Slavery, Abortion, Kamala As President, And More – On Foundations Of Freedom: Why is abortion a states’-rights issue, but slavery was not? Will democrats have to evoke the 25th Amendment and remove Biden from office?  What is the difference between civil law and common law? Has there ever been a democrat president and republican vice-president? Today we’re answering your questions; so, tune in for an insightful Foundations of Freedom!

Air Date: 08/04/2022

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

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


You found your way at the intersection of faith and the culture. This is WallBuilders Live, and we are talking about the hot topics of the day from a biblical, historical and constitutional perspective.

And today, we’re specifically talking about topics that you want to talk about. So send in your questions. [email protected], [email protected] and we’re going to cover as many of those as we can. We dove into these questions to answer foundational questions about the principles, about how a nation works, about how to apply the Constitution, some of the historical questions of how America came about and became the nation that it is. And so send in whatever your questions are, we’ll get to as many of them as possible today.

And if you missed the last couple of weeks, you can listen to those previous Foundations of Freedom Thursday programs at our website, And at is also where you can make that one-time donation or you can make a monthly donation.

But all of those dollars are an investment in freedom, it allows us to reach more people, it allows us to go out there and add stations to this program and to have our legislators’ trainings and pastors’ trainings and youth training. And all the things that we do, your donations make that possible. So thank you to all of you that have been donating.

Take Action!

And thank you for listening. Thanks for being a part of this program just by listening. But I want to challenge you to act on what you hear. Host a constitution class. Run for office or help a candidate that’s running for office. But act on the things that we’re talking about here at WallBuilders Live. Let’s jump in to some of the some of your questions and answer those questions on this Foundations of Freedom Thursday.

Alright, David and, let’s dove into those questions. First one is going to come from Nina, and she’s asking about the overturning of Roe v Wade. Here we go. She said, “Dear WallBuilders, I have a question regarding the overturning of Roe v Wade. First of all, praise God for this prolife victory. But we know it doesn’t ban abortion, it just sends it back to the states. I’ve heard you talk about slavery and states’ rights, how it wasn’t a states’ rights issue.

Now, I am not defending slavery, we know it was wrong, but abortion is as well. Why is abortion a state’s right issue, but slavery was not? Can you clarify this for me? I hope my question makes sense. Thanks for all you do to help us think through these issues and have a biblical, constitutional and historical perspective.”

Nina, first of all, thank you for catching the byline of the program there and reiterating it, biblical, constitutional, historical perspective, that tells me you listen often and we appreciate you listening.

Great question, David, to of course, we’re we’ve been talking about this a lot on the road. I know all three of us and we all have our druthers, right. We would love to say it’s not a state right, you don’t have the right to do wrong or commit murder.

And we want to ban abortion throughout the country. But why is it that this is still a great decision even though it didn’t go ahead and say, hey, every person needs to be protected, included in the womb?

The Role of the Court


Well, it’s a great decision because it starts back on the right path. But it’s a bad decision in that it doesn’t get us back to where we should have been. And that is that this is inalienable right. But that’s the same way it was with slavery.

The difference is very simple. We passed the 13th Amendment and took it off the table. If we passed a Human Rights Amendment, which has been introduced in Congress since back in 1990 with Reagan, if we had a constitutional amendment that said you can’t have abortions, then it becomes an inalienable right for everybody, not a state’s right. The fact it’s a state’s right is better than having it a federal right, which is what it’s been since 73. But the difference is that constitutional amendment.


And I would say we totally agree with the idea that this is not really a states’ rights issue with the fundamental principle that what the Founding Fathers identified from the Declaration that we hold these truths to be self-evident, that all men are created equal, they’re endowed by their creator with life, liberty, the pursuit of happiness, and that to secure these rights, governments are instituted among men, deriving their just power from the consent governed, we believe that there is a God who gave rights to man.

And the first of the right is the right to life. Government’s primary purpose is to protect your God-given rights, and that includes not just a federal government, that includes state government. Because the Founding Fathers were saying, this is our philosophy of government. So government should exist to protect all of our God-given rights.

But the first of those they identified was the right to life. So certainly, this should not be a states’ rights issue. Where the Supreme Court did a really, really good job was, first of all, in recognizing that the federal government has no power over this issue, that this is not something in the Constitution.

Policy Vs. Principle

And they recognize that the federal government only has the powers the Constitution has granted to the federal government. Where they further did a really good job was they recognized the role of the court is not to make legislation, where it is very different from previous courts, as previous courts would have come out and said that’s wrong and here’s what we’re going to do and they would have legislated from the bench.

