, they don’t like the policy that’s coming from it.

David:

That’s right. It’s not that the laws are bad.  They don’t like the outcome of it, and therefore, they’re going to strike it down. It was good for Carter and it was good for Clinton but it’s not good for Trump because he’s doing it with people that we want to see in as judges.

Certain Measures That The Court Can’t Do

Rick:

Elbridge Gerry or one of the Founders had said the court was such a terrible place for policy to be made because they’re not answerable to the people as quickly and it’s just not a place where you deliberate the issues well and I can’t remember his phrase but it was something to the effect of, “That’s not the place you want to decide policy.”

David:

Well, you mentioned Elbridge Gerry.  Let me just read this quote. Elbridge Gerry, you have to understand, was one of the 55 guys who helped frame the Constitution of the United States.

Elbridge Gerry was one of the Founding Fathers who is very much pro-judiciary. There were some Founding Fathers like Thomas Jefferson and others that were not that big of fans of letting the judges have much of a voice. That’s really what the Constitution did.  It restricted their voice.

But Jefferson really was firm on that. So, too, with Madison.  But Elbridge Gerry is on the other side because he is a Federalist. You find the Antifederalists are the ones who want to see the court’s kind of restricted. The Federalists are the ones who say, “Well, courts are ok.”

And so here you have Elbridge Gerry as a Federalist and even he said, “No, there are certain measures that the court can’t do.” And this is what he says, “It is quite foreign, from the nature judiciary’s office, to make them judges of the policy of public measures. That’s completely out. I’m a huge fan of judges. But to make them the judges of public policy, that’s foreign to their office.”

Get Your Members Of Congress To Change That

Rick:

They’re supposed to apply the policy that the other two branches have put together. What the legislature passed a law and the president signed it, it’s the law of the land. Then the judges are good at applying that to the facts that have come before them in that particular case. But not to go makeup policy or decide whether or not it’s a good policy.

David:

Yeah, the Ninth Circuit should have said, “Hey, we have a law here from 1952 passed when Truman was president. And we’re looking at it today.  So how do we apply today?” Not, “Oh, we don’t like this law today.  It was ok for Jimmy Carter and Bill Clinton. But today my opinions have changed so I don’t like the law anymore.”

No, you’re exactly right Rick.  What they’re supposed to do is look at that and say, “Here’s how it applies to the facts.” They apply the law. They don’t they don’t go through and make the law or strike the law down.

Rick:

And if the cultures changed,  society doesn’t like that, get your members of Congress to change that.

We Losing Our Knowledge Of America’s History

David:

That’s right. It’s the “Congress has to change it.” And by the way, one more guy at the Constitutional Convention who is a Federalist, who is a pro-federal government guy, who like the judges, is a guy named Luther Martin.

He’s one of the 55 guys at the Constitutional Convention. He is actually real close to the judges, in that he was the attorney general of Maryland.  And here’s what he said, “A knowledge of mankind and of legislative affairs cannot be presumed to belong and a higher degree to the judges than to the legislature.”

Judges don’t have a better opinion of public policy than the legislature because they don’t make public policy. It’s the legislature that does. And when you’re talking about public policy the judges defer to that because that’s not their job. They don’t make public policy. So, I mean, it’s a great question about Trump and what would have happened. But look how far we’ve shifted in today’s education that we would even consider that to be a question. And it’s a great question because it takes us back to answers we had in previous time. But man look at the difference from how far we’ve slid in in the last 20 to 30 years in our knowledge of American history.

Rick:

Yeah, no doubt about it. Gotta take a quick break.  When we come back we’ve got another question on the judiciary and it’s actually a way for folks to learn more about some of these things we frankly, we’ve believed about the courts for years.  It turns out to be false and it comes out of your CD, Five Myths of the Judiciary. It’s available at WallBuilders.com.  They can learn more. And also Constitution Alive dives deep into that as well. We’ll have links for both of those for you.  We’ll be right back on WallBuilders Live.

President Calvin Coolidge

President Calvin Coolidge said, “The more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”

Moment From American History

This is Tim Barton from WallBuilders with another moment from American history. Alexis Tocqueville, a political official from France traveled to the United States in 1831 and pinned his observations on the now famous book, Democracy in America.

