Constitution Alive, Section Four, Part 3 – The Founders’ Intentions For Congress: Does Congress have the constitutional power to increase the national debt? What was the Commerce Clause intended to do? Why did the Founders have a distrust of a powerful government? Do the branches of government have tools to fight each other? When we learn the original intent of the Founders, we can better see how to fix what’s broken in our government. Click the link to learn the answers to these important questions and more as we continue our Constitution Alive series!
Air Date: 09/24/2020
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Transcription note: Â 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. This is WallBuilders Live! Where we’re talking about today’s hottest topics on policy, faith, and the culture, always doing that from a Biblical, historical, and Constitutional perspective.
We’re here with David Barton, America’s premier historian and the founder of WallBuilders. Also, Tim Barton, national speaker and President of WallBuilders, and my name is Rick Green, I’m a former Texas state legislator, national speaker, and author.
Today we’re going to get the conclusion of a three part series out of our Constitution Alive. In that series we cover every amendment and every article as we walk you through the Constitution and give you the original intent.
This week we’ve been sharing with you section four out of Constitution Alive which is about the Congress and this three part series. If you happen to miss yesterday or the day before you can go to our website right now at warblers live and grab it. But we’re going to pick up right where we left off yesterday with Constitution Alive.
This next clause there, if you look, if you’re on page 12, where we’re going through the enumerated powers, I know we don’t like it. I don’t like these trillion dollar deficits, I think they’re immoral. I think they’re wrong. Unfortunately, they are constitutional. That phrase says, “To borrow money on the credit of the United States.”
They have. It’s one of the powers we put in the bucket.
Of course, we want them to be able to fight wars at some time. Did you know how close we were to amending that part of the Constitution? We almost had a balanced budget amendment in 1990.
Regulate Means to Make Regular
How close were we? One vote. We could have had it with one more vote. Don’t tell me your vote doesn’t count. Every vote counts every single time.
I think we’ve got a lot of momentum in the country right now. That’s probably an amendment we can get done if we put enough support behind it.
Anyways, it is obviously constitutional for them to borrow money right now. Let’s rein that one in.
Now, here’s the Commerce Clause. OK. So here’s this next big loophole that they run through. I see three areas here that the Federal Government has the power—we gave them and loaned them the power—to regulate three areas of commerce.
Now, regulate does not mean micromanage. Back then it meant, “To make regular.”
So it doesn’t mean they get to micromanage it. It means they actually get to make it regular, which is back to this idea of general welfare. It’s back to the idea of protecting the system itself.
In commerce, what’s the system you want to protect? The free flow of free enterprise. So, in order to do that, we gave them the power to be the negotiators, if you will, in these three areas of commerce and three areas only.
The Commerce Clause
Number one: we said they can regulate commerce with foreign nations. We already mentioned we don’t want 50 states negotiating with these countries and having 50 different treaties, so we let the Federal Government do that. Fair enough.
Number two: among the several States. As Thomas Jefferson said, that’s interstate commerce. That interstate commerce is any commerce that crosses a state line. You could say that the federal camel’s nose is under the tent. We gave them—loaned them— the power to, in some way, make regular commerce across state lines. That doesn’t mean micromanage, what it means is we’re not going to let one state abuse another state in terms of free enterprise.
For instance, in Texas, we’ve really, over the last few decades, increased our agriculture in the area of vineyards and and having wineries all around. It’s actually become a big part of our agriculture.
Well, California is, obviously, huge in that.
Texas legislature cannot pass a law that says, “Well, we really want to help these guys with these vineyards in Texas be able to do better in their sales, so Texans can’t buy California wine anymore. We’re going to impose a blockade.”
That’s why we want a commerce clause in the Constitution, so that the Federal Government can say to Texans, “No, you can’t do that. We want the free flow of commerce because we believe in the free market, and we believe that, if you allow that free market to flow, everybody is going to be better off.”
So that’s a legitimate function of the Federal Government.
The last category: with the Indian tribes. You’ve got sovereign Indian tribes, you ought to have the nation of the United States negotiating with them and not all these individual states in terms of the commerce.
The Three Areas of Commerce
So there are the three categories, foreign nations, interstate commerce, and Indian tribes.
