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A Historical and Constitutional Perspective On The COVID Crisis, Part 4 – David Barton At The ProFamily Legislators Conference: Do we really have three co-equal branches of government? How are governors’ “emergency powers” defined? Who should have the power of the purse? Are IRS audits constitutional? How many of our rights were violated during the Covid crisis? Tune in to find out!

Air Date: 02/25/2021

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

Rick:

Welcome to the intersection of faith and the culture. It’s WallBuilders Live, where we talk about today’s hottest topics on policy, and faith, and the culture, always from a biblical, historical, and constitutional perspective. And that’s exactly what we’re doing today. We’re actually going to be doing part four of a five part series on a historical and constitutional perspective of the COVID crisis.

This is actually a presentation David Barton gave just a few weeks back at the ProFamily Legislators Conference. And so today with part four, we’ll pick up right where we left off yesterday. If you missed the first three days, it’s all available at our website, wallbuilderslive.com.

That is also the place you can make a contribution, one-time or monthly, we appreciate your support. It helps amplify our voice and it gives us a chance to reach more people with the kind of truth that we’re sharing today and throughout this week with this series. So hope that you’ll consider doing that at wallbuilderslive.com today.

By the way, my name is Rick Green. I’m a former Texas legislator and America’s constitution coach. David Barton is the one that you’re going to hear from in this presentation, our cohost, and Tim Barton. Our other host is not with us today, because we’re doing this ProFamily Legislators Conference. But Tim’s a national speaker and pastor. You can book him to speak right there at our website wallbuilders.com.

For now, let’s jump right back in where we left off yesterday. Here’s David Barton with a historical and constitutional perspective on the COVID crisis.

Three “Co-Equal” Branches?

David:

Federalist paper number 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. No, 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 co-equal and three separate branches. And that’s just not constitutionally correct. So governors testing the limits of emergency powers.

Now, when you’re looking at emergency powers of governors, there’s been a lot of stuff we can point to, but this is where we’re finding out. And again, I’m talking collectively to all the states. A lot of states already have some of this stuff solved, they don’t have all the solved. Some states have areas solved, and other states don’t and vice versa. So you have to apply this to your state, however, it works. But what we’re finding is there were not enough definitions of what emergency power is.

And so lacking definitions, what we’ve seen is that governors have reached out in areas that were never intended, never designed, never planned. Give an example. Governor Sisolak issues proclamation stating that racism is a public health crisis. Now, once you announce a crisis, you get more powers. Or, racism, public health crisis, now I can consolidate power.

Here’s what we’re going to do with our schools. Here’s what we’re going to shut down the way businesses. We did the same thing we’re doing with COVID, except now we’re going to do it for the basis of racism. Or why don’t we just choose a bug?

We’ve got a bug we don’t like and let’s create a state emergency over that, which gives me more powers to deal with that. No, you’re not the one to deal with that, that’s what the legislature does.

Defining “Emergency” Powers

Mayor declares gun violence, is a public health crisis. It’s an emergency, so I’m going to have to take all guns away; that way, we can stop all the kill in the city because I have those emergency powers. California Governor declares a budget emergency. I don’t have to go with what the legislature says.

Because it’s a budget emergency, I can make the decisions on what we do with the budget. Hawaii governor declared a state of emergency amid homelessness crisis. I can get around the legislature by declaring an emergency.

So generally, legislators had declared states of emergency to be understood as something like a tornado or hurricane or, you know, some natural disaster. Nobody thought it was going to be philosophical emergencies like racism, or whatever it might be. So definitions now appear to be necessary, because governors got away with a whole lot because the definitions weren’t clear.

We just assumed that everybody understood what was meant by an emergency. And it’s just that you can’t make that assumption anymore. Now, you got to be really specific.

So narrowing down the definitions are going to be one thing. Governor Baker says, hey, vaping is a problem now, I’ve got to take over that and control. I’m going to shut it down for four months, not unless the legislature gave you authority to shut it down for four months.

And so this is where and just so many headlines, so many examples in area after area. So there’s got to be a redefinition in many states from that, so legislative definition has become necessary. But there’s a whole lot more than that.

Elbridge Gerry

Other things we point to that we got to be appointed, I’ve already raised some of this. Let me just introduce this section by going back to the Founding Fathers.

