Can There Be A Limit On The Number Of Supreme Court Justices: Its 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 most pressing questions!
Air Date: 09/26/2019
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.
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.”
The Story of WallBuilders
Welcome to the intersection of faith in the culture. This is WallBuilders Live! Now, even right there if you’re first time listener you heard that you’re not WallBuilders. What in the world is WallBuilders.
Well, WallBuilders is not a construction company, not building a wall on the border. Now, we have some pretty strong opinions about making sure we’re a strong nation that has a good, strong border as well. But, that’s not what this “WallBuilders” name is about.
“WallBuilders” comes from a scripture in Nehemiah that says: “Arise and rebuild the walls that we may no longer be a reproach.” You see, friends, you’ve got to have a good, strong foundation in a nation. Back then, it was those outer walls that made that city strong.
Today it’s that foundation of principles, good principles of liberty, good structures in your political and economic systems, that make a nation strong America had those, was founded with that. Certainly, we have our mistakes and have done wrong; but, those principles, better than anyone else on the planet or any nation in history, produced incredible results.
Cracks in the Foundation
But, there have been cracks in the foundation. There has been an erosion of those principles and an erosion of that foundation. And so, 30 years ago, David Barton was reading that in Nehemiah, and the Lord said, “Read it over and over and over again.”
So, he read the book of Nehemiah every day for a month, and many things jumped out at him about how to strengthen the culture and society. He started this ministry, WallBuilders, to rebuild that foundation, to “arise and rebuild the walls that we may no longer be a reproach.”
Here we are now with WallBuilders Live!, our radio program that goes all across the nation and actually around the world. We’re on stations in every state and in many nations across the country, where people are rediscovering the roots of America, learning what we’re all about as a nation: what makes us strong and how to restore those constitutional foundations.
You can be a part of that. Every day on this program, we talk about action steps: things you can do to make a difference in your community, state, and nation. And, we would ask that you do that even as you’re listening today, to be thinking about what you can do in your community to make a difference, how you can step up as a citizen.
We will equip and inspire you to do that. Visit our website WallBuildersLive.com to learn more. You can also make a contribution there.
I ask for that without hesitation because I know we’re good stewards of those contributions. We take that and invested in the culture, in pastors going to Washington D.C. and learning more about the spiritual heritage of our nation, in young leaders that we need to have that foundation so that they can be the ones running for office soon or leading in the culture: making movies, television shows, sermons in the pulpit, workig in business, and all the areas of the culture.
We invest in educating Americans across the nation through Constitution classes. Hundreds of them are all over the nation where people are diving into Constitution Alive! with David Barton, myself, Tim Barton, and others. They are learning about those foundations then taking action.
You can be a part of all of that. Go to WallBuildersLive.com today, get some of those materials, make a contribution to help make this program possible. Then, become a part of our team; we sure appreciate you doing that.
We’re here with David Barton, America’s premier historian and the founder of WallBuilders. Also, Tim Barton, national speaker, pastor and president of WallBuilders, and my name is Rick Green, I’m a former Texas state legislator, national speaker, and author.
The Judiciary: Not an Independent Branch
We’re gonna have some fun today diving into those questions. David, Tim, here we go. The first question is about the Supreme Court: “Would you agree to a constitutional amendment limiting the number of Supreme Court judges?”
Okay, guys, I’ve got to set this question up, I guess, because we need to make sure people know the Constitution doesn’t set that number. It’s set by Congress and the president, right?
That is set by Congress and the president. As the Founding Fathers pointed out when they did the first Judiciary Act. This is not an independent branch of government, judiciary, because it does not have the power to organize itself. It has to be organized by the other two branches.
They cannot determine anything, even about how long they meet. It’s Congress that determines how long the session is, which is currently nine months. Congress determines how many justices will be on the court as well as all their jurisdiction, except for what is called “original jurisdiction,” just a few items list in the Constitution.
