Does The Constitution Protect A Right To Abortion: Would would the writers of the 14th Amendment and the Constitution say about the “right of personal privacy” of abortion? Did the justices in Roe v. Wade case get an accurate assessment of the Constitution? Tune in now to find out!

Air Date: 08/19/2019

Guest: Mike Farris

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. 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 apply those perspectives to these hot topics of the day so that we can all know the right approach in dealing with those issues. Whether it’s how we vote and the type of leaders that we’re looking for, or maybe how we might go testify on an issue at a city council or a legislature. Or just engaging in the conversation on Facebook or Twitter or maybe just at lunch or at the water fountain. 

All of those different areas where culture seems to be changing so rapidly and people are asking questions; they feel like sometimes there are no solid answers. 

Our purpose here at WallBuilders Live is to take those questions and look at them from these solid foundations of the bible, our Constitution, and what we can learn from history. 

What works, what doesn’t work, and what is the truth. 

We look at all of those things on the hottest topics of the day, and we appreciate you joining us in that conversation. 

Leading that conversation is David Barton. He’s America’s premier historian and our founder here at WallBuilders. Tim Barton is with us. He is a national speaker and pastor and president of WallBuilders. My name is Rick Green. I’m a former Texas legislator. You can find out more about all three of us and the ministry right there at Wallbuilderslive.com. 

We’ve got some archives of the program over the last few weeks if you missed that you want to listen to some of those programs that are available right now at the Web site. 

It’s also a great place for you to go to make a donation. 

Support WallBuilders

Yes, I’m asking you to invest in freedom by investing in this program. We are equipping and inspiring people all over the nation to study the Constitution, to bring the Constitution to their communities and teach it. We’re encouraging people to open up their homes or get some of our videos and DVD and take them into their Sunday school classes. 

All these different ways that they can study history and study the Constitution and get those good answers for the culture today. And you can be a part of that solution as well by donating making that one-time or monthly contribution, coming alongside us as supporters of the program. Or by being one of the people that take the information and shares it either through social media, in your Sunday school class or your home.  

We’re asking you to do something, take action; be a part of the solution to saving our Constitutional Republic.

A little later in the program, we’re gonna dive into the question of Roe v. Wade and the whole idea of privacy. It is actually a question from our audience. 

In fact, if you guys are okay with that, I’m going to start with a question for the audience even though it’s not Foundations of Freedom Thursday.

David: 

 Sounds good? Let’s go for it. 

Rick:

All right, the questions coming from Holly in Minnesota. Her question is gonna play perfectly into our theme here on WallBuilders Live: which is always looking at things from a biblical historical and constitutional perspective. As you’re listening to me, read the question guys, and certainly, the audience, think about the answers from that perspective.

How do you actually find out the constitutional perspective? Where do you go other than just reading the Constitution? Are there other ways to find out what was intended for those phrases in the Constitution?

Privacy And Abortion

Here’s what Holly said, and has to do with the issue of privacy and abortion, I recently started listening so I don’t know if you’ve covered this but if you could interview or if I could interview the writers of the Constitution and the 14th Amendment, what would they say about the “right of personal privacy” of abortion and the claim often made today that abortion should be a woman’s right because it’s her body her choice?

How did the justices in Roe v. Wade get privacy out of life, liberty or property anyway? Why didn’t they just say that the right to an abortion was a part of property rights? One’s body being one’s own property, to go along with their argument of viability? 

So a lot of questions thrown out at you guys all that all at once. Holly fantastic question and I love the fact that she’s asking if you could interview the writers of the Constitution the 14th Amendment. 

That might be the way we should approach is all the time when we talk about a constitutional perspective. We’re going to interview them but if we’re going to interview them how do we do that?

You Go Back To Their Writings

David:

If you want to know what they thought, you go back to their writings. That is how we know what they thought. 

We’re not going to do the King Saul stuff and go visit the witch and conjure up their spirits and ask them. What we do is we go to the evidence they left us. They are very prolific writers. That’s why Washington has one hundred volumes of writings. And Jefferson has one hundred volumes of writings, and Madison has 40, and Hamilton has 60 and Franklin has 60. 