Elbridge Gerry, one of the guys who helped write the Constitution, he was a signer of the Declaration. He’s a governor of Massachusetts. And this is what he said back in the day. “The House is the immediate representative of the people and is a maxim that the people ought to hold the purse strings. Now, it’s interesting that in the Constitution, the House is the one that has to do the spending, not the Senate.

It says Senate can consent. In the US Constitution, a state Constitution, some of them are different. But the principle they had was the people hold the purse strings, and the one part of government that is closest to the people is the House, not the Senate.

And so that’s why the Constitution stipulates that you can’t have a tax increase in lesson comes through the House side of the legislature, and you can’t have any spending unless the House makes the appropriation. So again, some states do it differently, but they were all understood to be reflecting the Federal Constitution.

So some states lacks specificity because everybody knew what the federal Constitution was. We didn’t have to say it, because we’re bound by that under the Supremacy Clause of the Constitution.

So when you look particularly at all the states that were going there, and again, remember it is from the states that we sent delegates to write the federal Constitution, and they use the experience they had at the state level to say here’s how we’re going to do it here, but we’re also going to limit the federal government to only these areas.

A Moment from American History

Rick:

Alright, quick break, folks, that was David Barton, you were listening to, we’ll come right back to him. He’s giving a presentation at the ProFamily Legislators Conference on a historical and constitutional perspective on the COVID crisis. Stay with us, we’ll be right back on WallBuilders Live.

This is Tim Barton from WallBuilders with another moment from American history. The Reverend James Caldwell was a famous minister during the American war for independence. His sermons taught liberty and God’s opposition to tyranny. The British hated him and tried to kill him. So for his own protection, he would actually take loaded pistols with him into the pulpit and lay them beside his Bible as he preached.

In the 1780 Battle of Springfield, the Americans ran out of wadding for their guns, which was like having no ammunition. Pastor Caldwell ran inside a nearby church and returned with an armload of watts hymnals, the pages of which would provide the much needed wadding. He took this great Bible based hymnal, raised it in the air and shouted to the troops “Now put watts into them, boys.” This pastors ingenuity save the day for the Americans. For more information on Pastor James Caldwell and other colonial patriots, go to wallbuilders.com.

Rick:

We’re back on WallBuilders Live. Thanks for staying with us today. David Barton giving a presentation at the ProFamily Legislators Conference just a few weeks ago, let’s jump right back in where we left off before the break.

Who Holds the Purse Strings?

David:

When you look at what’s in the States, you have James Madison in the Federalist Papers talking about what the practice is in the States. He says the “House of Representatives cannot only refuse but they alone can propose the supplies requisite for supportive government.” In a word, they hold the purse. So this is the way the states had done it.

This is the way we’re doing at the federal government. You guys understand what the states do? The House holds the purse. That’s what it’s going to be in this new federal government. We’re just taking what’s in the States, because that that goes back to British policy as well.

The power over the purse may in fact be regarded as the most complete and most effectual weapon with which any Constitution can arm the immediate representatives of the people. This is the best thing you’ve got is to be able to control the spending of the governor or any other branch. So they point out, this is the best tool you’ve got to keep the governor from getting too far out of line. Now, the trick is how do you enforce this.

And by the way, let me show you the two Constitution clauses. Article 1, Section 7, paragraph one of the Constitution says “All bills for raising revenue”, that’s taxes, “shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.” This is why Obamacare was first challenged and taken the court and this is where robbers came down on the wrong side.

They said wait a minute. Obamacare started in the Senate. This is a tax on the people. We’re having to tax the people for Obamacare.

It Must Originate in the House

It can’t start in the Senate, has to start in the House. And Roberts found a way to do gymnastic events and contort himself into something that they said no, that’s really not what it is, is not really a tax. It was a tax. So that’s was what the stipulation was.

If you’re going to tax the people, it has to start in the House, not the Senate. Now, again, state constitutions may be different, but they assumed this basis. This was the assumed knowledge of the day.

Now you also have, this one I think is the more important one for states. Article 1, Section 9, paragraph second. “No money shall be drawn from the Treasury but in consequence of appropriations made by law.”

You can’t get into spending anything. And this is where it’s interesting. The governor say, well, no, no, the federal government gave us 8 billion to spend the state for COVID.

Well, great. But you can’t spend it unless it’s authorized by law. The fact that President may have given you money to spend for COVID doesn’t mean it’s yours to spend.

