The U.S. Constitution – Refuting the Living Document Argument

The U.S. Constitution – Refuting the Living Document Argument: It”s Foundations of Freedom Thursday, a special day of the week where we get to answer questions from you, the listeners! Always answering your questions from constitutional principles! Tune in today as we answer your questions on how to refute the argument that the Constitution is a living document, how to deal with unconstitutional executive orders, how to define conservatism, and much more, right here on WallBuilders Live!

Air Date:Â 09/06/2018

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

Intro:

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

Rick:

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. Of course, here at WallBuilders, we always do that from a biblical, historical, and constitutional perspective.

We’re here with David Barton, he”s America’s premier historian and the founder of WallBuilders. Tim Barton”s with us, national speaker and pastor, and president of WallBuilders. And my name is Rick Green, I’m a former Texas legislator.

You can find out more about us and the program right there at WallBuildersLive.com. That’s our radio website. It has a list of our stations, you can click on the map and find out where to listen to us across the country. You can also get archives of the program which means you can go back several weeks and get some more programs like today’s. This is Thursday. So, we call it Foundations of Freedom Thursday. If you like what you hear today and you want more of some of those foundational principles and questions from our audience, then you can easily get those in the archives.

You might want to go back and listen to some of those Friday programs. We call it Good News Friday and it”ll really lift you up. It will let you know there’s lots of great things happening in the culture. I always take away from those Friday programs the fact that the system does work if we”re working the system, if people are standing up for truth we can get good results. And then Monday through Wednesday we always have some great interviews with folks that are right on the front lines fighting these battles. So, all that’s available right there at WallBuildersLive.com.

Get Yourself Equipped!

Rick:

And then at WallBuilders.com, our main website, be sure and check that out for the tools and resources that you need to equip yourself and your family, folks in your church and your community. Get you engaged, and inspired, and educated, so you can help restore our Constitutional Republic.

We’re here with David Barton and Tim right now and we’re going to ask them some questions from the audience. David, Tim, you guys ready for questions?

David:

You bet.

Rick:

Alright, first one comes from Zoe. And those of you that are listening, if you’d like to send in questions you can do that at [email protected], that”s [email protected].

But Zoe Davis says, “WallBuilders, just first want to say how much I love what you guys do. I started listening to your show this summer and I really enjoy how easy it is to be able to learn and get insight on history and current events.”

She continues, “My question is about how people regard the Constitution as a living document. Obviously, this is a progressive viewpoint specifically tailored today as a way to be able to change the Constitution to fit what they want. Like restrictions on types of speech or the abolition of guns. I’ve always considered the Constitution as sort of a set in stone document open to amendments. I”ve always considered the Constitution as sort of a set in stone document, open to amendments yes, but a brilliant still document. Many of the people my age who actually do care about politics, I’m 19, don’t see it that way. My question is what kind of argument or evidence could I present to show that the Constitution should be taken as it is originally? Or is a living Constitution just an ideology any progressive is going to automatically take? Thank you. Zoe Davis.”

Living or set in Stone?

Rick:

Well, first of all, you’re 19, come to Patriot Academy. Just the way this question is written, I would love to have you at Patriot Academy. So, make sure you check that out at PatriotAcademy.com guys. Guys, great, great, question and she framed it really, really, well. This debate between living document or a Constitution that is set in stone. And even as she described, a constitution set in stone can still be amended, it just needs to be amended the proper way. In our case, Article 5 through the amendment process – not by a bunch of judges sitting around deciding just these five of nine justices can change the thing. So, what do you guys say? Is it a living Constitution or is it a set in stone Constitution?

David:

Let’s go to the ideology first. For progressives they are very much evolutionists. And I don’t mean that in the sense of science, I mean in the sense of culture, in the sense of entertainment, in the sense of everything is always changing, always moving forward, needs to be different. So, from that standpoint that’s why history is not a course they’re concerned with because we’ve evolved past that. What they did 200, 400, 1700 years ago, that’s irrelevant today because we’re not the same people. We’re more advanced than they were.

So, they”re always applying that philosophy of evolution to, for example, education. That’s why we have every 20 years we”ve got a new system of education. Whether it’s outcome based education, or Goals 2000, or Common Core, every 20 years we”ve got to do something different. Well, the thing that is overlooked in all of this is there are principles that do not change.