I mean these guys wrote down their thoughts on virtually everything. They kept diaries. They did letters on their feelings, and what they thought about issues and people and situations, so they have a lot written down. Because they were writers in that generation, the people who talked to them also wrote down a lot. 

We have so many places to go and given that much information, where do you go? 

Well, Holly brought up two issues that are worth looking at. 

Life, Liberty And Property

One is what did they say about the right to privacy? And the second is what did they say about abortion? 

Now if you can get the answer to both of those, and we can because they talked about both of them, then the question is can you combine them together as the court did back in 73′ when it took the right to privacy and combined it with the ‘right to an abortion’?

Tim:

And it’s worth noting that the original intent of the Constitution is a little different than the 14th Amendment because that came many years after George Washington and James Madison and other notable founding fathers. 

If we’re going to talk about what was the original intent when they talk about life, liberty and property, if we’re talking about the abortion issue go back. The Founding Fathers like George Washington, James Madison.

Look through some of their writings. You will find James Wilson assigned to the Constitution talked about stuff like this. Other founding fathers talked about some of these issues, very outspokenly. 

See How They Were Trying To Solve These Issues

We can go to the Founding Fathers writings, but also you can go forward when they were writing the 14th Amendment. You can measure it in the context of the time that was around them. You can look at the issues they were dealing with and seeing what they were trying to solve with the 14th Amendment and how that applies to the issue of property or the issue of life.

Rick:

One of the guys that you know who very much is like us, he loves reading the original writings – whether it’s the founders that gave us the actual Constitution or the debates and the writings of the folks that gave us the 14th Amendment.

His name is Mike Ferris. He is currently President, CEO and general counsel of ATF which is Alliance Defending Freedom. It is on the frontlines of these things arguing before the Supreme Court. 

We’ll get some great perspective here. 

Stay with us folks you’re listening to WallBuilders Live.

Mike Ferris with us when we return.

This Precarious Moment Book

David:

This is David Barton. I want to let about a brand new book we have called This Precarious Moment: Six Urgent Steps That Will Save You, Your Family, and Our Country. Jim Garlow and I have co-authored this book, and we take six issues that are hot in the culture right now. 

Issues that we’re dealing with, issues such as immigration, race relations, our relationship with Israel, the rising generation Millennials, and the absence of the church in the culture wars, and where American heritage is our godly heritage.

We look at all six of those issues right now that are under attack, and we give you both Biblical and historical perspective on those issues that provide solutions on what each of us can do right now to make a difference. 

These are all problems that are solvable if we’ll get involved. So, you can grab the book. This Precarious Moment and find out what you can do to make a difference. This Precarious Moment is available at WallBuilders.com.

Mike Ferris, Alliance Defending Freedom

Rick:

Welcome back to WallBuilders Live. Thanks for staying with us today. Mike Ferris back with us, our good friend. 

He’s president, CEO and general counsel of Alliance Defending Freedom. He is also the founder of Patrick Henry University and Home School Legal Defense. Always good to have you, Mike. Thanks for your time today, sir.

Mike:

Thank you really, Rick. Good to be with you.

The Question Is About The Constitution And The 14th Amendment

Rick:

Hey, a good question came in from one of our audience members. David said, Farris. You’ve got to get Farris on this one. So here we are. 

The question is about the Constitution and the 14th Amendment. Even before you answer the question, I want to encourage people to get your constitutional literacy course. They can get it at the HSLDA store. We’re gonna have a link today at WallBuildersLive.com to make it easy.

Alright, let’s dive into the meat of this thing. The question is about the right of personal privacy, and of course, this comes to abortion, and the claim that abortion is somehow protected in the Constitution.

How do you counter that argument? How did the justices get it wrong and Roe v. Wade?

The Right Of Privacy

Mike:

Well, the right of privacy doesn’t exist in the way that was properly used in the Constitution. 

Now there is a right of privacy in the Fourth Amendment. 