It is refreshing that we have justices who are not creating legislation from the bench, even though in this case we would have agreed with the idea behind the legislation. But the policy would have been wrong, even though the principle would have been correct because the judicial system is not created to make policy or make legislation. That is not one of the jurisdictions they have as a judicial branch.

Where I would disagree with the Supreme Court is when they said this needs to go back to the states and the states need to resolve it. Well, this is not something the states need to resolve. But dad, your point, the way that the slavery issue, for example, was resolved is we had to do a constitutional amendment where we said that this is something beyond the power of the states, that states don’t have the authority and ability to determine if their state is going to be a proslavery and antislavery state. We took slavery off the table.

This is something we have discussed probably in a big conservative realm for a long time as one of the needs for a constitutional amendment to protect the right to life. And actually, it’s one of the things, if you look at even some of the movement of Convention of States, there are several amendments that are proposed, whether it be a balanced budget amendment, whether it be now there’s everything from the southern border to term limits.

God-Given Rights

But even things like amendment that would recognize the right to life and that would ban abortion, these are things that probably realistically have to become now constitutional amendments in order to get these things protected. Because very similar to the era of the Civil War or the build up to the Civil War, the earlier 1800s to early mid-1800s, you’re going to have some states that have very radical political leaders who are not going to take an anti-murder position in the issue of abortion, or right, back in the early 1800s, they’re going to be in antislavery position.

And so they recognize we’re in slavery, we had to do a constitutional amendment. And the Constitution does not require that every state agrees on the amendment, it requires that a significant majority, three-fourths of the states have to agree on the constitutional amendment for it to be ratified. But that means that you can have states like California and New York who say, we don’t like this. But if the vast majority, the overwhelming majority of America agrees on the constitutional amendment, it can be ratified. And I do think that’s a process.

But the reason we can praise the Supreme Court is they did not legislate from the bench, which is really, really good, and they recognize that the federal government has no say in the abortion issue. Now, as we’ve already pointed out, we’ve talked on the program many times before, we really don’t think this is a state’s rights issue, even according to the basic premise of the Founding Fathers, that you have God-given rights and government job is to protect your God-given rights.

The primary, the first among those being the right to life, this should be a no brainer. All 50 states should say we’re not going to murder unborn children. But we just don’t have a moral underpinning, we don’t have a constitutional understanding, and we don’t have the moral clarity we should across the nation.

The 25th Amendment

So obviously, as Christians, we should work to educate and enlighten and encourage morality. We should make disciples in biblical truth. And it should be a very clear biblical position that God is the author and giver of life, that God formed us and kneaded us together us in our mother’s womb; Psalms 139 tells us. Jeremiah 1:5, that before we were even formed, God knew us.

So before this pregnancy occurs, God already knew what was going to happen and God has a plan and purpose for that unborn child. But until we get the education back to where you have the moral underpinnings, until we can change where states are, there’s only a couple of courses we can take, either as constitutional amendment or it is evangelizing and discipling every single person in the nation. And we probably ought to work at both at the same time.


Alright. Well, while we’re talking about constitutional provisions and how the Constitution plays out, in this case, it would be a constitutional limit for life, one of the amendments to the Constitution is the 25th Amendment. And our next question is about that one. It’s from Michael. And Michael says, “I can’t express in words how grateful I am for your program: you helped provide some hope and clarity in an insane world.

My question is this if something happened to the president after Nancy Pelosi is no longer Speaker of the House and Kamala becomes president, has there ever been a Democrat president and Republican vice president? Based on how quickly I believe Biden is declining, I’m wondering also if Nancy Pelosi will invoke the 25th Amendment in order to maintain a Democrat president and vice president. Thanks so much for all that you do.”

Who Decides?

So as I’m tossing this question to you guys, just a little correction on the way this thing works from the question. The Speaker does not invoke the 25th, it has to be the vice president and half, so both the vice president and half of the cabinet. And it’s not everybody that the president named to be on the cabinet; it’s the Corps 15 officers that are listed in federal law.

So the Constitution basically hands that, you know, gives that permission to Congress to pass a law that decides who the people are that would vote in this situation. All that’s been decided years before. And so it’s basically 15 of them.

So if 8 of the 15 vote with Kamala Harris, then the 25th Amendment would get invoked. So Nancy doesn’t get to have any say. The Speaker has no say in invoking initially unless the president argues back. And if there’s a fight between the president and the vice president and the cabinet, then it does go to Congress and Congress has to decide it. But just a little bit have gone down the rabbit hole of into the weeds a little bit there. But really, the question is have we ever had a Democrat president, a Republican vice president, or vice versa?


