A Historical and Constitutional Perspective On The COVID Crisis, Part 3 – David Barton At The ProFamily Legislators Conference: Is the Constitution valid during times of emergency? Can a governor suspend laws? Does America have a government of laws or of men? What kind of reset do we really need? If we were to list grievances experienced during the lockdowns, what would the letter to our government say? Are the branches co-equal? Tune in to find out!

Air Date: 02/24/2021

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note: As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. 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 or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith and the Culture


Welcome to the intersection of faith and the culture. It’s WallBuilders Live. And today you’re tuning into part three of a five-part series from David Barton, on the historical and constitutional perspective of the COVID crisis. Now, if you missed the first two parts, don’t worry, you’re still going to get some great information today. But then later, you can go back and pick up those first two parts by going to wallbuilderslive.com. We’ll have the entire five-part series available by the end of the week right there at our website.

Let’s jump right back in where we left off yesterday. Here’s David Barton on the Historical and Constitutional Perspective of the COVID crisis.

Time for a Reset


It is time to reset our state and local governments, restoring them to their constitutional design and objectives, preserving limited government within constitutionally established parameters. Now, that’s the principles. Here we start to transition to some of the grievances.

During the 2020 COVID-19 pandemic, the balance of powers between the three branches was severely disrupted, and as a result, the American people were stripped of many individual liberties with constitutional rights usurped or suspended. To prove this, let facts be submitted to a candid world. And this is where the Declaration then goes into its grievances.

So they’ve set out the principles, now they give 27 examples. We don’t have 27 examples. But here’s the categories that we saw.

Constitutionally, the legislature makes laws, the executive applies and enforces them, and the judiciary determines violation of the law and applies penalties established by the legislature. But many governors, as well as mayors and other executive officials, use sweeping executive orders to subject us to a jurisdiction back to the Declaration, subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws. Our laws do not allow anything other than the legislature to make policies for the state. I mean, it’s just real simple. I’ll show you that from the Founder’s writings just a moment in the constitutional clauses.

“Thereby giving their assent to their acts of pretended legislation by declaring themselves invested with power to legislate for us in all cases whatsoever,” taking emergency powers and say I can do anything I want with emergency powers, even unilaterally suspending the operation of existing constitutionally enacted laws. One of the most amazing things I’ve seen in the state of Texas is our governor, Governor Abbott keeps saying, “I suspend this law.”

Suspending the Law?

That’s in his executive orders. I hereby suspend law number whatever… That’s a real problem when you can just by the stroke of a pen- but that’s happening with executive orders all over the country. We suspend state laws because it’s a time of emergency. No, the Constitution doesn’t go away in times of emergency, that’s when you need it more, not less is in times of emergency.

Next grievance: The Constitution requires that spending occurs only through legislative appropriations. Yet, many governors bypass legislatures and spent massive amounts of state funds at their sole discretion during the emergency, thereby deliberately negating the checks and balances inherent to the constitutional separation of powers.

Next grievance: Although the constitution mandates that all persons are equal and have equal protection for their rights, many governors and mayors preferred some individuals and their enterprises above others, deeming some more essential and granting them more rights and opportunities, thus picking winners and losers.

Next grievance: The due process clauses in the Constitution ensure that individual’s innocent until proven guilty. Yet, many governors and mayors held without proof that every citizen including the healthy were guilty of spreading COVID and therefore required their freedom of movement and freedom of association to be restricted.

Next grievance: The Bill of Rights fully ensures personal privacy guests government intrusion, unless there’s a judicially issued warrant. Yet, many governors and mayors ordered tracing and tracking of American citizens, even forcing restaurants, hotels, and other business establishments to keep a log of customers names and the contact information provided to state or local officials.

Extending Emergency Powers

Furthermore, many governors, mayors, and similar executive officials have extended emergency powers beyond their intended or designated time allotments and excluded legislature from the decision-making process in the emergency, refusing to allow the legislature to offer any reprieve from their often burdensome laws and policies. They’ve invaded and restricted many inalienable rights including the First Amendment’s guarantees for freedom of religion, petition, assembly and speech along with many other rights similarly enumerated in the Constitution Bill of Rights.

They’ve ignored the inalienable natural right of individuals to work, earn a living and provide for their families. Instead, seizing control of businesses in the free market and “cutting off our trade with all parts of the world-”, which was a grievance. The king took over all the business stuff in America, he started regulating all businesses. “and the rest of the states and nation, thus shuttering the private sector and destroying the public economy.