I’m just curious, why is it, if I’m going to put a new bathroom in my house and I let someone do a little remodeling and I’m going to add a new back home a remodel bathroom. If I call up Joe the plumber up there in Ohio and I say, “Hey Joe, would you come in and do my bathroom?”
He says yes. He’s going to bring in tools, he’s going to bring in some guys, I got some interstate commerce going on now. So the Feds actually have an opportunity to make regular this transaction.
What if my wife says, honey I was looking online, and they’ve got this beautiful, fancy, fufu toilet in France that I want to order. It’s only twelve hundred dollars.”
Now the Federal Government’s got an international trade to regulate. We’ve got a foreign nation involved. So now they can make regular the transaction of my remodeling in my house.
This is David Barton with another moment from America’s history. Today we heard that our Founding Fathers were largely atheist, agnostic, or deist. The writings of Founding Father Richard Henry Lee strongly refute that assertion. Richard Henry Lee was a signer of the Declaration of Independence and he is specifically the man who made the motion in Congress that America separate from Great Britain. Following his death, his papers and correspondents, including numerous original handwritten letters from other prominent Founding Fathers, were passed on to his grandson. After having studied those letters this was how the grandson described our Founding Fathers. He declared, “The wise and great men of those days were not ashamed publicly to confess the name of our blessed Lord and Savior, Jesus Christ. On behalf of the people, as their representatives and rulers, they acknowledged the sublime doctrine of his mediation.” For more information on God’s hand in American history contact Â WallBuilders at 1 800 8 REBUILD.
So Why DO They Regulate Everything Else?
What happens if Joe the Plumber called me and said, “Rick, man, I got 15 tea parties I’m speaking at this Monday. No way I can get down there to do your bathroom. You got to find someone local.”
So I can’t get Joe the Plumber from Ohio.
So I hired Joe Smith down the road in Dripping Springs, Texas. He’s gonna come do it. No tools coming in from out of state. No labor coming in from out of state. We don’t have interstate commerce going on anymore.
My wonderful, brilliant, gorgeous, amazing wife, as always happens, makes a brilliant decision and says, “You know, honey, that would be really foolish of us to buy that twelve hundred dollar toilet from France when Lowe’s has one for seventy nine dollars that’s going to work just fine.”
So, being as brilliant as she is, she decides we’re gonna do that. We don’t have France involved anymore. No more international commerce. No more foreign nations involved. So, we don’t have foreign nations. We don’t have interstate commerce.
Why is it that the Federal Government gets to tell me how much water’s got to go through my toilet? What kind of light bulbs I got to have in my bathroom? How wide my door’s gonna be?
It’s ridiculous. It must be because Joe Smith next door is Choctaw or something.
I’m assuming because of me having some Comanche blood that the Federal Government— I can’t figure it out, because there is no reason for the Federal Government to have anything to do with the commerce. That is not fitting into any of those three categories.
“Switch in Time Saved Nine” and Hurt the Rest of Us
You know what’s really sad? The court’s got this right. For a long time they slapped Congress down, slapped their hand for years when they would try to expand and open up the lid to get a new power, expand, and do commerce that was not in those three categories. And then, all of a sudden, they started kind of rubber stamping what would come out of Congress.
You remember who that was? FDR.
He had the, “Switch in time that saved nine.”
He was going to pack the court and all this stuff, and all of sudden they decided, “Well, you know, we said a little while ago minimum wage, you couldn’t do that because that didn’t fit into the commerce clause. But now we’re going to let you do that.”
Then they started letting them regulate this and regulate that.
And now, you know how bad it’s gotten.
It’s gotten so bad, the Wickard v. Filburn case happened. This is where a guy is farming. He is raising his own crops, not selling them to anybody, he’s consuming it himself. He’s not buying oil from anybody. So there’s no commerce here, right? It’d be like you having a garden in your backyard. He’s not buying it. No commerce.
Our courts said the Federal Government could come in with all the weight of the Department of Agriculture on this guy, and say,”You have to obey. We can regulate everything you’re doing because it’s commerce.”
“How is it commerce? That’s not crossing state lines. How is it commerce if he’s not even selling anything, and he’s not buying anything?”
But it COULD Have Been Commerce, Right?
