Judicial Review, National Popular Vote, And More – On Foundations Of Freedom: Is judicial review constitutional, and why should we care? Should the Supreme Court be able to review policy or only process?Is National Popular Vote constitutional? Why is it vital to keep the Electoral College? Tune in to learn the interesting, important  answers to these questions and more!

Air Date:  09/08/2022

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


You find your way to the intersection of faith and the culture. It’s WallBuilders Live. I know a lot of people see faith in the culture now, we’ve been saying it for what, 20 years here, I don’t know the long time that WallBuilders Live and we’re so appreciative that you’re a part of it, that you’ve joined us today, that you’re going to take what you hear today and take action on it. You’re going to participate in saving liberty. That’s a pretty high calling, but we’re all called to that.

We’ve got a responsibility to occupy until he returns. We got a responsibility to render into Caesar what is Caesar’s and unto God what is God’s. And since we’re Caesar in this country, that means doing our part as citizens under this amazing United States Constitution. And we thank you, thank you for listening today so that you can learn how to do that even better and even more effectively in your community.

You know, we call these Thursday programs Foundations of Freedom Thursday, because it’s a chance to get back into the foundations, to study those foundations, to learn more. And we love it when you drive the conversation with your questions. You can learn more about us at wallbuilderslive.com. I’m Rick Green, America’s Constitution coach, here with David Barton and Tim Barton, David’s America’s premier historian, and Tim, of course, the president of WallBuilders. Thank you so much for joining us. Let’s get into Foundations of Freedom Thursday.

Alright, David and Tim, love Foundations of Freedom Thursday is our chance to dove into those questions from the audience. And boy, did they send in some good ones. They make us think, which I think is good because we don’t think enough probably. But no, we’re trying to think all the time and we’re all students of history.

We’re all learning all the time. I always start my Constitution classes saying, hey, I’m no guru, I’m learning just like everybody else. Every class I’ve ever had, guys, somebody stumped me with some question on some random thing about the Constitution or founding principles that I never looked at before. So I love getting these questions and getting an opportunity to learn. And so, man, you guys ready, I’m going to throw a bunch of them at you today?

Judicial Review


Go for it.


Alright. First one is coming from let’s see, Lewis has a question about judicial review and whether or not it’s unconstitutional. “Hello, WallBuilders. I recently overheard a conversation at my university between two students talking about how they would revise the Constitution. One of them purported that since judicial review is not enumerated in the Constitution for the courts, the Supreme Court and more generally, the judicial branch doesn’t have the authority to declare what is and is not constitutional.

In other words, since judicial review isn’t explicitly granted to the courts by the Constitution, it is just as unconstitutional as Congress exceeding its enumerated powers. I believe judicial review is very important to our system of checks and balances. But what is the constitutional justification for it from a textualist reading? Thanks for the help, guys.”

Alright, great question, Lewis. Thanks so much for sending that in. We appreciate it. David and Tim, what do you think?


Well, I feel like if there are college students debating this, it has to be like Patrick Henry College or Hillsdale or Liberty. Already we’ve limited the gap of where this could be. And in fact, I did not see in the question the university. So I’m super curious. Lewis, let us know, where are you going to school because I’m super impressed with you and your friends already having this discussion. That is awesome that this discussion is going on. And guys, this is something that we have actually talked about…

Madison and Marbury


And by the way, Tim, that means we want Lewis at the leadership training program, we want Lewis at Patriot Academy, we want Lewis to come to our programs and hang out with us because he’s clearly thinking about the same things we are.


No doubt. And your friends who are having this discussion, you are the kind of people we would love to invest in and actually even show you from some of these original documents. Because guys, we’ve talked about before part of the notion of judicial review and what that is under the Constitution and Madison and Marbury and what this actually looks like. And it’s not as confusing historically as some people think, although it has been distorted from the original intent.


You know, one of the things that helps answer this question is, alright, let’s go back to the period in which this was written and see how they thought about judges at the time. And one of the ways you can do it is go back before the Constitution, but after British rule. So let’s take after the Declaration of Independence and before the Constitution, because at that point in time, you have the 13 colonies that have written their own state constitutions, and those state constitutions have laid out the three branches and what each of the three branches are to do.

So if you’ll find what they were doing for that period of time between 1776 and 1787, those 11 years, 12 years when they were doing this, how did they see Judges? What was the role of Judges? What did Judges do?

And so that would be in their mind when they wrote the Constitution: here’s what we’re used to, here’s what our custom is, here’s what goes on. And what you’ll find is that the courts dealt a whole lot more with process than they did with policy. You did not have the courts taking a position and saying, here’s what the policy is going to be.