They held themselves above and free from the heavy rules they imposed on citizens, thus transform America from a government of laws.” -Not of man into a government of men, not of laws. It’s interesting how many governors violated the very mandates that they put out and I’m going to show you examples of that.

So while it applies to you guys, it didn’t apply to me because I’m issuing the mandates. Welcome to King George the third, that was the same thing they had back then. A government of men not of laws. They wanted a government of laws, not of men.

“They’ve usurped private practice of medicine subjected to the purely political controls, forbidding potentially life-saving diagnostic surgeries such as cancer detection, biopsies, mastectomy for breast cancer, cardiovascular surgery, other orthopedic surgical procedures, organ donations and transplants, and other medical procedures.

Public vs. Private Health Officials

They’ve erected a multitude of new offices and sent hither swarms of officers to harass our people,” language from Declaration, “by empowering unelected handpicked medical officers to enact invasive and restrictive public policies carrying the force of law against the advice of other equally credentialed medical officials who espouse restraint and urge preservation of the constitutional principles of liberty, the conflict between public health officials and private health officials.

Public health officials have a platform, private health officials don’t, and so we listen to public health officials even though private health officials say, ‘that’s really bad medicine, that’s bad stuff.” So we’ve gone with the public stuff instead of the other.


Got to interrupt for a second here, folks, we’re going to take a quick break. We’ll be right back and join David again at the ProFamily Legislators Conference.

A Moment from American History

This is Tim Barton from WallBuilders with another moment from American history. Too often today history education excludes great black heroes from the American founding, such as Lemuel Haynes. Haynes abandoned as a baby pioneer churches across upper New England. He became the first black American to pastor a white congregation, to receive an honorary master’s degree, and to be ordained by a mainstream Christian denomination, the Congregationalists.

He was a soldier during the American Revolution and in his churches on George Washington’s birthday, he regularly preached sermons honoring George Washington. Even late in his life, he expressed his willingness to go back to battle if necessary to protect America, which he called a Sacred Ark. American history is filled with numerous examples of black heroes, who are largely ignored by mainstream education today. For more information about Pastor Lemuel Haynes and other colonial patriots, go to wallbuilders.com.


Welcome back to WallBuilders Live. Thanks for staying with us. Let’s jump right back in with David Barton speaking at the ProFamily Legislators Conference on a Historical and constitutional perspective of the COVID crisis.

Parental Rights Threatened


“We’ve ignored the fundamental right of parents to direct the educational upbringing of their children.” There’s three Supreme Court cases that use that language, “thus authorizing agencies such as CPS to investigate and threaten parents who failed to practice social distancing, or who reopened their businesses in an effort to feed and provide for their families.

Many governors similarly ordered that universal vaccines will be mandatory, rejecting both parental rights as well as the constitutionally mandated protections for the rights of conscious. They transgress the explicit constitutional protection against interfering with the free exercise of religion.

Furthermore, many governors and mayors have been deaf to the voice of justice and the normal bonds of humanity. Instead, mandating unhealthy desocialization and isolation of citizens, resulting in increased domestic violence and child abuse, swelling rates of depression, suicide, even depriving elderly citizens and nursing homes of interaction with their own families. They have prohibited pastors, priests, bishops, and rabbis from undertaking their ministerial duties, including comforting the dying who are forced to face a lonely death, even forbidding churches and synagogues from holding funerals for their loved ones.

More specifically, and even ironically, many governors and mayors have permitted big corporations to stay open, but force mom and pop shops to close, destroying family’s livelihoods and imposing a death sentence on their businesses. They forced churches to close, but allowed casinos, liquor stores, and marijuana shops to remain open. They’ve arrested pastors, Christian, small business owners, sidewalk pro-life counselors, but empty prisons releasing rapists and murderers onto the streets of our communities. They silenced the voice of religious worship and encourage the voice of riot and protest.

Unequal Treatment Under the Law

They punished elderly church congregants who peacefully stay outside in their cars to listen to a church service on the radio, but allow rioters to gather and violence to burn police stations, banks and businesses. They have prohibited elective surgeries to prevent cancer or secure organ transplants, but they allowed elective abortions.” Then here’s the kind of conclusion. You go through the grievances, remember the conclusion.

“Seeing these and many other examples of unjust, unequal and often arbitrary treatment as citizens, we have appealed to the kings about the mayors and governors with justice and kindness and have begged him or them by the ties of our common kindred to disavow these wrongful seizures of powers, but these pleas have fallen on deaf ears.