He gave it to the state and the state has to appropriate it by law, how it’ll be spent. Which is one of the complaints we’ve got in Texas. 5.2 billion spent by our governor with no appropriation. Well, it was money that came from the federal government for COVID. Great. Let the legislature say how it’s going to be used, not the governor say how it’s going to be used.

So this part there, “no money”, that part about no money is really the big clause here. “No money can be spent without an appropriation by law”, that’s called the Appropriations Clause. It’s one of the clauses of the Constitution, the Appropriations Clause. However, what you see as a result, look what’s happening in the states.

Checks and Balances

Governor Walz spending Minnesota’s federal COVID money his way, whether the legislature likes it or not. That by itself is a real problem. Just the headline. You don’t spend money the way the legislature doesn’t want to spend. That’s not the way this works. The power to spend all money comes out of the legislature.

Gavin Newsom’s budget gives governor too much power over COVID-19 spending, top Democrat says. That’s his own party. But it’s the legislature saying wait a minute, this money came to the state, we’re the ones that appropriate that money, not you.

Kay Ivey blast legislature over restraints on, Kay, actually, the legislature telling her how to spend, you can’t tell me how to spend money. Yeah, I can. That’s a constitutional principle.

You have the same with Mississippi legislature overwhelmingly, both to prevent Governor Reeves spending federal Coronavirus money. So that’s what is supposed to be, is the legislature says how the money is going to be spent, doesn’t matter where it came from. It has to be appropriated. The Appropriations Clause says it has to go through the legislature.

So the point is governors are spending money when they shouldn’t be. And even if we say it’s a crisis, it doesn’t change the constitutional principles that’s out there.

Alexander Hamilton in federalist number 73, said “Each branch is furnished with constitutional arms for its own effectual powers of self-defense.” What are those constitutional arms? In this case, is the power of the purse. Just hold the money out.

Just hold money back from… Don’t fund electricity that the governor’s mentioned for the next two years, you know, just defund something. Real simple. You got the power of the purse, use it.

Separation of Powers

You know, make it punitive if you need to. But you got to have a separation of powers. You got to have checks and balances. And the way you do that is with the purse strings.

So it’s a fight. It’s going to be. No Governor’s going to give up power they’ve accrued. Nobody does that, except George Washington who laid down power he had been given, maybe the only example in history where somebody laid down power they’d been given.

So that’s just aspect there. So that Appropriations Clause helps do checks and balances and separation powers. Let’s go to another clause here.

“Although the Constitution mandates that persons are equal and have equal protection for the rights, many governors and mayors preferred some individuals and enterprises above others, deeming them more essential and granting them more rights and opportunities.” That’s picking winners and losers. Headlines are abundant.

Abortion clinics open, but churches have to close, but liquor stores can remain open. Casinos are open, but churches closed. Marijuana dispensaries open. It’s winners and loser. We saw that with big box stores and mom and pop stores and everything else. So equal protection is not there.

We’re picking winners and losers. We’re not providing the same protection for everyone. That’s a problem.

Next one quickly. The Bill of Rights fully ensures personal privacy against government intrusion unless there’s a judicially issued warrant. This is one of the most fun parts of history to me of anything out there. James Otis in the year 1761 made an argument in front of the British court on what were called “Writs of Assistance”.

Constitution Alive!

Rick:

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.

Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know but it gets frustrating because they don’t know where to look for truth about the Constitution either.

Well, we’ve got a special program for you available now called Constitution Alive! with David Barton and Rick Green. And it’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the cradle of liberty and Independence Hall and to the WallBuilders library, where David Barton brings the history to life to teach the original intent of our Founding Fathers.

We call it The Quickstart Guide to the Constitution, because in just a few hours through these videos, you will learn the citizens guide to America’s Constitution, you’ll learn what you need to do to help save our constitutional republic. It’s fun, it’s entertaining, and it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive! with David Barton and Rick Green. You can find out more information on our website now and wallbuilders.com.

Rick:

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

Writs of Assistance

David:

The Writs of Assistance were essentially an open search warrant. As a British military officer, I can say I’ve got a Writ of Assistance. Here’s a writ from the government that allows me to go search Tim Brooks home.

Now I don’t know what I’m looking for, because the Writ’s not searched in. But I’m going to search his home till I find something illegal that I’m going to fill in the writ and say here’s what I was looking for and I just found it. So that’s called a Writ of Assistance.

And that’s what the British officials issued against Americans all the time. Matchmaking, too much noise, I’ve got to find a way to silence him. Give me a Writ of Assistance. I’ll go search his house till I’ll find something illegal, and then I’ll charge him with it. And then he’ll have to shut up because I can throw him in jail.