Everything else, the Court has to get permission from Congress to be able to look at that issue, and on it goes. So, this is not an independent branch, according the Founding Fathers but is organized by the other two, which is the point you’re making, Rick: it is the other two branches that make the decision about what goes on at the Supreme Court in so many procedural and structural ways.
Okay. So, it’s set by Congress and the president. I think the question, and maybe what they’re worried about, is if a president and Congress were to collude to say, “Add a whole bunch of people to the Court.” So, that president could name a bunch.
I’m not sure if that’s the concern they have. Personally, I’d like to see more members on the Court; then, it would be less of a big deal when somebody got nominated. We wouldn’t have five people able to make law for the whole country.
But, anyway, I don’t know. A Constitutional Amendment for this, though?
Rick, to that point, there is an argument out there that, when Trump gets replaced, whoever the next president is on the Democrat side should put more Supreme Court justices there. That way, Trumps few appointments could not change what they’re arguing, alright? These long-standing practices such as, abortion.
Basically dilute those two.
Right. They are afraid they’re going to lose these things that are not longstanding, constitutional positions, but are things that activist courts with activist judges have come out to counter what the Constitution says. But, there was an argument saying that the next president who is a Democrat should just put more justices there.
Even Ruth Bader Ginsburg Talks Down Craziness
Well, even Ruth Bader Ginsburg, a justice on the Supreme Court right now, said that, no, we don’t need more; nine is okay. But, the reason I point her out, is she’s even someone trying to talk down some of the craziness from the other side. Yet, at this point, I don’t know that we need a constitutional amendment, because I don’t see that necessarily being a reality that’s going to happen, as far as it being a danger we’re concerned about.
However, Rick, if, to your point, we think it would be beneficial for there to be more justices so that there are not just five people making law. With the political division we have today, I don’t think it matters if you have nine or 90. With how polarized people are, you don’t have many people that are saying, “Let’s follow the Constitution.”
And, it does seem that more times than not, a Democrat president is appointing much more liberal, activist kind of judges who believe in a “living Constitution” and that the Constitution isn’t what it says it is. So, it does seem it might be easier to corral some of the craziness having less justices there. But, if we had a position where people believed in upholding, supporting, and defending what the Constitution says and how it should apply, based on original intent, I don’t think the number would matter at all.
However, the concern that when Trump leaves we’re going to have a Democrat president who’s will to put a lot of justices to change a lot of the positive things that have happened, or negate some of the negative things from being overturned, I don’t know that that’s a reality.
Congress Can change the Number of Justices.
And, there’s really a couple of things that go with this. Really, Congress has the power right now to change the number of justices. You don’t have to have a constitutional amendment.
Now, if you want a constitutional amendment to say, “Hey, we don’t want the Democrats to come in, blow up the courts, and add 15 more judges so that they can keep Roe v. Wade.” All right, if you’re trying to limit everything in the future, yes, do a constitutional amendment. But also, remember that whatever you do is going to apply equally to both sides.
So, you may find that you’ve just tied your own hands on this. And, for me, it’s not how many justices are on the Court, but whether they understand the Constitution or not. I don’t care if you have 99 or one; if they uphold the Constitution and follow constitutional intent, design, and prerogative; if they do what they’re supposed to do, the number is not there.
The more important thing is the philosophy of the justices you put on the Court. So, in this case, I don’t think there’s any chance you get a constitutional amendment because you’re looking at two-thirds of the House and two-thirds of the Senate that have to go along with it. Then, three-fourths of the states have to have their legislatures ratify that.
And, there is just absolutely no way you’re going to get that done on this particular issue. So, I don’t think we need a constitutional amendment. And, as Tim pointed out, this is a lot of clamor by Democrats on the other side, because they do believe Roe v. Wade is going to fall. So, for them, man, that’s when their god, Dagon—to go back to the Bible story.
Dagon is Falling
Their god, Dagon, has fallen down, and they’ve got to prop him back up again. So, this is a big deal for them. This is kind of like the apex of what they believe, and to see that fall is going to be a big deal.