We, therefore,” and this is in conclusion of the Declaration, “we, therefore, the state representatives of the United States of America, are appealing to the Supreme Judge of the world  [inaudible 09:31] of our intentions to do in the name and by the authority of the people we represent, solemnly publish and declare that these United States are ruled by written laws at the federal and state constitutions established first and foremost to protect our God given rights and preserve to the people a republican form of government by which public policy is formulated in a constitutionally specified manner, thus preserving American and its states as a government of laws, not a man.

Committing ourselves to the support of the principles set forth in our Constitutions and enumerated in this document with a firm reliance on the protection of divine providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor. And we’ll seek to enact measures that will reset our state governments and restore an adherence to core constitutional principles by statutorily providing better definitions, limitations, and enforcements in order to reestablish the constitutional doctrines of separation of powers, limited government, rather than the growth and consolidation of government powers. Due process, federalism- reasserting the non-enumerated rights of the states, and free markets as well as increasing basic constitutional training for government employees especially in law enforcement agencies.” So that would be my shot at what I see in this thing.

The History Behind the Principles

(Audience clapping)

Thanks, guys. Now, let’s go back and look at the history behind some of this stuff. This is where I get kind of excited on how-The Bible says there’s nothing new under the sun. So all the changes of technology, the human innovations are the same, and it’s interesting to see how many of the things that happen 250 years ago are still happening today, just with different technology. So let’s do a little history on this.

So I’m going to go back and take some of these grievances and kind of look at it. Remember, constitutionally, the legislature makes laws, the executive applies and enforces them, and the judiciary determines violations of the laws and applies penalties established by the legislature. But many governors, as well as mayors and similar executive officials, use sweeping executive orders to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws, thereby giving their assent to their acts of (Inaudible 11:49) legislation by declaring themselves invested with power to legislate for us in all cases whatsoever, even unilaterally suspending the operation in existing unconstitutional acted laws.

Now examples, alright. Wisconsin legislature sues to block enforcement of governance stay-at- home modern. Notice this. The governor said so, the legislature disagreed.

Legislature having to sue their governor because he’s enacting policies that legislature doesn’t agree with. Policies come from the legislature, not from the governor. There are some things that can be done by the governor constitutionally, but lawmaking is not one of them. You have the same with other states.

Struggles Over Power

Southern Illinois lawmaker sues the governor for stay at home order. You have Michigan House, the Senate sue governor Whitmer calling emergency powers invalid. Remember she kept extending the emergency time after time after time- the legislature said no, no, that’s not what we did. We told you this many days and not more. So- went to court, the court sided with the legislature.

Republican lawmakers sue Governor Brown over COVID-19 mandates. Kansas governor sues the lawmakers who revoked her limit on church gatherings. Interesting. She said you can’t have church gatherings, the legislature came in and said yes, you can. 

She sues the legislature because, “I’m the one who tells people whether they can go to church or not.” You know, yeah, thank you, Kansas, there you go, pray for the Kansas legislators. Exactly.

But notice the conflict between the branches going on here. Who makes policy? “I’m the governor, I make policy.” No, no, legislature makes policy. Others – Texas GOP lawmakers sue governor over virus tracing contact. Arkansas lawmakers sue over states Coronavirus restriction. So you see the tension that exists between the two branches over this.

Now, going back historically, the power struggles between the branches are not new. I’m going to take you back to the Federalist Papers. Federalist Papers, as you may recall, were written by James Madison, John J. Alexander Hamilton. They’re the best commentary on the Constitution.


Quick break, friends, we’ll be right back and we’ll jump right back into David Barton’s presentation. Stay with us on WallBuilders Live.

Patriot Academy

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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.


Welcome back to WallBuilders Live. Thanks for staying with us today. We’re going to dive right back into David Barton’s presentation on a Historical and Constitutional Perspective on the COVID crisis.

Discovering Original Intent


In the Federalist Papers it says very simply, the Federalist may be fairly enough regarded as the most authentic exposition of the heart of the Federal Constitution, as understood by the body which prepared and they extorted, which accepted it. If you want to know what original intent is, this is what we were thinking when we did the Constitution and this is what people thought when they ratified the Constitution. Federalist tells you the original intent from start to finish on this thing. So let’s look at original intent on the branches, the conflict.

Federalist 51 says the legislative authority necessarily predominates. If you’ve been told there are three coequal branches of government, get that out of your mind. That’s modern propaganda. That is not the way it was done originally. The legislative predominates. By the way, let’s go to Federalist 78, which says the judiciary is beyond comparison, the weakest of the three departments of power.