Officials, police, social workers etc. can’t come into your house without a search warrant. That’s a right to privacy, and that’s valid. 

But the other amorphous right of privacy is just made up by the Supreme Court in various cases. 

In Roe vs. Wade, they really looked at the term liberty in the 14th Amendment, where it says no person shall be deprived of life liberty or property without due process of law. They again just made up a definition of the word liberty that includes the liberty interest that touches on personal privacy to have an abortion. 

Another word in the 14th Amendment is, what is person mean? If a person is an unborn child, within the meaning of the 14th Amendment, then the right to life exists in the Constitution.

The Orginal Meaning Of, Person

If you look at the history of our country at the time of the adoption of the 14th Amendment and do an original meaning analysis of the term, you’ll see that person includes an unborn child. 

That was the legal definition, as the supreme court acknowledges in the opening paragraph in Roe versus Wade. That was the prevailing legal opinion, and it was the scientific opinion. The American Medical Association had done a detailed study, and they said about abortion, an honest judge would call things by its right name, and so should we. In context, that meant abortion is murder. 

So we’re going to go by the original meaning the 14th Amendment, the term person; it means unborn children, they have the right to life. 

But they (the judges) just made other stuff up and ignored all that.

The Idea That A Child Is The Property Of Its Parents Is Preposterous

Rick:

How about this whole property argument? It’s the person’s body, and therefore, it’s their property. I would think at the time of the 14th Amendment, to use the language of property, gets you right back into the slavery debate.

Mike:

Yeah. The 13th Amendment took care of that one: is that there’s no such thing as involuntary servitude. All human beings are human property. 

The idea that a child is the property of its parents is preposterous. 

When we say a child belongs to their family, we don’t mean a property interest. We mean it in a team. 

Which team do they belong to? Who are their coaches? Their coaches are their parents, not the government. 

People say the child belongs to the family. Yes, in that team since nobody’s property.

Rick:

 How do you see this playing out in the next few years with the Supreme Court? And frankly, all the way through the federal court system? 

You’ve seen a lot of good nominees now on the bench. It’s a seismic shift as David has called it. How do you see the life issue, and Roe v. Wade playing out at the Supreme Court over the next few years?

Supreme Court Is Going To Take Down Roe. Vs. Wade 

Mike:

I think that there is a very reasonable prospect that the Supreme Court is going to take down Roe vs. Wade in the next three to five years. 

Now, I think it will require them to do it in at least two steps. I don’t think they’re going to take it down instantly bu I could be wrong. 

Any abortion case that is before the Supreme Court at any time could be the vehicle that would gather five votes to reverse Roe vs. Wade. 

I think if they knocked it down in two steps, it’s much more likely to happen. We don’t know which cases will be taken that way. 

If there were one more judge on the Supreme Court who was from a conservative perspective, from an originalist following a law perspective; then the chances go up even more so I feel very good about that now. 

Protect Life State By State

That will mean in all likelihood, that the issues just sent back to the states. We’re going to have to be prepared to go at the state level. The state legislative level to protect life state by state by state because that will give us an opportunity to protect life, but it won’t protect life merely by reversing Roe vs. Wade.

Rick:

So, a lot more to come. Even after that happens. As you said, it’ll be as a state battle all throughout the country.

There Is A Difference In The Decisions Based On The Appointees 

Rick:

General question for you just in terms of what you’re seeing. At ADF you guys, I would guess, thousands of cases all across the country and all dealing with all kinds of freedom issues and certainly religious liberty at the front of it. 

Have you already begun to feel a difference or see a difference in the decisions of cases based on the appointees of the last couple of years?

Mike:

Well, there’s no doubt of that. I mean the clearest example was a case that I argued in the supreme court, March of last year. It was decided in June of last year whether pro-life pregnancy centres in California could be forced to advertise for free abortions in the state on the walls of the pro-life centres.

We won that case 5 to 4 with Justice Gorsuch supplying the fifth vote.

If Hillary Clinton had appointed another nominee other than Gorsuch, we would have lost the case five to four in all likelihood. 