Process Or Policy?

What the courts did said, well, here we are, we’re looking at a criminal conviction and we’re looking here at the way the prosecution handled it, the way the defense handled it. Here’s what the jury did. Here’s what the law says. And we think this was really done right.

And so they look at the process or they say, hey, the prosecuting attorney here, he really got out of line when he did this, so there needs to be a new trial or whatever it is. So it’s not the matter that they’re coming in and saying, here’s what the new policy is, we’re going to have Roe v. Wade. They look more at the process of what’s going on within the judiciary.

Remember, the Supreme Court is the top court within the judiciary and what they’re really in charge of is their own branch. Just like the president is in charge of the executive branch, he’s got a whole lot of people under him. He can’t speak for Congress. He can speak for his branch.

And so that’s really the way they looked at it and they said, okay, the Judges under us, are they doing this right? Are they handling it right? And it’s not that the legislature brought to the courts something and said, hey, is this policy, can we do this policy? That wasn’t what the courts were doing at that point in time.

So what happens now is we see what the courts do today with judicial review, as Tim mentioned, Marbury, Madison, that’s really the first federal case where you see this. It’s interesting that law schools today say, hey, Marbury, Madison, this is the birth of judicial review. No, it’s really not.

It happened before that. But they’re talking about judicial review as of policy. And it’s interesting that in that decision written by Chief Justice Marshall, the first thing he said was the court does not have jurisdiction over this issue. And then he says, but if we did have jurisdiction, here’s what I would say.

Who Has Jurisdiction?

Well, no, wait a minute, you just said you didn’t have jurisdiction. And so what happens today is people look at that and say, hey, the court gave its opinion. No, the court just acknowledged it doesn’t have the authority to give its opinion and so it stops there. And that’s why Jefferson himself said that that decision was a perversion of the law. The court went past what it said it could do, and it went out beyond that.

So when you look at what the Constitution says, the role of the court is, part of that is understood traditionally and historically by what they did. But the other part is the Constitution really does spell out a lot of stuff. A judicial review was accepted, but it was accepted more for process than for policy. And at times when it did issue something that would relate to policy, it was not binding.

And that’s the big deal today. People think that when the Supreme Court issues an opinion, it’s binding on everybody and that becomes the law of the land. No.

The top of the judicial decision, even today, says opinion of the court, it does not say law of the court. So when the court gives a ruling, it is giving its opinion on a policy like Roe v. Wade or anything else. They can’t come up with policy. So that’s really the way to look at it. But remember, the Constitution also does give Congress the right to limit what’s called the appellate jurisdiction.

Congress can say if it wants to, Congress can pass a law right now that said, we will allow no issue of abortion to ever come before any federal court. Congress has the constitutional right to do that. That’s called appellate jurisdiction.

So with that, there’s a lot that the Congress can limit the court from doing; but the court does not have the example that was given. With that judicial review that probably would never have happened back in the founding era.

Adams Vs. Jefferson


Yeah. You know, David, one thing I’ve always been curious about and needed, I just need to go do some reading on this, but I wonder if Marshall was basically saying we don’t have authority to make law here. But here’s my opinion if you want to know what it is, but don’t go make law with it. Or do you think he actually intended?


No. It’s much more sinister than that. So here’s what happened. The Federalist at that point in time ruled the political world. The Federalist, John Adams and Alexander Hamilton were the founders of the Federalist Party. And so they are hard core. And on the other side, Madison and Jefferson are the founders of the Anti-Federalist Party.

So what happened was in the election of 1789, George Washington’s chosen president and the Federalist and anti-Federalists are just kind of ideas are getting formed, they hadn’t really created political parties yet. By the end of George Washington’s first term, they’re starting to become opponents.

By the end of Washington’s second term, they have really become opponents. And so in the 1796 election, you have federalist candidate John Adams taking on anti-Federalist candidate Thomas Jefferson. Well, the Federalist won that. John Adams won that election. So Jefferson is on the party on the out.

But in the reelection for Adams, Jefferson wins the reelection. So now the balance of power has shift to his political opponents. Now, from the time of the election to the time the president was sworn in was about four months back then. So, you have for much of a federalist Congress and a federalist president, and they’re about to lose control to an anti-Federalist Congress, anti-Federalist president. In those four months, they started passing all sorts of laws to reshape the judiciary. One was called the Judiciary Act of 1801. And judiciary…



Now, David, if I could interrupt you for a second just so people can picture this, this would be like in fall of 2024, the election happens. Let’s say Ron DeSantis wins and Kamala Harris or whoever is running for the Democrats loses, and let’s say they still had the Congress and they lose the Congress and now all of a sudden you got about two and a half months between the election and the time all of these Republicans are going to take over the House, the Senate and the White House.