“Had he bought those crops down at the farmers market it might have affected the price of commerce. The price of those crops, had he sold his crops at that fair, might have affected the price, and therefore this is somehow going to have something related to commerce if you could connect enough dots. It will impact interstate commerce.” Friends, that’s where we are. That’s how far we’ve gone from the plain language.
Is anybody confused by those three categories? Anybody confused by the plain language of the Constitution?
Yet because we’ve gone away from what these guys told us to do, we no longer interpret that language by what they said. We let some judge somewhere else twist it a little bit, then twist it a little more, they twisted them so bad it is now the whole idea of taking health care through the commerce clause.
The federal judge that initially said it was unconstitutional, he said the reason is because, not only did Wickard v. Filburn allow us to regulate commerce or regulate activity that was not commerce, not only did it go so far as to allow us to regulate activity that was commerce, what this law does is it allows us to regulate an activity that is not commerce.
And do you get how bad that is? That means we can regulate anything you do or don’t do. That’s what the court said was such a bad idea. By the way, one good thing that came out of the Supreme Court decision on health care is that Justice Roberts actually said no to be using the commerce clause for health care.
He put the brakes on this slippery slope we’ve gone with the Commerce Clause. That was one of the good things that came out.
This Could Lead to Government Regulating Everything, Commerce or Not
In fact, he said, “The path of our commerce clause decisions has not always run smooth, but it is now well-established that Congress has broad authority under the clause.”
Hang on a second. Well established by whom?
Just because the courts have said that the Commerce Clause gives broad discretion to Congress, that doesn’t mean it’s so. That doesn’t mean that’s what these guys wanted. When you go back to what they said, they did not want it to give them broad discretion. So I completely disagree with the chief justice on this. It is not well established. It may be well thought in their minds and well-established in their circles, but not these guys that have sat in this room. They’d be standing up and saying, “Oh no, you’ve got that one entirely wrong.”
In fact, the other four justices that dissented in the health care decision, said this about how far this was gonna go if we allowed this kind of expansion of the government. This is Scalia, Alito, Thomas, and Kennedy, “To go beyond that,” meaning going beyond what happened in Wickard v. Filburn, “To go beyond regulating commerce activity that is not commerce under the Constitution, but to even go further than that and to say that the failure to grow wheat extends federal power to virtually all human activity.”
Free Enterprise Has to be Free
That’s four of our Supreme Court justices saying this has gone way too far. We’re using the commerce clause, or frankly any part of the Constitution, to regulate people just for breathing in and out. That’s their words. That’s how far we’ve allowed it to go, friends. Now, commerce is supposed to be free enterprise. The more we micromanage it, the less freedom we have. The more we force people into the marketplace, the less freedom we have.
Jefferson had a great quote on this.
He said, “The pillars of our prosperity are most thriving when left most free to individual enterprise.”
When we regulate to the point of micromanaging, when we force people into the marketplace, we’re not left free to individual enterprise, are we?
That’s how far we’ve gone, and the reason? We hadn’t been reading it. We haven’t studied it, we haven’t looked at what the real meaning behind those words actually are. That’s why what we’re doing is so important, because if you and I can go back to what these guys actually did and said, if we can learn what they really intended, then we can go back home and we can share it with our friends and family. If we can use this knowledge in the decisions we make about who we elect to go to Congress. If we can begin to get young people to understand this, and someday run for Congress, then we can get members of Congress that understand these things. We can rein this thing in, we can turn it back, folks, we can get Congress back into its proper bucket, if you will, with the lid on it. We’ll just do our duty as a citizen.
Comedy and the Constitution at Front Site
Hey friends, Rick Green here. Have you ever wanted to laugh while learning? Would you like to actually have some humor included in your education about the Constitution? Well, that’s what Brad Stine and myself do in what we call Comedy and the Constitution.
We do it all over the country and can bring it to your community. But, we’re doing something we’ve never done before. We’re taking the Comedy and the Constitution Front Site in Nevada, and we’re going to combine it with the Constitutional Defense Program we’ve been doing for a couple of years.
Now, the Constitutional Defense Program is where you actually get some constitution training and some handgun training to you learn how to defend yourself and your family. You’re going to get all of it: the constitutional training; the opportunity to laugh with Brad Stine, God’s comic comedian, and you’re going to the handgun training at Front Site.