I’m so starting with that case, and there are many others. There is no doubt that judges who are willing to follow the law rather than to impose their personal political opinions are a very good thing indeed.

Alliance Defending Freedom

Rick:

What’s the best way Mike, while we got you, for folks to support ADF and what you guys are doing? You all are defending people all over the nation for free. You do incredible, incredible work, and that doesn’t happen by accident.

Those that are wanting to be a part of the solution and help you guys what’s the best way for them to do that?

Mike:

I would encourage them to go to our website, ADFlegal.org. 

We’re the ones that are defending Jack Phillips. We’re now on our third case that has been brought against Jack. We defended him in the Supreme Court. So if you want to defend people like Jack Phillips and thousands of others, I would appreciate your partnership. Thank you for asking.

Rick:

Yeah. You bet. In fact, I want to highlight you guys have a matching grant going right now for your Blackstone legal fellowships. That’s another great way to give. So folks can donate to help raise up the next generation of legal scholars that are going to be fighting these battles. 

All of that’s available right now at ADFlegal.org. 

If you want to dive in deeper, began to study these issues at a deeper level definitely get Mike’s course on constitutional literacy, and you can do that at HSLDA.org or go to their store. We’ll have an easy link to go straight to the course of today at Wallbuilderslive.com. 

Mike, always a pleasure, man. Really appreciate your time today. Keep up the great work out there. 

Mike:

Thank you, Rick. God Bless. Stay with us folks. We’ll be right back with David and Tim Barton.

Biographical Sketches 

Hi friends! This is Tim Barton of WallBuilders.This is a time when most Americans don’t know much about American history or even heroes of the faith. I know, oftentimes as parents, we’re trying to find good content for our kids to read.

If you remember back in the Bible, the Book of Hebrews it has the Faith Hall of Fame, where they outlined the leaders of faith that had gone before them. Well, this is something that as Americans we really want to go back and outline some of these heroes not just of American history, but heroes of Christianity and our faith as well. 

I wanted to let you know about some biographical sketches we have available on our website. One is called, “The Courageous Leaders Collection” and this collection includes people like Abigail Adams, Abraham Lincoln, Francis Scott Key, George Washington Carver, Susanna Wesley, even the Wright brothers. 

There’s a second collection called, “Heroes of History” in this collection you read about people like Benjamin Franklin, Christopher Columbus, Daniel Boone, George Washington, Harriet Tubman, the list goes on and on. 

This is a great collection for your young person to have and read. And, it’s a providential view of American and Christian history. This is available at WallBuilders.com.

Rick:

We’re back here on WallBuilders Live. Special thanks to Mike Ferris for joining us today and helping us with this question on the original intent of the 14th Amendment and this whole issue of the right of privacy. 

We’re back with David Tim Barton now. 

Guys, like he said he went back to what they actually said they meant, and what those words meant back then. Something we do here on the program all the time is say, what does this word mean not today but what did it mean with the original part of the Constitution back in 1787. With the 14th Amendment, what did it mean in the 1860’s? That’s the only way to really understand what they were intending by life liberty or personal privacy or any of these things that we’re trying to interpret today.

The Founders Were Prolific Writers That Wanted Everything Recorded

David:

As Mike pointed out, even in the 14th Amendment, they defined things like life. What is ‘person’ mean? And that includes an unborn child. 

It’s not just speculation that Mike casts on that, because one of the things the founders did: not only were they prolific writers, but they wanted everything recorded.

 So article 1 section 5 paragraph 3 of the U.S. Constitution requires that everything said, and congressional process everything said on the floor of the House the Senate debates and discussions, it has to be recorded so that we, the public, can read it.

Now, because of that, when they were debating the 14th Amendment. That was Amendment passed in 1868 when they were debating that they did it in the house, they did it in the Senate, and then it was ratified by the various states. 

The Constitution says a constitutional amendment has to be ratified by three-fourths of the states. And guess what? The states also have requirements that all public proceedings have to be recorded for the public to read. Just like the Constitution requires for federal. 