And so the Democrats go, hmm, now’s the time to stack the court. Let’s just add like nine judges to this court and let’s make them all really liberal Democrats so that we at least have one branch of government. Is that kind of what they were trying to do?


That’s exactly what they’re doing. And so the Judiciary Act of 1801 says, you know what, we’re going to add 16 federal judgeships. That doubled the size of the judiciary. So with one bill that doubled the size of judiciary, more than doubled actually, and that allowed John Adams to appoint 16 new Judges, and that allowed the Federalist Senate to confirm 16 new Judges.

So they now have more federalist Judges on the court than they had the entire judiciary. So they doubled the size. They put their guys on the court. And they created 42 judicial positions in Washington, DC. and they stack them with their guys.

So what happened was John Adams then took John Marshall, who was his secretary of state, and said, I’m going to make you the chief justice. And so he took a political hack and said, you’re now the new chief justice. Now, what happened was Adams had these 16 federal judgeships, 42 D.C. judgeships, he signed the judicial commissions, and he gave that to the secretary of state and said, go deliver these to the Judges.

You’ve heard the phrase signed, sealed and delivered. This is what it means. The president signed the commission, the secretary of state sealed it with the great seal of the United States, and it was then delivered to the Judges. Once something is signed, sealed and delivered, it is a done deal. What happened?

Chief Justice John Marshall


You mean that’s not just a song from the 50s or the 80s?


No, it’s not. It goes back to signed, sealed, delivered Judges. What happened was Secretary of State John Marshall, who is also now Chief Justice John Marshall, he had these signed and sealed commissions and forgot to deliver all the commissions. So some of the commissioners did not go to the Judges, which means they really weren’t Judges. So when Jefferson comes in and takes office, his secretary of state, James Madison, finds 23 of these commissions sitting on his desk as secretary of state, and he says, I’m sure as heck not going to deliver these to all these federalists.

And so one of the Federalists sued and went to court and said, hey, my commission was signed and sealed, you need to order President Jefferson to deliver that to me. And they took it to the Supreme Court. And so Chief Justice John Marshall says, I don’t have jurisdiction over this, but if I did, I would tell you, you have to deliver that commission. Now, wait a minute.

If you had delivered the commission in the first place, it would never have gone to the Supreme Court. What you’re doing is saying I made a mistake and I’m ordering you to clean up my mistake when I was secretary of state. This is a purely political hack move. And I mean, it just stinks of politics.

And he was a hard core federalist hack. And so he uses the Supreme Court to order Madison to deliver the commissions he forgot to deliver. Any court today would say, wait a minute, you got to recuse yourself. You can’t issue a decision on something in which you’re directly involved and something that affects your decision. And so we got all these law schools today saying, oh, this is a glorious decision, it establishes judicial review.

The Judiciary Act of 1789

No, it establishes what you have is a lack of character. And instead of recusing yourself and let it be neutral, you’re trying to turn the court into a political branch. This is pure judicial activism. So it was not anything that you can really read as something noble at the time.

When you read the records of Congress, when you read the records of what happened in Judiciary Act of 1801, you read the speeches, the senators and the House members, there was no question about what happened. And by the way, once Jefferson got in there with the anti-Federalists Senate and House, he repealed the Judiciary Act of 1801. So he repeals that Act.

And by the way, here’s the other thing, Rick. Okay. So here you’ve got John Marshall who says we don’t have the authority to do this, but I’m going to do it anyway. How did he do that? He struck down the Judiciary Act of 1789. Now, grab this. This is the Judiciary Act that established the original Supreme Court. So he struck that down. And that Act was passed by a dozen members of Congress who had been drafters of the Constitution.

The Act is signed by George Washington, who signed the Constitution, President of the Convention. So you have this act that’s given by the original signers and drafted the Constitution, says here’s what the Supreme Court can do. And two courts after that ruled that that law was completely constitutional.

So John Marshall comes in and said, no, that’s an unconstitutional law. By striking down that law, he gave himself the authority to overturn the act of Jefferson. So he had to strike down the Judiciary Act of 1789 to give himself the authority to do what he couldn’t do anyway. I mean, it is such a political hack. So then Jefferson, once he gets in, they repealed the Judiciary Act of 1801, which is what Marshall was trying to do and Marshall said, that’s unconstitutional, you can’t repeal that Act.

The other Judges on Marshall’s court said, oh, yes, they can repeal that Act. And so the other judges upheld that repeal as constitutional, even though Marshall said it wasn’t. I mean, everything about this stinks to high heaven of a purely political guy tried to use the court to do something. And for law schools today to teach that this is one of the glorious acts that established judicial review; this thing smells like a dead skunk, man.