And what I point to is science. If you look at our technology today based on science it is so different from what it was 50 years ago, or 100 years ago. I mean, 100 years ago, automobiles were just now coming in. Well, look where we are with cars today. A hundred years ago we had the Wright flyer with the Wright brothers. Look at technology today – we”ve got supersonic stuff that goes mach however two, three, four.

Times Have Changed but the Principles Haven”t

David:

So, the technology has changed. However, the principles on which that technology is based has never changed. So, if you look at today what we do with science, we use the same principles of science that we knew about a thousand years ago. The laws of thermodynamics, the laws of motion, the laws of gravity, none of it changes. It’s only the technology that changes. So, while technology has evolved, the principles have never evolved. The principles of gravity are the same as they’ve always been since the beginning of time, 5500 years of recorded history, there’s not been a change at all in the laws– the principles of gravity. That’s the way the Constitution is.

The Constitution is not based on technology, it doesn’t even mention technology. It mentions principles, just like science, that do not change over time. So, what we can have amendment do is not to change the principles, but to change the application of those principles by way of technology or anything else. The principle is all men are created equal. Well, we didn’t get the technology right because we thought slavery was okay, so we amend the Constitution to go back to the principle that all men are created equal.

So, there are amendments, but– And I think that’s a great question coming from a 19 year old from that kind of break point of millennial and Gen Z. That is the thing that they hear now and that is, “Hey, the founding fathers didn’t know anything about electricity, or anything about the technology of computers, or they were on horses and they used quill pens for writing. They don’t know what we’re facing today. We need a living Constitution.” No, you use the same principles you just changed the technology that’s associated with it.

Tim:

Yeah, guys, so kind of the– to put this culmination together, it really doesn’t matter what age or what generation we”re living in. Every generation feels like they’ve had new technological breakthroughs, they”re living in a new generation, things are brand new, we”re moving different, but the fundamental principles haven’t changed.

What are the Principles?

Tim:

This is where kind of that living, breathing, Constitution crowd comes in and says, “Wait a second, we’re new therefore we’re doing things totally different.” Yeah, but the fundamental principles are still the same. And this is why the living Constitution argument doesn’t really hold up because the Constitution itself doesn’t propose how we live day to day life. It covers the principles upon which we base our day to day life. And those principles haven’t changed. That’s why we can point back to the Constitution and go, but it’s these principles.

And this is where like even for millennials I think the best way to engage with young people is to ask questions and have them kind of defend their position or the assertions they are making. So, if they say, “Wait a second, we need something different and new.” I would say, “Okay, so what principle in the Constitution do you think is wrong and you think we need to change?”

David:

I should have said this earlier, but principles we’re talking about are like the principles of separation of powers–

Rick:

Something you wouldn”t want to amend.

David:

–checks and balances, principles of elected representative government, that you elect people to represent you. Those are principles that do not change over time. So, going to Tim”s question, so what in those principles do you want to see change?

Tim:

And I wouldn’t even offer what the principles were. I would have them show their ignorance in the situation and say, “So, what principles of the Constitution do you think are wrong, and what principles should change, and how should we change those principles?” “Well, I think the whole thing is–“ “Okay, so what, specifically, can you point to the Constitution you think is wrong?” “Well, I just think the whole thing–“ “Okay, so what specific details?”

Rick:

Right.

Why Asking Questions Helps

Tim:

I would really try to pin them down and this is where asking questions can so often help change the narrative. Because not only will it expose oftentimes their ignorance. It really will help bring the argument to a more of the foundational issue we are dealing with is that, so really, you’ve just been told it”s bad, but you really don’t know what’s there.

And this is where you could even start doing some teaching on it – So, do you think that the idea of the separation of powers is bad? Do you think having three branches of government is bad? Do you think electing officials is bad? So, do you think allowing people to vote is bad? Like what– then you can start helping teach them a little bit about it.

But I certainly would ask questions in this because so often the living breathing Constitution individuals have bought into a narrative that they don’t even know if it’s true or not. So, I would ask the questions to have them defend their position because, really, it’s not a very defensible position.

Rick:

Yeah. Good answer and good summation. So, that one applies to all of us just knowing why the document is set in stone the way that it is, not a living document, just like Zoe was asking. And knowing there is a time of change, but what are we changing? We don’t want to change the principles. We may just change the process and some of those ways that those principles are actually implemented.