Now, how can they be coequal if one predominates, and one is without comparison, the weakest? You see, that’s original intent. So the courts have been telling us for a long time they’re one of the three coequal branches. That’s great propaganda to elevate them to a position they were never supposed to hold. Nonetheless, you go back to original intent. So you look what we got here. Legislative predominates, judiciary is beyond comparison, the weakest, the executive’s between and the executive is not the most powerful, nor is that the weakest, it comes between the two, because Federalist tells us who’s the strongest and who’s the weakest. So, again, there’s nothing about coequal branches in that at all.

So legislative supremacy is what you find in the Federalist Papers. It’s interesting to see that Federalists, they’re not the ones who came up with that. All the philosophers we relied on in writing our documents said the same thing. And I just want to take you chronologically through how this was dealt with by the people we relied the most and then how we incorporate it in America.

Two Treatises of Government

I’m going to take you back to John Locke, in 1690, he did the Two Treatises of Government. That is one of the three most cited authorities in the constitutional founding era. From 1768-1805, political scientists had documented John Locke as one of our top three sided individuals by the Founding Fathers.

So the Two Treatises of Government, actually, Richard Henry Lee, who signed the Declaration of Virginia, he said that they, “copied the Declaration out of theTwo Treatises of Government.” That’s how much influence it had on our thinking what we did in the Declaration.

So John Locke explains it this way. He says “The first and fundamental positive law of all representative of governments is the establishing of the legislative power as the first and fundamental natural law. He says this legislative is not only the supreme power of the commonwealth, again, that’s why the legislative predominates the supreme power, but it’s sacred, and it’s unalterable in the hands where the community have placed it.

Now, the community, did they give the lawmaking powers to the governor or to the legislature? They gave it to the legislature. It’s unalterable in the hands where the community had placed it. The legislature cannot transfer the power of making laws to any other hands, can’t go anywhere else. Since it is a delegated power from the people, they who have it cannot pass it on to others. So if Matt Staver gives me something to keep for him, I can’t give it to somebody else to keep.

He gave it to me to keep, I have to give it back to him when he wants it. I can’t give it to somebody else and he goes to them. He gave me that thing to keep and so I have to keep it until he wants it back. The only way you can change that is that the people change it.

Constitutional Tools of Self-Defense

The legislature can have no power to transfer their authority of making laws and place it in other hands. So we have to understand that, otherwise, we will let the governor come take it. Hey, let me keep that for you. No, no, you don’t get to keep that for me. That was given to me by the people and you can’t take it from me. We’re not giving you that authority.

See, that’s where the branches have to push back. We’re going to look at a minute what the Founding Fathers called the “Constitutional Tools of Self-defense”. How does one branch push back against the other?

So James Otis, next picks this up, you saw 1690. James Otis is the guy who mentored so many of the New England Founding Fathers. James Otis mentored Sam Adams and he mentored John Hancock and so many others. He was one of the early great thinkers, brilliant, brilliant mind. I’m going to use James Otis several times today.

In 1765, he wrote the Rights of Colonists Examined. This is when Great Britain is starting to press on us and start to take away some of the rights we’ve enjoyed, as British colonies. So he says, the legislative cannot transfer the power of making laws to any other hand. S

ee, this was because in America, we had legislators who were making laws and King George III said, yeah, but I disagree with that. No, king, you don’t get to make the laws, we have legislators here. So this is where they’re starting to assert that power in America. See, John Locke had already put that out there in England and the work he did.

Now in America, we built America on that but King George III is stepping in as an executive and say, no, I can trump what the legislature does, I can trump your lawmaking powers. And they’re saying no, you can’t. I mean, this has been established in England forever.

Separation of Powers

Then Thomas Jefferson picked it up in 1781, and notes in state of Virginia. This is a book written back to French officials who wondered how American government operated. And so Jefferson is telling the French how the American government operates. He reaffirms the same principle.

He says “Government has laid his foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. So lawmaking goes over here, the enforcement of laws goes up here, and the adjudication of laws goes over here.

But one person can’t do lawmaking and execution of laws, you can’t do that, which is what governors are doing at this point. And by the way, some of the governors have actually got into the adjudication part of it as well.

The time, Jeff and I love this, the time to guard against corruption and tyranny is before they shall have gotten hold on us. It is better to keep the wolf out of the flock than the trustor removing his teeth and talents after he so have entered.


Final break of the day, folks, stay with us. We’ll be right back on WallBuilders Live.