Well, again, before we answer that, one of the point of clarification is, if Kamala were to become president, you’re not going to have to worry about a Republican vice president because she won’t pick one. And it’s not that the Republican Speaker of the House becomes vice president, is that she would pick her replacement vice president, it goes back to them. And so that’s the choice. The president it’s not the choice of Speaker of the House.

And if you had, let’s say that McCarthy become speaker of the House after the election, he’s not going to be the vice president if Kamala becomes president, it’s just not going to happen.

A Little History

So, back to the other thing, yes, there has been occasions where you had opponents in office. I think this is just one of the most humorous things there is in history. The start of the two political parties, you had the Federalist. And so John Adams was kind of the face of the Federalist and Thomas Jefferson is the loyal opposition party, and they can’t even come up with an original name for their party, they’re just called the Anti-Federalists. It’s kind of like if you’re a federalist, we’re against what you’re for and we’re the Anti-Federalist.

And so what you had before the 12th Amendment, which was added in 1804, everybody ran for president; you did not have vice presidential candidates. So everybody runs for president. And so what happened in the election of 1796, John Adams ran for president. He had been vice president under George Washington, but he never ran for that.

He ran for president as well, but George Washington got every vote. I mean, he was unanimous. And the next closest person was John Adams, and so your second, your runner-up for president becomes your vice president.

Now, the way that works is back then in the Electoral College, the elector, each elector had two votes to cast for president, so they would make two choices for president. And everybody wants George, and well, if I have to make a second choice, I’m really like John, so let’s choose John too. Well, John didn’t win president, so as runner up, he becomes vice president.

Then after Washington retires, your next two really big names are John Adams because he was the runner up behind Washington and your other big name is Thomas Jefferson. So both of these guys are running for president and they’re from two opposite political parties. And Jefferson came in second, which made him vice president, and you have John Adams who came in first, which made him president.

The 12th Amendment

So at that point, you have a president and a vice president who are from opposite parties. The analogy would be if we had not had the 12th Amendment added in 1804, what would have happened in the election of 2020 would have been that Joe Biden wins and Donald Trump is vice president. If we back up to 2016, it would be Donald Trump wins and Hillary Clinton is vice president. I mean, that’s the way it would have been had it not been…


Oh, but the reality show, David, the daily reality show that we could watch of the White House if Trump was president and Hillary was his vice president, we would be tuned in 24/7.


Oh, that would be a high ranking show. That would be like The Apprentice again. Yeah, Trump knows how to get those high ratings. So it’s really 1804, the 12th Amendment that stopped that. But prior to that, you had it.

And the other thing, Jefferson, when he ran for president, after John Adams was defeated in the election 1800, Jefferson’s running and you have John Adams running with running mate Charles Cotesworth Pinckney. Now this is in the election of 1800, so they haven’t amended the constitution yet.

So those are the two guys running. And everybody knows that Adams is running as president for reelection and everybody knows that Charles Cotesworth Pinckney is running as vice president. So that’s who they’re running. But every vote is cast only for president.

The Election of 1800

So you voted for John Adams for president and you voted for Charles Cotesworth Pinckney for president. Over on Jefferson’s side, he’s the challenger and he’s running for president also and his running mate is Aaron Burr. Now, Aaron Burr’s clearly running for vice president. Everybody knows Jefferson’s the guy, but both of them are running as a team and so two votes are cast for them.

As it turned out, in the election of 1800, it turned out that John Adams and Aaron Burr both had the same number of votes because everybody cast two votes and having the same number of votes, they defeated John Adams. The electoral votes for Jefferson were 73. The electoral votes for Burr were 73. So they’re tied. And the electoral votes for Adams were 65. And the electoral votes from Pinckney were 64. So 73 beat 65, 64, so Adams and Pinckney, you’re gone.

That now leaves you with Jefferson and with Burr with the same amount of votes. So which one is president? Well, that’s where it went to the House of Representatives because you had a tie for president. And in the House they voted 36 times before Jefferson was chosen president, because you still had a federalist Congress.

It’s a lame duck Congress. They lost the election, but they’re still into Jefferson until somebody is sworn in.


So they don’t like either of these guys?

Jefferson & Burr 


They don’t like either. But they hate Burr less than they hate Jefferson, so they all start voting for Burr even though he’s the vice presidential candidate. And so they go through 35 votes words tied between Jefferson and Burr even though everybody in the nation knows that Jefferson’s running for president, they’re trying to find a way to keep him from being president.

So eventually, on the 36 vote, there was a guy from Vermont and a guy from I think it was Maryland that just withheld their vote. They didn’t vote. And so that threw the election to Jefferson, he won the election. But you had these two guys and then Aaron Burr becomes an opponent of Jefferson, really as a backstabber.