That’s why all the clamor. But, it’s not going anywhere. I know a constitutional amendment is not going anywhere.
I don’t even think you can get a bill through Congress to change the number of justices on the Court, despite all the hyperbole about the Democrats on their side.
Quick break, guys. We’ve got more questions coming up. Folks, send in your questions to [email protected] Hang on; we’ll be right back.
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.”
This is David Barton with another moment from America’s history. Around 1790 the infamous Thomas Paine wrote his age of reason attacking religion and Christianity. Interestingly, one of the strongest defenders against Payne’s attack was Benjamin Franklin.
In fact, he stiffly rebuked and told him, “He that spits in the wind spits in his own face. Do you imagine any good would be done by this attack against religion. Think how great a portion of mankind consists of youth who have need of the motives of religion to restrain them from violence to support their virtue. I would advise you not to attempt unchaining the tiger but to burn this piece before it is seen by any other person. If men are so wicked with religion what would they be if without it?”
Benjamin Franklin believed that the practice of religion was one of the greatest assets of American society. For more information on God’s hand in American history. Contact WallBuilders at 1-800-8-REBUILD.
Be At All Times Armed
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.”
Welcome back. Thanks for staying with us here at WallBuilders Live! It’s Foundations of Freedom Thursday today, and you can get more answers to questions like these from our audience, at our website WallBuidlersLive.com by clicking on the archives. Then, you can send your questions in to [email protected]
Here is the next question all the way from Cheyenne, Wyoming: “I’ve seen this scenario play out,” the question starts. “A person is confronted by law enforcement and shows that he is legally armed with a concealed handgun. Afterwards, he’s arrested for having an illegal knife.
“I wonder how government can accept that he is responsible with a firearm but not with a blade. My question is this: Does the right to keep and bear arms refer only to firearms, or could it also include other weapons, such as blades, batons, Mace, TASERs, etc.?”
Wow. Very intriguing questions. I would even throw maybe a bow in there, guys.
Yeah, it is a great question. Although, I cannot imagine the scenario–at least, being a Texan, so that that’s the context of my understanding. I can’t imagine a scenario where an officer comes up and says, “Hey, can I see your license.”
“Oh, yes sir. Also, here’s my concealed carry permit, because I also do have a firearm.” And, in Texas, the officer’s next question always is What gun are you carrying?
I can’t imagine having this conversation, right, where whatever gun I happen to be carrying that day, and I tell the officer. Then the officer is like, “Oh hey, what’s that little clip in your pocket? Oh, it’s a pocket knife? Really? Can I see it?”
I pull it out. It’s like, “Ooh, you know what? Only allowed to have a blade that’s three inches; this one’s three-and-a-half. I’m going to have to take you to jail.”
In What State?
What officer or what state? Maybe that’s the better question: What state says that you can have a gun and not a knife? This is just one of the most ludicrous thoughts ever.
Now, I’m saying that as a Texan. I think in Texas we probably can carry swords; that’s probably legal. I don’t know and haven’t tried; it probably is, though.
The idea that you can have a gun and not other weapons–the gun, to me it would seem, would be the hardest thing to get approved because of, perhaps, because of the ease of lethality with a gun as opposed to a knife, other blunt object, or instrument. But, the point is, the Second Amendment is recognizing a law of nature that was given by God, as well as, we could even argue, some biblical truths.
But, it’s something that God put in nature: the ability for everything He created to defend itself, whether it flies, runs, or it fights with fangs or claws. Whatever it Is, everything will defend itself if its life is threatened. If it can’t get away, it’s going to turn to come after you.
It Is a Law of Nature
This is a law of nature. And, the reason we recognized in the Second Amendment, the right of the people “to keep and bear arms” or to have guns that cannot be taken away, was because that was the most effective way of defending yourself. But, if you’re constitutionally allowed to have the most effective way of defending yourself, you certainly are allowed to have a less-effective way of defending yourself, right?