This is a one time event happening June 3rd and 4th. There’s still time to sign up; but, space is very limited. So, if you want to be on the range with us, then you’ve got to get signed up right now at RickGreen.com. Find out more; it’s going to be a great event on June 3rd and 4th. So, get signed up today at RickGreen.com.
“The Heart of Man is Desperately Wicked.”
I believe we can get to those big changes. And they will restore our constitutional republic if we bring them in. But to get to those, we have to dive into the details. It makes me think about why the founders got so detailed. For them to sit in that hot room and sweat it out, and actually go through line by line, like you said earlier, post offices and post roads, and all these specific details, why did they do that?
Why not just have one general statement that said government can do whatever is necessary to protect?
They had a real distrust of power, and they had been through it themselves with the king, but they’ve also been through it in the Scriptures.
John Adams, for example, is one that, in multiple letters, talks about Jeremiah 17:9 as the basis for why they separated powers.
The Scripture says, “The heart of man is desperately wicked. Who can know it?”
In other words, “If you leave man to his own devices, it will turn bad.”
So they distrust the government because they distrusted man.
Man is not naturally good. You have to corral him and get him to do the right things. It’s kind of funny, who teaches his two year olds to lie? It just comes naturally. You don’t have to. There’s 43 toys in a room, and and the kid can have any one, but if the sister picks up that one, that’s the one he needs. Who taught him selfishness?
That’s just their nature.
The Character of Man
The Founding Fathers understood the nature of man, that there are ways you can learn self-control, but there are other times you have to exert control. They’ve seen all the stuff that happened in France, they’ve seen Robespierre and all the stuff that went with that, they’ve seen that revolution in Greece, they’ve seen all these revolutions, and they’ve been under British history themselves, watching what’s happened with the different cases, whether it was William and Mary, or whether as Mary, Queen of Scots, total different approaches.
So they knew history. They knew the character of man.
As John Adams said, they knew the Bible.
Therefore, we separate powers and we’re really specific. We’re not going to tell you general categories, we won’t tell you what you can do. The other reason is—remember we were talking earlier about battle plans and battle maps, and looking at the bird’s eye view?
So we’re up here and we understand that we also are creating a Federal Republic, which shares power with lower level entities, that’s the state and communities. Just as we have to separate power horizontally, we separate between the judiciary, and the executive, and we separated over here with the legislative—and by the way, not only are they separate powers, the Federalist Papers said that they gave each branch constitutional arms to self-defense. In other words, if that branch starts doing something they’re not supposed to, you could fight back.
Now, I would just about guarantee you, you ask the congressman today, “Name five tools you have to fight back against the judiciary,” and they can’t tell me a thing.
But the Constitution gave each branch tools to fight back, namely five tools you have against an overreaching executive or whatever it is. The other branches don’t know that anymore.
Why Aren’t We Using What they Gave Us?
It really is a brilliant battle plan the Founders put it place.
It is. They wrote it all down.
I’m sure if they were here today they would say, “Are you all illiterate? Why aren’t you using what we gave you? Are you lazy?”
This room is filled with their writings and their own line by the way.
This wasn’t a secret meeting that they didn’t expose all the secrets. They gave us all the secrets.
Here it is. All the other discussions and the trust issue is right here. And those were private discussions at the time, so they can be very candid.
But then they came and said, “Here’s what we’ve got.”
So it’s real simple stuff. But what happens is we also have a separation of powers, not between the three branches, but between the levels of government. That’s federalism. “Hey Federal Government, there’s only certain things you can do. And by the way, state governments, here’s what you can do. Local governments, here’s what you do.”
That bicameralism of horizontal separation, and branches and the vertical separation powers that Thomas Jefferson talks about are very significant.
So what they did, understanding all of the components that have some jurisdiction in this, they said, “OK, we’re going to tell you specifically what Congress can do, what the President can do, and what the judicial branch can do.”
State Powers and Federal Powers
Now, does that mean that there’s not other stuff to be done? No. But that’s why we give you the 9th and 10th Amendments. The 10th Amendment says, “Anything we didn’t specifically give to Congress belongs to the states. We gave 18 areas to Congress. That means four million four hundred thirty two areas belong to the states.”