Quick break, guys. We’ll be back. We”ve got more questions for you folks. And you can send in your questions by simply sending them to [email protected]. They can be about the founding fathers, about the application of these constitutional principles we’re talking about, send them to [email protected]. Back in a moment on WallBuilders Live.

Outro:

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.”

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Intro:

“The people of the United States, by a countless majority, are attached to the Constitution. If they shall be convinced that it is in danger they will come to it”s rescue and save it.” Daniel Webster

What Program is This?!

Rick:

Thanks for staying with us, folks. You’re listening to WallBuilders Live and it”s Foundations of Freedom Thursday today. Our next question– by the way, you can send in questions to [email protected]. But our next question comes from Joe. He says, “Dear Rick, I love you, man, but you’re too smart.” Thanks Joe. Don”t know if anyone else agrees with that.

David:

Wait a minute, what program are we talking about here?

Rick:

Yeah, yeah. I don’t know where he got this. I pulled this, I made this one up. Here we go. He said–

David:

Actually, I’ve known you for a long time and you really are smart. So–

Rick:

Aww thanks.

David:

–I”m making fun of you, but no question – you’re really smart.

Rick:

Thanks. Alright, he says, “You asked David–“ Yeah, compared to what though? “You asked David good questions, but you overlook questions that us not so smart people are thinking. As an example, last Thursday David said that Obama’s DACA executive order was unconstitutional. You asked good follow up questions, but the one question I kept thinking was, “Does anyone have to follow that order and what should Congress or the people have done?” Actually, you’re right, Joe, that really would be the next logical question.

So, David you said the Obama DACA executive order was unconstitutional. Joe’s follow up question I should have asked is, “Okay, well if it’s unconstitutional, does anyone have to follow it and what should Congress or the people be doing in response?

What Should we be Doing About DACA?

David:

Yeah, let’s go back and back up. The Constitution says that it is Congress that establishes the rules of naturalization, immigration, etc.. So, it is Congress that says what’s going to happen with immigrants – not the president’s executive orders. So, when the president issues an executive order that has the effect of law, in other words, he created a policy that dealt with an issue that was a purely congressional issue. That is an unconstitutional act by the president.

So, under original intent what have happened is the Congress would have stood up and said, “No way, we’re not enforcing that and you’re not enforcing that. Here’s the deal.” In this climate you would probably take the president to court and have the courts say that, “President, you don’t have the authority to do that.” But actually, even President Obama acknowledged that him doing that was not a constitutional act, that he would step in outside presidential authority to do that.

So, the question then becomes when do you have to obey or disobey? And there’s a couple of answers here. One is from a judeo christian standpoint, or a biblical standpoint, you obey any law until it crosses a point where it causes you to disobey something God has said. You have this higher standard of what God has said and if in the case of the Hebrew midwives back in the story of the Hebrews coming out of Egypt, if the pharaoh says, “Hey, I want you to kill every young boy that’s under 2 years old.” They say, “No, we don’t do that because that’s murder. And God says not to do that. So, we’re disobeying Pharaoh and we’re not going to do that.”

When you do Civil Disobedience

David:

Or if in the case of Daniel you’re told that you will not pray to God anymore and God says, “No, you need to pray to Me.” Then you say, “I’m not going to follow the king’s order.” Or in the case of the three Hebrew Children, “Hey, you’re going to bow down to the king and worship him. And they say, “No, we’re going to worship God.” That’s when you do civil disobedience. You don’t do civil disobedience just because you disagree with something that’s there. You do it when it violates a very, very, clear standard that’s been erected, in this case, by God.

So, if it’s in the Bible we’re going to practice civil disobedience rather than disobey God. That’s the position the apostles put forth in Acts 4 when they were told by civil authorities, “Do not preach in the name of Jesus again.” And they said, “We”ve got to obey God or obey man. We’re going to obey God because He told us to share the good news with everyone.” So, when it comes to a choice of God versus man you choose God every time.

Now, if it comes to a choice of I don’t like that and I personally disagree with that. That’s not the same situation. That doesn’t necessarily rise to the level of civil disobedience. And by the way, any time you engage in civil disobedience you need to know that you will face a penalty, a civil penalty, for doing that.