Signed, Sealed and Never Delivered


What a slimy foundation for judiciary review, right?


Exactly right.


I was trying to think of a way to describe the guys that gave us the 1789 Judicial Act. You know, those were about the most founding of Founding, Founding Fathers, those guys actually did everything . And I couldn’t help, as you were describing that I was thinking about one of my law professors, he would come in with his guitar and some of the cases he would make up songs about it like he had he had this song Rolling Comancheros that was rolling down the river, but it was about this Comancheros case.

I should have asked him to write a song for Signed, Sealed and Never Delivered, Not a Judge. That would be so funny. We should write that song and play it on the air. Wow! What a great question by the way. Really appreciate the questions out there and what a great education here on Foundations of Freedom Thursday. We’ve got to take a break, guys, we’ll be back in just a moment. You’re listening to WallBuilders Live.

The Courageous Leaders Collection

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. And I know oftentimes we, parents, we’re trying to find good content for our kids to read. And if you remember back to the Bible, to the book of Hebrews, it has the faith Hall of Fame where they outline 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 in our faith as well.

I want 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. And there’s a second collection called Heroes of History.

In this collection, you’ll read about people like Benjamin Franklin or Christopher Columbus, Daniel Boone, George Washington, Harriet Tubman; friends, 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 www.wallbuilders.com. That’s www.wallbuilders.com.


We’re back here on WallBuilders Live. Thanks for staying with us on this Foundations of Freedom Thursday. We are getting to as many of your questions as we can, but sometimes we get a really fun one and it takes up half the program. So, thank you very much to Lewis for sending in a great question on judicial review.

Next question is going to come from John, and it’s about, let’s see, COS and Electoral College votes. Here we go. He said, “First, let me thank all three of you for all you do in helping save our great nation.” And the three he’s talking to are David, Tim and Justin, our producer. He said, “You guys are truly a godsend. My name is John Earl and I’m a Constitution coach and a Convention of States volunteer activist in the free state of Florida.”

National Popular Vote

Hey, guys, I think he’s getting a dig in on us right there about how much more free Florida is these days. “I have been teaching biblical citizenship to a group of COS supporters across the state, and a question about popular vote came up in class six. After researching it during class, we were quite concerned about the number of states that have passed this into law. States representing 195 electoral votes have passed it.

“Is it true that if enough states pass it to reach 270, the national popular vote will become law? Is this constitutional? Is there any way to stop it at this point? I could see this causing a huge problem in the 2024 election. Thanks for all you do. Years in Liberty, John.”

John, great question. Of course, guys, we do cover this in Constitution Alive and Biblical Citizenship. It is getting close. If they hit 270, it basically defacto kicks in the national popular vote because if enough states that have adopted it get 270 based on national popular vote, then electoral college will really not matter anymore. And the Constitution does leave it up to the states, they get to decide how they want to assign their electoral votes. So technically, you could say it’s constitutional, but boy, it sure breaks the spirit of the Constitution and the whole purpose of the Electoral College.


Yeah, you have to have an electoral college, that’s required by the Constitution. To not have one, you would have to have a constitutional amendment to get rid of it. But, Rick, as you said, an Article II, at least the states at time places the manners of those elections, so the states can decide how they award their electoral votes. And what has been done up to this point is the electoral votes, let’s say New York, the majority vote of New York goes for Democrat.

The Electoral College

The Democrat gets all the electoral votes in that presidential election. But what this says is, okay, we states that are banded together, we’re going to say whoever wins the national popular vote, we’re going to give our votes to that person, not to the one who wins our state.

So the way this would happen, imagine that you’re in Washington, DC, which voted 97% Democrat and let’s say that in the election of 2020, Donald Trump wins and you’re part of the national popular vote, that just means all the electoral votes of Washington, DC went to Donald Trump. Now, you think that might create a little ranchos in that?


Wondered how they feel about, yeah.


Yeah. Or on the other hand, let’s say that let’s say that Biden wins and all the electoral votes of Wyoming, which is a heavy Republican state, suddenly went to Biden instead of Trump or whoever they voted for. So what this does is it creates a pact among the states that says we’re not going to give our electoral votes to whoever won our state. We’re giving our electoral votes to whoever won the nation. And what this does is it empowers the big states to have a whole lot more clout.

If you’re Wyoming with one congressman or you’re California with 52 congressman man, California’s got 52 times more clout than does Wyoming when it comes to the presidential vote. So, you could get literally five states to combined, and you could get the 270 through those five essentially or population-wise. You’d have to get more than that. You have to get 11 states on the electoral vote.