And so now you got a president and the other guy who ran for president, Aaron Burr, is the backstabber of Jefferson. So it’s not two different parties in there, it’s the same party, but it’s two guys who hate each other. I don’t know what the analogy would be in Congress now. If you take a Jim Jordan and a Liz Cheney make them president and vice president, that would not go well. And so that’s essentially what you had.

So, yes, there was an occasion where you had two opposite parties, but there’s also an occasion where you had two guys in the same party who didn’t like each other, as it turns out. And it turned into a really bad situation. They actually had a trial of the vice president for treason, and that hadn’t happened often either. So there’s a lot of fun history back there.

It Gets Messy.


And I guess the last time that we’ve seen any of these provisions kick in would be when Spiro Agnew had resigned and so Nixon got to appoint a new vice president that had to be approved by both the House and Senate. And then so Gerald Ford becomes vice president.

Then Nixon resigns, Ford becomes president and has to appoint a vice president that both Houses had to approve. But since that time, we haven’t seen this, so man, that’s been 50 years.

So this would be the first time. I mean, when the weekend at Bernie’s routine finally ends and they stop shuffling him out there and maybe after the 2022 election, that’s what eventually will happen, if they do invoke the 25th, if he refuses to resign, then Kamala, just a little bit more trivia for everybody doesn’t become president, she becomes acting president, therefore, there’s not a vacancy yet for vice president.

So, Biden will just get shuffled off to the West Wing probably, she’ll be acting president, there’ll be no vice president. But she’ll have the powers of the president. And if Joe Biden fights it again, at that point, then it goes over to the House and the Senate and they have to have a two-thirds vote agreeing with Kamala and the Cabinet. So it gets messy.

But I think it’s worth talking about because, I mean, we’re as close as we’ve ever been to that actually happening. And frankly, it should. I mean, this was what the 25th was designed for. The 25th was originally just an unwritten deal between Nixon and Eisenhower. Back when Eisenhower was president, Nixon was VP, and then it carried over Kennedy. And Johnson did the same deal and then finally the 25th gets put in the Constitution.

Political Consequences

But everybody knows he’s incapacitated, can’t do the job. It’s exactly what the 25th was designed for. But the politics this plays into this, because even though Biden’s polling at like 30%, Kamala’s polling at like 20%, so they know it’s even worse to put her out front. So, going to be interesting but great question really…


And really, I don’t see any way that they can invoke the 25th politically. Because what happens is it becomes a press issue that, look, even the Democrats think he’s insane. He’s been running it for two, four years, think of all the things he’s done. And so they will probably lose the next three elections if they were to do that, that they stand behind somebody. And I think they know the political consequences.

So I think they’ll take a hit and they’ll try to do all this privately and they’ll try to get him out of there any way they can, hook, crook, whatever, they’ll try to get him out. If they invoke the 25th publicly, they have handed a media bullet to everybody on the conservative side and the independent side as well. They’ll lose their independence support, which they have to have. Either party has to have those independents to actually get over it. Neither party has numbers by itself.

And so I think it’s a political bullet they will not pull the trigger on. And I think polling is probably pretty clear on that. So I don’t think we’ll ever see the 25th pulled with Biden, even though, maybe it should be. I just think the political consequences are such that now you really don’t stand for the Constitution anymore, you stand for my side winning.

And as Machiavellian, I’m going to do anything I can to make sure my side wins. And he may be incompetent, but we’re not going to acknowledge that. We’re going to bluff it through and go on and try to do something in the background. We’re just at the point where sides want to win more than they want to do the right thing.


Yeah, that’s true. And she would not. Even though her political ambition would be to be president, she would be called a traitor by her own and be politically dead, probably, if she do it, so you’re exactly right. Let’s take a quick break, guys, we’ve got time for another question when we come back from the break. It’s Foundations of Freedom Thursday. You’re listening to WallBuilders Live.


Hey, friends, if you’ve been listening to WallBuilders Live for very long at all, you know how much we respect our veterans and how appreciative we are of the sacrifice they make to make our freedoms possible. One of the ways that we love to honor those veterans is to tell their stories here on WallBuilders Live. Once in a while we get an opportunity to interview veterans that have served on those front lines that have made incredible sacrifices, have amazing stories that we want to share with the American people.

One of the very special things we get to do is interview World War II veterans. You’ve heard those interviews here on WallBuilders Live from folks that were in the Band of Brothers to folks like Edgar Harrell that survived being Indianapolis, there’s so many other great stories you’ve heard on WallBuilders Live. You have friends and family that also serve.