At that level, we got a ton of writings about what these guys said about the scope and the meaning of the 14th Amendment. Who’s a person? And what does the word person mean? It’s all over the writings, and that’s what Mike’s talking about. 

We Got A Lot Of Writings That A Person Is An Unborn Child

We got a lot of writings and the Supreme Court just kind of said, well we’re making up our own meaning for it. This really just raw judicial activism. When you set aside the meaning and give it a brand new interpretation that was not part of what was designed by that Amendment.

Rick:

That’s part of the reason we encourage people to study even if they only take an hour a week. But start to study that original intent and get familiar with it. 

I would guess, but I bet we could quantify it. 

David, you’ve probably read more of the original intent the actual writings we’ve been talking about. What you and Tim have what 120 to 30,000 documents or artifacts there in the library, not that you’ve read all of them that are there, but I know both of you read them continually. 

That gives you not only specifics but also a really good feeling for the gist of what they actually believed. And, what would be, shall we say, not congruent or really a reflection of their intent?

Those Documents Gives Us An Objective Position

Tim:

To your point, there is a very large collection we have. What it helps us do is not have to have a subjective position on what we think or what we feel because we can go and say actually here’s what they said, and this is what too often what we don’t do in culture. 

So often we want somebody else to tell us what is the summation, what should we believe, how should we feel.  

This is what’s been the challenge with the U.S. Supreme Court is that for so long, we’ve just looked at them to be the ones that tell us what’s right, what’s wrong: tell us how things should work. 

Which is why when we hear things like, no, we have three co-equal branches of government. You never find that in the writings of the Founders, you don’t find that the federal papers, you don’t find that any commentaries on the Constitution in the founding era or even in the decades following that. 

To where we’ve grown today where it’s not even three co-equal branches; where you have the judiciary which is dictating to the legislative and the executive branches what they’re allowed to do or what’s constitutional, and they are no longer co-equal. 

We’ve totally flipped on its head the idea of the Founding Fathers. 

But to your point; these aren’t things or ideas that we’re just suggesting, we can go back to the original writings and document and say, actually here’s what they said. 

So that we don’t have to wonder what is right, what’s wrong, what’s true, in some of these cases; what is life? What is property? We actually can go back to their writings, and they explain this to us.

Rick:

Well, we’ve got more writings that we could possibly get to in this program, but we do have one segment left to analyze this question that Holly from Minnesota sent us about where they got the idea of life, liberty and property. And whether or not this right to privacy and abortion would fall into that. 

So stay with us folks, one more segment today. You’re listening to WallBuilders Live.

Front Sight Handgun Training Course

Hey friends! Rick Green here, from WallBuilders Live. What do Dennis Prager, Larry Elder, Ben Shapiro, Rick Green, Tim Barton, David Barton – what do all these folks have in common other than the fact that they’re conservative commentators that defend the Constitution and educate America on the Constitution?

They’re all raving about Front Sight Firearms Training Institute. In fact, if you go to my website right now today at RickGreen.com, you can watch the video of Dennis Prager training at Front Sight, or Larry Elder, or Tim Barton, or myself out there training at Front Sight. It’s an opportunity for you to learn how to defend yourself and your family to make sure that you are ready and able to do that. It is a fantastic place to train. They train 30 to 40,000 people a year, and they’re just wonderful to work with. 

And you can go with us! We’re headed back out. We’re going to have a great time out there as the WallBuilders family, and if you’re a supporter of WallBuilders, we have an amazing deal for you. It’s actually going to cost you 1/10th the normal price to attend this two-day handgun training because you’re going with us. And, you’ll also get the Constitution crash course. I’ll be teaching on the Constitution; you’ll get the intellectual ammunition that you need to defend the Second Amendment and our Constitution. As well as getting physical training on how to defend yourself and your family.  

And, this is for everyone – guys, gals, everyone should take this class. No matter how much you’ve shot your whole life or if you’ve never touched a gun, learn how to defend your family. We’re going to be going several times throughout the year, and we would love to have you be a part of that. Check it out at RickGreen.com today to find out the dates, get all the specifics, and get all of your questions answered. Check out RickGreen.com today to join us on this Front Sight trip for both your constitutional and handgun defense training. 