The Real Problem

But 11 states could overcome the other basically 39 or 40 and crush them. And that’s a real problem with the national popular vote, is you lose the identity of smaller states, of individual states, of rural states, of industrial states, whatever, you have to become an urban state to win it.


And guys, one of the things too worth pointing out is the Founding Fathers did believe in some level of state sovereignty, and they recognize that states ought to have the ability and flexibility to determine their election process on some level. You have to have electorates, but you get to choose how you assign those and the process for that. And so there is flexibility within the states.

And so what we’re discussing is maybe not necessarily is it constitutional, but how stupid is the idea. Because arguably they can totally do this, the states can do this. But one of the things that that Thomas Sole made a great point about decades ago was he called it level one or stage one thinking, where people make decisions based on the temporary repercussions that the temporary gratification, the instant gratification of that decision.

And they look very sure sidedly and say this would be great because the argument today is people here, well, we in America, we’re in a democracy instead of recognizing actually we are in a constitutional republic. We are in a republic where the republic and our leaders are elected officials are limited according to the Constitution. That’s why in the Pledge of Allegiance, it says it’s to the republic for which the flag stands. That’s part of the very nature of our nation.

And we have a left right now that’s saying they will no longer even use the words constitution or republic, they will only use democracy. And it’s this kind of language that’s led a population to think, well, if we’re a democracy, then the majority should win, not recognizing the founding fathers in brilliance said there needs to be a way where it’s not just the majority of the population.

True Representation

As we’ve identified before, if you look at simply the majority of the population and the Founding Fathers were not a entire majority at all, the Founding Fathers believed in the consent of the governed that they put in the Constitution starts off with we, the people of the United States, it absolutely was about the people. But they recognize it shouldn’t be a mere majority in a democracy because the emotions, the mood of people can be swayed; there needed to be some boundaries and checks and balances.

If we looked only at the population, we know right now there are 20 cities where the majority of the population of America lives in 20 cities. If we said we will only do the national popular vote, then all presidential candidates would need to do is go to those 20 cities which right now those cities largely vote Democrat. The bigger the city is, it seems the more liberal, the more Democratic they are.

Education is Key

And so you’re talking about having Democrats who would only go to those 20 cities and those 20 cities will then choose the leader for the rest of the nation. That is not a healthy thing for the nation. And that’s not a president who represents the entire nation. It’s a president who represents those 20 cities.

The Founding Fathers in their brilliance recognize that you need to represent not just the majority of the population, but the majority of the population and the majority of the counties that are spread throughout the states. It really strategic in what they do with the Electoral College. It’s one more area of their brilliance.

And for people who want a deeper dove in, there are some great places to go where even on Prager University, they have a couple of good videos about the Electoral College, which gives more context and understanding. This is a good deal and it does need to be defended.


And by the way, right now, I think it’s a total of 17 states that have passed that popular national vote compact, and it’s pretty much stalled out. Those are the really hard core blue states. And the purple states are getting a lot of pushback and they don’t have a consensus in those states yet. And that’s going to be really, really hard for them to get the 270 electoral votes together to commit to a national popular vote.

So at this point, we’ve got a little bit of reprieve as long as we can keep educating. And Tim, as you pointed out, keep it a republic rather than a democracy. There’s a chance to stop this stuff and it has kind of stalled for a little bit if we can just keep the education going on it.

Judicial Review, National Popular Vote, And More – On Foundations Of Freedom


Alright, friends, that’s it for today. We’ve got more of your questions to get to, but we just don’t have time in today’s Foundation of Freedom Thursday. So make sure you tune in next week for Foundations of Freedom Thursday and every week on Thursdays.

And of course, Fridays, Good News Friday, that’s your chance to get a little pick me up, a little bit of encouragement as you hear about victories across the nation. And then Monday through Wednesday, we typically have some interviews with some great folks from across the nation that are on the front lines engaging in the culture, folks with solutions. You know, that’s the thing.

Here at WallBuilders Live, we don’t just complain about what’s going on, we don’t just talk about how bad things are. We go in eyes wide open, we say, look, here’s the good, the bad and the ugly. Here’s what we can learn from all three and here’s what we can do about it. Here’s how we can take that bad and ugly and turn it into good.

What the enemy means for evil, God can turn to good any time and we get to be the catalyst for doing that and we encourage you to do the exact same thing. Go to Wallbuilders.com today, get you some good materials, sit around with your family, study in those things, talking about those things and become a part of the solution.

Thanks so much for listening today. You’ve been listening to WallBuilders Live.