And so, when this case came, James Otis, who is a noted attorney, argued this in front of the judges. He says, “I will to my dying day oppose with all the powers and faculties God has given me, all such instruments as slavery and villainy as a writ of assistance is.” He says “It is the worst instrument of arbitrary power, and is destructive of liberty and the fundamental principles of law.

One of the most essential rights is the freedom of one’s house. A man’s house is his castle.” Now remember that phrase. “A man’s houses castle, but these writs totally annihilate this right. It is a power that places the liberty of every man in the hands of every petty officer who may reign secure in his petty tyranny, and spread terror and desolation around him.”

A Man’s House is His Castle

Now, this is his argument, and he concludes it by saying both reason and the Constitution are against such writs. That concept of writs of assistance is what specifically led to the Fourth Amendment of the Constitution, specifically. It says “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants like a Writ of Assistance shall be issued, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

In other words, if I want to go into Tim’s office, I have to have a judge that says, what are you looking for? Well, I’m looking for whatever. I have to specifically say I have to have probable cause that he has it and that it’s illegal for him to have it.

And it has to be supported by oath or affirmation. Somebody’s got to swear that they’ve seen Tim with illegal drugs in his house or whatever. I can’t just go looking until I find something. I got to know specific and that’s all I can go looking for.

And so that’s what it came out of was that speech on Writ of Assistance. This thing on Writ of Assistance was so big that came out of this court case. Remember this phrase, because this phrase has taken over into the Bill of Rights. Specifically, in looking, John Adams was in court that day when James Otis argued that, and this is what John Adams said about that one legal clause.

1761, he was in court, he said, “American Independence was then and they’re born. Every man and the crowded audience went away as I did, ready to take arms against Writs of Assistance. Then there was the first scene and the first act of opposition to the arbitrary claims of Great Britain. Then there was the child independence born.

In 15 years, namely in 1776, Independence grew up to manhood and declared himself free.” As far as he’s concerned everything about the American Revolution started with Writ of Assistance. “A man’s home is his castle.”

The Castle Doctrine

Now, you take that. “A man’s home is his castle”, and let’s just look at a couple things. The Second Amendment, we have what we call the Castle Doctrine.

Why do we have the Castle Doctrine? Because a man’s home is his castle. So you have the right to defend your castle.

Matter of fact, James Wilson signer of the Constitution, original Supreme Court Justice said, if you get robbed in your home, it is your fault, not the police’s fault, because every man’s home is his castle: you’re supposed to defend your castle.

Self-defense of your home is not the jurisdiction of the police, that’s your jurisdiction. Every man’s home is his castle. So he argued for self-defense and that way that, you know, you can call the police if you want to, but it’s your responsibility. And that’s where we get the Castle Doctrine.

The Third Amendment, same thing. Third Amendment dealt with the fact that British troops put themselves into private homes to stay. It’s a lot nicer than any other place and the officer to put themselves in great homes.

Third Amendment says you can’t quarter military troops in home. But the deal is, government can’t come into your home and set up shop in your home. I mean, that’s what was after, it’s my home.

The whole concept was a man’s home is his castle. Government can’t come in here and set up shop in my home. You can’t bring military troops in here and leave them in here. My home is my castle.

You have the same thing, by the way, in the scriptures. It’s interesting in Scriptures, you have the laws and surety and if you loan something to someone else. So a poor guy needs a loan, he has collateral that he’s going to give you. Look how this works.

The Fourth Amendment

Deuteronomy 24 says when you make a loan of any kind to your neighbor, do not go into their house to get what is offered you as pledged or collateral. So they’ve given you collateral, don’t go into this house, stay outside and let the neighbor to whom you are making the loan bring the pledge out to you.

So even collecting collateral, you don’t get to go in their home, you’d let them bring it out. Why is that? Because a man’s home is his castle. Even in scriptures, you don’t go into somebody else’s home. You let them bring stuff out to you.

So this was a huge deal. The Fourth Amendment I’ve mentioned, showed you that that’s what it came from. But let me throw, this is not related to COVID, but I’m going to throw the thought out anyway.

I think that specifically, undercuts any concept of IRS audits or bureaucratic agency audits. Because what happens an IRS audits, alright, open up all your financial records, I’m going to go through until I find something wrong, and then you’re going to pay taxes on it.