Rick:

Welcome back to WallBuilders Live. Thanks for staying with us. We’ve been talking about original intent.

How do you figure out what those words in the Constitution meant to the people that actually gave those words to us? Bringing that to today, how do we actually apply that to some of these major issues we’re debating about? 

Obviously, what Holly is asking with regard to abortion, but it applies to so many other issues as well.

You Can Create National Policies That Are At Odds With The Document You’re Quoting

David:

If you can make up definitions of words, then you can create national policies that are completely at odds with the document which you’re quoting. 

Here’s a great example: back in the 60s we came up with several titles and federal codes. We want to make sure that there’s not a glass ceiling, so to speak in sports; we want women’s sports and men’s sports. We want women to be able to compete in sports. 

So, you need women’s basketball, women’s softball, you need women’s whatever sports and that’s established in law so that we would not discriminate against women. 

Now, we’ve got cases saying; if a girl thinks she’s a guy in her head, can she be a guy under Title 10. If a guy thinks he’s a girl, can he be a girl? 

What happens is you losing all genders. 

If you can redefine gender to be anything you want it to be when you lose the purpose of the law which meant to under-ride some equality between genders.

Now you have no genders at all, which is opposite to what that law was designed to do.

Words Mean Things

Rick:

Now, what you’re saying is words mean things.

Remember how grandma used to say that all time, words mean things. It couldn’t be more applicable than it is today. Especially with these things that I didn’t think the meaning would change: of a boy, a girl, gender. All these things that used to not be in question even 10,15, 20 years ago.

David:

But here’s the irony of it: you’re taking a law, and many of the people who pass that law in the 60s are still alive today, you’re taking a law they passed for a very specific reason, and you’re saying we’re going to by fiat, declare that this law means something totally different than what you passed.

We’re going to make it achieve goals that you never wanted it to achieve, and you never intended to achieve. We’re going to do all of this without any debate by the people. We’re going to do all this without any legislative process. We’re just going to declare it to be so through judicial fiat, which is what happened to the 14th Amendment. 

They redefined person. They redefined privacy. And so now, you end up with the application of something that contradicts the definitions that were clearly established at that point in time when they had these discussions. 

So, it really does give the entire government structure over into an unelected body that is not accountable to the people. Now national policies out of your hands. 

That’s why the question really is a good question. Particularly the question of how do you know what was intended. Does it really matter if you follow what was intended?

If We Want Stability

Rick:

And it certainly does.

That’s going to determine the future of our country, and it’s one of the reasons if we want stability in our law if he wants to ability in our nation; we have to go with the original intent. 

If we want to change the Constitution, you can do that through Article 5. 

There are two ways to amend the Constitution, and it can be done. But until then, we’ve got to stick to that original intent, or we lose the stability of our nation.

Let’s make sure we’re learning that original intent ourselves; we’re studying the Constitution. 

As Chief Justice John Jay, Original Chief Justice of the Supreme Court told us: every citizen should be studying the Constitution so that we’ll know our rights, know when they’ve been violated, and know-how to assert them and defend them properly. That’s our job as citizens. Make sure you are studying. 

If you want to bring the Constitution to your community, you can go to Constitutioncoach.com and sign up to be one of our Constitution hosts or coaches. That way you’re the one leading that discussion in your home or at your church or whatever group it might be that you’d want to get together to study deeper on the Constitution. You can also get Mike Farris’ constitutional literacy course. 

We’ve got a link today at Wallbuilderslive.com to get that as well. So many different ways that you can be engaged in the conversation and be a part of the solution.

Thanks so much for listening today to Wallbuilderslive.com. 

I encourage you to stop at our website Wallbuilderslive.com and make a one-time or monthly contribution. Those donations are what make it possible for us to bring this good news to the airwaves all across the nation.

Thanks for supporting us. Thanks for listening. You’ve been listening to WallBuilders Live.