Being from France, what he found in America was completely unexpected to him. He reported, “Upon my arrival in the United States. The religious aspect of the country was the first thing that struck my attention. The longer I stayed there the more I perceived the great political consequences resulting from this. In France, I had almost always seen the spirit of religion and the spirit of freedom marching in opposite directions. But in America, I found that they were intimately united and that they reined in common over the same country.”

Tocqueville recognized that it was Biblical Christianity and the morals it produced that made America great. For more information about Alexis Tocqueville and a positive influence of Christianity in early America go to WallBuilders.com.

Abraham Lincoln

Abraham Lincoln said, “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”

The Lower Courts

Rick:

Thanks for talking with us folks.  It’s Foundations of Freedom Thursday.  You can get more programs like this at our website WallBuildersLive.com. We’re jumping right back into your questions. The next one still on the judiciary is from Adam in Lynchburg, Virginia.

He said, “I’ve listened to your CD, Five Myths of the Judiciary and have listened to many episodes about the Supreme Court but it hit me today. I don’t know much about the lower courts. For instance, I understand that the Founders never meant for the Supreme Court to ever wield power and that they should only issue opinions. However, what about the lower courts such as the Ninth Circuit Court of Appeals? According to the original intent, are they supposed to only issue opinions without the power to enforce also?”

“Thanks so much!  Listen to episode after episode of WallBuilders Live, one after the other on road trips. All the best, and many thanks.”

That’s a great suggestion to folks.  David, they can’t catch a program, they can always go pick up and catch up on five programs at once on the podcast.

David:

And since this program has been dealing with judiciary, it’s a great idea also to get that CD, Five Myths Concerning the Judiciary. Because there are five things we are told today that are totally opposite to what the Founders said and what the Constitution says.

The idea of the lower courts, the Ninth Circuit, and those going down. I don’t know, there’s nearly a thousand federal courts I think across the United States.

Significantly, in the Constitution, they are all much weaker than the U.S. Supreme Court. So we’ve been talking about how weak the Supreme Court is, under the Constitution, under the original design, the lower courts were even weaker than that.

So, when you look at that the lower courts do not exist by the Constitution. The lower courts exist by Congress and they are beneath Congress and regulated by Congress and run by Congress.

The Ninth Circuit

People say, “Wait a minute, we’ve got three independent branches.” That’s one of those judicial myths. The Founding Fathers made very clear we do not have three co-equal branches.

By the way, you did not have an independent judiciary. The Founders were exceptionally clear about that. As Thomas Jefferson said, “Any power that’s independent is absolute also.” If you make an independent judiciary you’ve made an absolute judiciary.

They had in the Constitution all these lower federal courts are called, “the inferior courts.”

The inferior courts are the creation of Congress. Congress can wipe them out as they want to or put them in if they want to. After the decision came down against immigration, that’s why Newt Gingrich is out there saying, “Just wipe out to wipe out the Ninth Circuit.”

You’ve already seen in Congress, they’ve issued, they’ve dropped a bill to take six states out of the Ninth Circuit.  Letting California keep the Ninth Circuit, “They deserve it.” I’m sorry, I shouldn’t say it that way, but they’re both crazy enough for each other.

And by the way, I have to say, as often as I am in California, there are so many good people in California if they ever all got together and were convinced that they could do something they would. Because there are so many, all through the central valley there, and all over Southern California.

But they’re just convinced that there’s nothing they can do.  So as long as they have that they’re not going to do something. But there are now a number of measures even been dropped in Congress to do exactly what the Constitution permits and that’s just wipe out some of those areas, just take them off.

So, lower courts, they have much less power than the Supreme Court does and the Supreme Court, as the Federalist Papers told us, “Beyond comparison, the weakest of the three branches.” Beyond comparison. It’s not even close.

This is like putting Pop Warner football into some major league stadium.  Not even close. We’re talking that much a difference and that’s what the federal paper said, “Beyond comparison the weakest of the three branches.”

Rick:

Well, thanks to our listeners that sent in questions today.  We’ll have more of those for you next Thursday. If you’ve got some send them into [email protected] You’ve been listening to Foundations of Freedom Thursday here on WallBuilders Live!

Thomas Jefferson said, “In questions of power then let no more be heard of confidence in the man that bind him down from mischief by the chains of the Constitution.”