Now, if you want to check, now remember what it says. If you want to look at my papers, you’re going to have to have a warrant with probable cause supported by oath or affirmation and describing the place and the thing to be searched. You want to see check number 478 through 507?

Fine. Who swore that I had something wrong there? See, what we’re doing is saying, hey, come in and look at my, it’s an audit. Okay, I’ll open up all my books to you until you find something wrong.

That is a Writ of Assistance. They don’t get to look at my papers, my houses, my persons, or my effects, unless they go through all of that.

Rick:

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 our 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 that impacted the entire world from America. To find out more, go to wallbuilders.com and check out The American Story.

A Moment from American History

This is David Barton with another moment from America’s history. At the time of the American Revolution, numerous other nations also had revolutions. Yet 200 years later, America is the only of those nations still under its original form of government.

Is this just good luck? Not according to Founding Father, Benjamin Rush. He declared, “I do not believe that the Constitution was the offspring of inspiration. But I am is perfectly satisfied that it is as much the work of a divine providence as any of the miracles recorded in the Old and New Testament.”

George Washington agreed. In fact, he declared, “I should be paying to believe that the United States have forgotten that divine interposition which was so often manifested during our revolution, or that they failed to consider the omnipotence of that God who is alone able to protect them.” Our founders acknowledged that our national success had come from God.

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

Rick:

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

Where American Independence Was Born

David:

We hear so many times to bureaucratic audits. You know, we want… No, get a writ, other than a Writ of Assistance. You know, get a warrant or something.

So that’s just commentary on the side. I’ve talked to some constitutional attorneys that say yeah, that’s really true, and are willing to defend somebody who gets an IRS audit because they think it ought to be taken to court because it is a Writ of Assistance. If you’re going to look at my papers, you got to have specific probable cause for what you’re looking for. You can’t just look till find something.

Nonetheless, this concept of you can go through the Bill of Rights and trace nearly all of them back to this concept. Now, it’s a little different when you get into the due process clauses what happens in courts of law Confrontation Clause. But due process and right to privacy come out of that phrase.

And it goes back to the Writs of Assistance. That’s why John Adams says that’s where American Independence was born, it was right there with the Writs of Assistance. This thing about every man’s home is his castle, half the Bill of Rights come out of that concept.

The due process clauses in the constitution ensure that individuals innocent until proven guilty. You have 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.

Third Amendment

We’ve seen that headlines. “Couple under house arrest after refusing to sign COVID-19 quarantine.” This was interesting.

You go on a vacation and you go out of state, you have to quarantine yourself in your hotel, and you have to have an ankle bracelet. Remember that thing about government can’t set up shop in your home? Now, I’ve got government living in my home with my ankle bracelet.

They’re looking to see where I go and… No, you can’t set up shop in my home. That’s the Third Amendment.

Now, the Third Amendment talked about you can’t have military troops in your home. But the principle was, my home is my castle, you don’t come into my castle. You stay out of my castle unless you’ve got a judicially issued warrant.

So this ankle bracelet thing is taken off in COVID. Hawaii’s latest travel plans, “electronic bracelet, no more quarantine”. Fly to Hawaii, put yourself in isolation for two weeks or put an ankle bracelet on so that we know where you are at all times and then you can go enjoy the island.

“Test positive, refuse to self-isolate, get an ankle bracelet.” Not due process involved here. This is just mandatory bureaucratic edicts.

We’re lacking all the stuff that goes from the Bill of Rights here. But because of this, we have an economic boom with ankle bracelet companies now. We have an economic resurgence coming, because I mean, this again is a real problem and it goes back to due process right to privacy.

A Historical and Constitutional Perspective On The COVID Crisis, Part 4

The Bill of Rights fully ensures personal privacy against government intrusion unless there’s a judicially issued warrant. Yet many governors and mayors order tracking and tracing of American citizens, even forcing restaurants, hotels, and other businesses, restaurants keep a log of customer’s names and provide information and provide to state and local officials. 

Washington State directs restaurants to log all eat-in customers in order to reopen. So I’ve got to report to the government who my customers are when they come into my business? No, that’s a real problem.

Rick:

Alright, friends, out of time for today. So tune in tomorrow, and we’ll pick up right where we left off here with David Barton. It’s a presentation he gave at the ProFamily Legislators Conference on the historical and constitutional perspective of the COVID crisis. Thanks so much for listening today. You’ve been listening to WallBuilders Live.