When Daniel said, “I’m going to violate this command that says “don’t pray””, well, he still ended up in the lion’s den. Now, God saved him. That doesn’t mean God is going to save everybody that ends up in the lion’s den, but he chose not to disobey God. And the same with the fiery furnace – the guys still got thrown in the fiery furnace, God saved them, doesn’t mean God’s going to save everybody in a fiery furnace, but they chose to obey God rather than the man.

What About Unconstitutional Acts?

David:

Now, let’s back that down a level and say the supreme authority in America is number one God, and number two the Constitution. So, if there is clearly an unconstitutional act, do I have to obey that? The answer is, no, you don’t. Now, you may face civil penalties, you may go to a trial for that, you may have all sorts of flack over it, but you don’t have to obey an unconstitutional order. In the military they call it a lawful order.

It goes back to the kind of stuff that happened with the Nazis in World War II in Germany where that at the war crimes trial, the guys said, “Well, we just did whatever Hitler told us to do.” “Did you know it was wrong to be killing millions of Jews?” “Yeah, but–“ “Well, if you know it was wrong then you don’t do it.” So, in the American military they’re required to follow lawful orders. If you consider an unlawful order and you can prove that, you don’t follow it. And you still going to go through a court martial, but you’ll be exonerated.

So, that’s really the position that the right answer to this question is, yes, it was unconstitutional. Congress should have stepped up on their hind legs and said, “No way. You’re not doing this. This belongs exclusively to us and you’re not going to do it.” Because Congress is the one who provides the funding for anything to be enforced.

So, the president’s DACA order cannot be enforced if Congress says, “We’re not funding any any implementation of that order.” And Congress has done that on a number of occasions. When they don’t like something they just defunded. So, a President can say he’s going to do it, but how is he going to enforce it if there’s no funding for it?

So, that that was the right position that should have happened. Congress should have stood up and said, “Absolutely no way.” And as far as the people, and that”s kind of hard for the people. Now, you can say border immigration people should probably have said, “Hey, that’s not constitutional. It’s not a lawful order.” But in this climate that’s going to be a hard thing to do because we’re told today that you follow the law no matter what it is. The right thing is you go back to the higher source and say, Does this law violate a higher law? If it does, then I’m not following it. It becomes an issue of whether we’re going to practice civil disobedience rather than obey the laws at the time.

Rick:

Now, catch us up, just kind of help me remember. So, Obama had his DACA executive order. And Trump has done some things on the DACA situation. Where does it stand right now?

Where Does DACA Stand?

David:

Well, where it stands is still in the hands of Congress. Because as President Trump– and this is one of the early things he did that I really admired him for. And I’ve talked before that he really surprised me on so many levels. I never expected him to be constitutional in the sense that he is.

He said, “Look, this order by Obama was unconstitutional. Congress is the one given the authority to determine immigration policies. So, I’m telling you, I’m repealing the executive order. Now, Congress, before I implement it. I’m giving you six months to fix this thing. Otherwise it’s going back to status quo, it’s going back to where it was before Obama issued that unconstitutional order. So, Congress, this is in your court as it supposed to be.”

Now, it”s not many times that I see a president give power back to Congress. But that was the constitutionally correct thing to do. Congress has not acted on it. It’s been more than six months. Congress has done nothing on it. And this is why presidents get tempted to do things because Congress is not doing what it’s supposed to. And a lot of that is because, we talked even last week, Rule 22 in the Senate – the filibuster cloture rule is not part of original intent. So, it’s made Congress an impotent body unable to do anything because you can’t get 60 votes in the Senate.

So, Congress itself is violating constitutional intent. And therefore when he puts something back to them they can’t get it done because they’re not acting constitutionally. But that’s the right way it should have been done. It”s exactly the way that President Trump did repeal that executive order, said it was wrong, “Congress, fix this thing.” And that really is where it stands now, Rick, to answer your question. It’s in the hands of Congress, but at this point they’re not doing anything with it.

Rick:

Got it. Okay, quick break. We’ll be back. And by the way, Joe, thanks for the question. And I’m going to try to remember what those basic questions would be that we’re all thinking as we listen to these programs. It’s Foundations of Freedom Thursday. We”ve got time for one more question when we return. So, stay with us. You’re listening to WallBuilders Live.

Outro:

Thomas Jefferson said, “The constitutions of most of our states, and of the United States, assert that all power is inherent in the people that they may exercise it by themselves that it is their right and duty to be at all times armed. That they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press.”

Join The Bartons and Greens In Israel!