The American Story

Hey, guys, we want to let you know about a new resource we have here at WallBuilders called The American Story. For years, people have been asking us to do a history book and we finally done it. We start with Christopher Columbus and go roughly through Abraham Lincoln. And one of the things that so often we hear today are about the imperfections of America, or how so many people in America that used to be celebrated or honored really aren’t good or honorable people.

One of the things we acknowledge quickly in the book is that the entire world is full of people who are sinful and need a savior, because the Bible even tells us that all have sinned and fallen short of the glory of God. And yet what we see through history and certainly is evident in America is how a perfect God uses imperfect people and does great things through them.

The story of America is not the story of perfect people. But you see time and time again how God got involved in the process and use these imperfect people to do great things and impacted the entire world from America. To find out more, go to wallbuilders.com and check out The American Story.

Moment from American History

This is David Barton with another moment from America’s history. Our Founding Fathers, despite their common love for America did not always agree with each other in politics. Such was the case between John and Samuel Adams. John was the leader of the Federalist Party and Samuel was the leader of the anti-Federalist Party. Consequently, political disagreements were not unusual between these two.

On October the 4th 1790, Sam wrote john and told him “Let ministers and philosophers statesmen and patriots unite their endeavors to renovate the age by educating their little boys and girls and leading them in the study and practice of the exalted virtues of the Christian system.” Two weeks later, John wrote back and told Samuel that on this issue, they both agreed. While these two prominent Founding Fathers disagreed on much, they both agreed on the importance of educating the next generation and the principles of Christianity.

For more information on God’s hand in American history, contact WallBuilders at 1808REBUILD.


We’re back here on WallBuilders Live, we’re going to dive right back into David Barton’s presentation. Here’s David at the ProFamily Legislators Conference

Creating New Provisions


Whole lot easier to not let the governor get into taking your legislative power than it is to try to get it back once he’s taken it. And that’s what I’m saying. A lot of the laws you may pass are going to get vetoed, and you’re going to have to be able to override that veto. You know, in Texas, we’re going to have to do a lot of things.

We want to actually create a provision whereby the legislature can call itself in a session when it’s to, because there’s no way the governor is going to call the legislature into session, let them change the policies he’s making. That isn’t going to happen.

So that the legislature has to be able to convene itself as it needs to. So you know, that may take a supermajority,. Maybe it takes 60% of the legislature convenes. But there’s got to be some ways to push back on this. And so but as Jefferson says, a whole lot easier to not let that happen than to let the wolf get in there and try to deframe him after he starts eating the sheet. So that’s Jefferson in 1780.

John Adams and 1787 he did this book, “The Defense of the Constitution” as governor of the United States of America. That’s not the US Constitution. At this point, he’s defending the state constitutions, which is why it says Constitutions of government. We’ve all the states have written the Constitution, now he’s defending the principles. And this is written while he was in England. So he’s showing the English how we do our states and what we do in our states.

And so this book that he wrote three volumes set, he says the legislative and executive authorities are distinct, and the legislative power is naturally and necessarily sovereign and supreme over the executive. There it is, again. Legislative supremacy of the three branches, they’re not coequal. This one’s over the other.

A Historical and Constitutional Perspective On The COVID Crisis, Part 3

Alexander Hamilton in the Federalist Papers continues the same doctrine, which, well understood. He says it’s a nature of calamity to increase the executive at the expense of the legislative authority. Yeah, COVID, or civil war, or whatever else comes along. He said, actually war. It’s the nature of war, a disaster to cause the executive to take more power. I can solve this easier than you guys. There’s 150 you guys in Texas House, a whole lot easier for me to make a decision that for you guys to make it.

There’s always reasons why the executor can give that in times of emergency, I need to be the one making decisions. Can’t do that. And that’s what the Federalists points out is, hey, the way we’ve set up the Constitution, we don’t let the executive make more decisions in times of war, times emergence, in times of calamity. So that’s another one out of the Federalist Papers.

Federalist Paper 47, James Madison says, “The accumulation of all powers in the same hands may justly be pronounced the very definition of tyranny”, which is what we’re seeing. We don’t think of tyranny because we’re civilized when we have so much technology. Now, we got tyranny going on from a constitutional standpoint. So the same things they faced back then. Legislative supremacy, that was the doctrine they push really heavily. We have so screwed up our civics that we teach three coequal and three separate branches, and that’s just not constitutionally correct.


Alright, friends, we’re out of time for today. This has been part three of a five part series with David Barton, a presentation that he gave just a few weeks back at the ProFamily Legislators Conference. Tomorrow, we will pick up with part four. Thanks so much for listening to WallBuilders Live!