That’s part of the vertical separation.
People look at it and say, “Well, they didn’t say we couldn’t do it.”
The 10th said, “If we didn’t tell the governments to do it, then they can’t.”
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The Ninth and Tenth Amendments
The Ninth and Tenth Amendments. That’s why they were very specific in what they did.
That’s why they gave us constitutional tools of self-defense. But the problem we have is, if you are looking for a loophole, and you talked about the loopholes that the General Welfare Clause and the Commerce Clause, you will find a way to bust the intent of what it is.
“I don’t care what the intent is, I want a loophole so I can get around it and change the meaning of the words to do whatever it takes to get around it.”
John Dickinson, who is not only a guy who put the Declaration together, but he is a guy who also signed the Constitution. He’s one of the Founding Fathers. He talked about how dangerous it is when you start looking for loopholes and how it changes everything. I’ve just read here from his work.
He says, “Nothing is more certain than that the forms of liberty may be retained when the substance is gone.”
In other words, “You’ve still got a constitution, but it doesn’t work anymore because you’ve had a heart transplant. You took the heart out of it and placed something else in it. Nothing is more certain than that the forms of liberty may be retained when the substance is gone in government as well as in religion.”
“The Letter Kills, but the Spirit Gives Life”
Then he makes a direct quote, “The letter kills, but the spirit gives life.”
Now, that’s a direct quote out of Second Corinthians 3:6. He notes it’s right out the Bible and says that works in government just like it does in religion. If you forget, for example, that, in religion, Jesus, when dealing with the sabbath law, He said, “Hey guys, don’t forget the Sabbath was made to serve you. You weren’t made to serve the Sabbath.” Well, you can get so into the Sabbath laws that it becomes a bondage on your back, and instead of you getting the rest you need, it becomes something that’s your slave driver.
He said government is the same way, because you’ve gotten caught up in the legalistic nature of the law instead of the spirit.
That’s right. Same thing if you get caught up in the actual wording of the General Welfare Clause.
If I tweak my nose just the right direction, tilt my shoulders just right, I can find an interpretation.
Remember the spirit of the General Welfare Clause, which you get by studying all this, which he laid out very clearly. The fact you had all the founders quotes on it. Don’t try to squeeze a new meaning out of this, but go to what the spirit of it was.
When you do that, he says, “And in government as well as religion, the letter kills, but the spirit gives life.”
You go to that literal word by word interpretation to what they were trying to get, then you will kill the Constitution. You’ll kill the country, you’ll kill freedom, and kill prosperity, and kill all those things we enjoy.
That’s Why this is So Important
That’s why the founders are so good about being so specific in so many areas, so that we can get the principles, apply the principles, and have the same result that we’ve had for two hundred years.
All right. We’re gonna keep walking through those specifics. The great thing here is we’re getting some tangibles. These are real areas where you can restore that liberty if you go back to that original meaning.
It’s kind of neat, it’s not just this, “Oh, study the Constitution.”
We’re finding specific areas where, “Oh! We can fix this now that we know what the intent was. We can go to our congressmen and say, “Hey, let’s get this thing right.”
So we’re gonna get into more of those specifics. Our hope is that you are getting excited and realizing that we can restore this constitutional republic. In our next chapter we will finish on Article 1 Section 8 and those enumerated powers.
We’re going to take some questions from our audience in Philadelphia when we come back to Constitution Alive with David Barton and Rick Green.
What Does the Federal Government Have the Power to Do?
Well, that’s it folks. Thanks for joining us today. This three part series has ended today. It’s Â Constitution Alive. That was Section Four, covering the Congress, actually, Section 5 also covers the Congress. It took two full sections to do that and talk about those enumerated powers. Sorry we couldn’t share more with you today, we’re out of time.
If you go to our website at WallBuildersLive.com you can get the entire three part series we have shared with you this week, right there online, and share it with your friends and family. Get them educated about the true intent of the Constitution and what the founders intended for the proper role of our Congress to be, what the Federal Government’s actual jurisdiction should be under the Constitution.
You can find out more at our website at WallBuildersLive.com.