Rick:

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Intro:

“The United States Constitution is the impassioned and inspiring vehicle by which we travel through history. Why is the Constitution of the United States so exceptional? Well, the difference is so small that it almost escapes you. But it’s so great it tells you the whole story in just three words – “We the people”. In those constitutions the government tells the people of those countries what they’re allowed to do. In our Constitution we the people tell government what it can do. And it can only do those things listed in the document and no others.” Ronald Reagan.

Confused Values

Rick:

Welcome back to WallBuilders Live. Foundations of Freedom Thursday today. We”ve got time for one more question. This one’s on confused values. It says, “I interact with many young adults my age that are in their mid to late 20s and it is rare that I interact with someone that’s socially conservative. Why do you all think so many young adults these days are embracing this philosophy of being fiscally conservative but socially liberal? And would you take someone’s conservatism seriously if they were to espouse such views?”

So, David, Tim, definitely great question. Definitely hear that a lot. And really good final question. Should we– do we take that person’s conservatism seriously? Can we really say they’re conservative if they’re fiscally or financially conservative, but socially liberal?

Tim:

Yeah, it is a great question. Let me start with the last part of that question first, the idea can you be a true conservative if you’re not socially conservative? Well, we would say certainly not. The problem is how do we define conservatism today. This is one of the challenges when we live in a nation and culture that is constantly redefining terms. And this is why even the idea that it’s okay on some level to be fiscally conservative, but certainly not socially conservative.

But even that is not very trendy for young people. When you look at young people, most young people favor socialism over capitalism or the free market. Most young people are in favor of letting people choose their sexual identity, their sexual preferences. So, on both levels it’s not always trendy, but you do see some people that identify as conservative that are fiscally conservative but not morally conservative. And I would argue it’s because they really don’t know where conservatism comes from and why people are conservative in the first place.

Where Conservatism has its Roots

Tim:

The reason I believe there is a limited government is because I believe there is a God who gave rights to men and government’s job is to protect the rights that God gave us. But not only has God given us rights, God’s given us a moral blueprint for the way life works. God’s the one that created the family, God’s the one that created marriage, and that structure between one man and one woman. The reason I am conservative, I’m trying to conserve those values that the Founding Fathers upheld, the traditional values of the Bible, the traditional values of western civilization. And this is where conservatism has its roots.

But because people don’t know history, they don’t even know how to find the words anymore. What’s become trendy is inside of even conservatism is really libertarianism which says, “We believe in limited government fiscally, but also limited government when it comes to moral things. And therefore, not only can the government not touch my money, they can’t touch my sexuality, they can’t touch my preferences, they can’t touch my desires. There should be no moral code.” And this is very contrary to the founding fathers who believed that freedom only works if you have a moral structure. And they argued there’s no higher morality than that of the Bible.

Which is why even though not every founding father is a Christian, every founding father did promote those biblical, traditional, values, because that’s what allows freedom to operate. If you’re going to be a conservative, if you’re going to promote freedom, it has to be from a moral structure which is why you have to be conservative not just fiscally, but also morally.

Rick:

I’m understanding you say then you wouldn’t take their conservatism seriously. They’re not truly conservative at that point. They’re definitely maybe libertarian or maybe they’re just anti-government, but they’re not what we would call a conservative.

Why They Can”t Be Considered a True Conservatism

Tim:

Exactly right. There’s no way you can find them fitting in that category because if you are not morally conservative you’re actually denying the very things that allow conservatism to work. And that’s why you can’t consider them to be a true conservative.

Rick:

Alright, that’s all of our foundation the freedom questions. I do have a couple of other comments from the audience before we leave today’s program. This one comes from John in Florida, “My family and friends are so blessed by your show and other resources. Thank you for everything.” Next one from Eric says, “Thank you for everything you do. I love listening to your programs. They”re awesome and inspiring. One day I”ll ask my pastor to have you guys out so he can have you all educate our fellow church goers. I”d also like to get my pastor to your Pastors Briefing that you do in Washington D.C..”

All of the information on those items is available at WallBuilders.com. So, check that out. You can find out how to send your pastor to one of the Pastors Briefings. You can also, there at WallBuilders.com, help support this radio program and allow us to get this good news out to as many people as possible. And also just continue to bring you these great interviews, these great questions and answers on our constitutional values. You can do that by going to WallBuilders.com, as well.