If you have World War II veterans in your family that you would like to have their story shared here on WallBuilders Live, please email us at [email protected], [email protected]. Give us a brief summary of the story and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live.

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.”

Civil Law vs. Common Law


Welcome back to WallBuilders Live. Thanks for staying with us on this Foundations of Freedom Thursday. We got pretty much all constitutional questions today. Love it. This one’s from Steven and he’s asking us. He says, “Hello, gentlemen, love your podcast and your Constitution classes. What is the difference between civil law and common law and which was preferred by our founders? Thanks for all you do, Steven.”

So these are terms that we throw out there almost kind of interchangeably these days. But common law is actually a phrase in the Constitution. David, what is common law?


Common law is in the Seventh Amendment of the Constitution, the Founding Fathers defined it very clearly. Now, there were some debates among the founders on how to define it. John Adams and Thomas Jefferson had debates over how to define it. But the way they generally defined it was common law is the standards that come from immemorial usage. So it includes what the Declaration called the laws of nature and nature’s God. Those are natural laws that transcend all civil laws.

And civil laws are those that are enacted legislatively through the process of legislation. A civil law would be something where the House and the Senate vote on it, the president signs it, that becomes a civil law. What’s considered common law was here’s the understanding of right and wrong.

Anti-murder, actually, not murder, but laws against murder are part of the common law. You don’t have to have a civil statute on that. That’s part of natural law that’s known that’s understood to be a common right and wrong.

Basis of Right vs. Wrong

It’s interesting now, though, that when you look up common law today, they really make it stare decisis. They say, well, it’s what the courts have ruled for the last 15 years, whatever. So common law today, there’s people on the other side that say abortion is part of the common law because we have 60 years of decisions on that, and we’ve been ruling them for 60 years, and that’s part of the body of law now.

And so the Founders’ definition is really simple. It’s transcended laws. It’s the laws of nature and of nature’s God, which would be the way God reveals himself through his creation, as well as through the Scriptures. And so what’s in the Scriptures are always going to be part of English and American common law in the old sense.

When you get to the stare decisis stuff, whether you’re progressive and you throw thrown on anything historical, it really is what the courts have been saying for the last 60 years, which is interesting to me. You see people like Biden talking about the constitutional right to abortion. Well, that’s only a constitutional right if you think that the courts are the Constitution, because there’s nothing in the Constitution gives you that nothing in common law. Everything in common law was against abortion, was opposed to abortion until 1973.

So you have laws immemorial, they go back a thousand years, that’s part of the common law. So it’s really is kind of a definition problem you get. Do you use the modern definition of common law? Do use the Founders’ original definition of common law? Do you find in Blackstone?

Do you find in James Wilson’s writings and others? And if you do, then you have a pretty firm basis for knowing what’s right and wrong. If you use the modern definition, then it evolves with whatever the courts say, and that’s a real problem. But that is in the 7th Amendment, Rick, as you pointed out, and it’s very different from civil laws.


Common laws are kind of recognized as rights and wrongs in which we build all of the laws. And civil law is what comes through the legislative process, it’s signed by the president or the governor or the mayor, whoever that may be.


It’s almost like common law. I mean, is it fair to say it’s almost like tradition. It’s almost like what is that cultural tradition and the values that have been upheld in that community through the courts, but definitely a set of values.


Yeah, it is part of tradition. That was the word that was often used in the old definitions. And that’s where marriage is part of the common law. That’s why you get out of common law marriages. You didn’t have to have a statute for that. You got to have a common law marriage because it’s recognized a male and a female and a lifelong union. That’s the standard for it.

And the fact that the court redefines that in 2015 doesn’t change what common law is on that, unless, again, you’re a progressive that believes common law is whatever the court says it is. So it is that tradition. And that was a word that they used. And that’s where things like gender and traditional sexuality and morality and marriage and life and all these things that we call inalienable rights, that was part of the common law.

Abortion, Kamala As President, Common Law – On Foundations Of Freedom


Yeah. And for folks that want to basically take a good class on this, go read Sam Alito’s opinion in the Dobbs case because he spends a lot of time showing that abortion was not part of the common law, was not part of the tradition in America or England prior to Roe v Wade, that the court created it out of thin air.

And very, very interesting and great, great questions today, I tell you, folks, thank you all for participating in this program, for really coming alongside us as a part of the program. Your questions really help to make the program interesting and tells us what you’re curious about. And I love learning. Every time you ask one of these questions, I learn something. It’s just a great opportunity for all of us to dove into these foundational principles. We appreciate you being part of that.

Be sure and send in those questions to [email protected], that’s [email protected]. This has been Foundations of Freedom Thursday. You’ve been listening to WallBuilders Live.


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.”