This–oh my gosh; this is so silly. It’s like saying, “Well, you can carry a gun, but you can’t use your hands.”
No, my hands are not as effective as a gun. If I—
If I’m John Wick, can I use a pencil? Or, is that banned in the Second Amendment?
Right. Let’s start going through some of these guys that are out there and what they can do. But, but this is an utterly ludicrous thing.
And so, the officer certainly is in the wrong for this; but, if the officer’s upholding the law–maybe it’s good-hearted officer who says, “I’m so sorry. This is dumb, but if I report I saw you with this blade and didn’t take you, in I’m in trouble.” Maybe it was a good-hearted officer who is stuck by a bad law.
Second Amendment: the Right of Self-Defense
Whatever it is, either we need to have an officer that says, “Hey, this law is unconstitutional; therefore, I’m not going to enforce it against you. Which, there are examples of county sheriffs and police officers who recognize some laws that are unconstitutional and may say, “Hey, I’m not gonna enforce an unconstitutional law.
“So, I’m going to let this one slide. You’re good. Go ahead and leave. We’re done; I’m not doing this.”
We need officers who understand what the Constitution is about. But also, certainly we’ve got to get that law changed, because it is utterly ridiculous. Plus, it is anti the Second Amendment.
The Second Amendment about the right of self-defense, Ultimately from a tyrannical government. You’re going to be better off defending yourself from tyranny, from oppression, from bad guys having a gun, as opposed to a knife, a baseball bat, or a hammer. But, if we recognize you can have what brings that the easiest lethality to the engagement, certainly it recognizes what is less-lethal in those same defense scenarios.
So, yes, a knife is totally included.
Now, great answer, Tim. We’re gonna take a quick break, guys. We have more questions.
We’ll be right back here on WallBuilders Live!
Greatest Political Privilege
President Calvin Coolidge said, “The more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”
Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know. But, it gets frustrating because you don’t know where to look for truth about the Constitution either.
Well, we’ve got a special program for you available now called Constitution Alive! with David Barton and Rick Green. It’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the Cradle of Liberty and Independence Hall and to the WallBuilders’ library where David Barton brings the history to life to teach the original intent of our Founding Fathers.
We call it the QuickStart guide to the Constitution because in just a few hours through these videos you will learn the Citizen’s Guide to America’s Constitution. You’ll learn what you need to do to help save our Constitutional Republic. It’s fun! It’s entertaining! And, it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now at WallBuilders.com.
Questions of Power
Thomas Jefferson said, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
We’re back to WallBuilders Live! Thanks for staying with us for Foundations of Freedom Thursday today. Be sure to send in those questions to [email protected]
The next one is from somebody that was watching our Constitutional Alive! program. So, first of all, thank you for watching Constitutional Alive! and studying the Constitution. But, here’s the question.
“I was listening to a portion of Constitutional Alive! that touched on Convention of States that was recently played on the radio program.” Okay, so they were listening to it on the radio program. Well, get the DVDs; you’ll enjoy them because you’ll get to see the library at WallBuilders and lots of cool stuff come to life.
Balanced Budget Amendment
You’ll get to learn in Independents Hall. Sidetracked, sorry for that guys. Here we go.
“I have some questions and comments on a couple of these suggested amendments to the U.S. Constitution that you guys listed. The first was a Balanced Budget Amendment. Aren’t there two ways to balance a budget?
“Cutting any government budget is normally the preferred course; but, what would stop the government from balancing the budget by increasing the income by raising taxes?” Well, let’s tackle that one, guys. What do you think? So, if we had a constitutionAL amendment requiring a balanced budget, is there a danger that they will then just raise taxes in order to comply with that?
Well, the question is What would stop the government from balancing the budget by increasing income by raising taxes? Nothing, because that’s what they do all the time right now.
They do it right now, exactly.
This is what Congress does every budget session. They used to try to have a combination of the two: try to reduce spending and raise taxes. Now, they don’t even try to reduce spending but just try to raise taxes.
So, this will always be an option out there, unless you can explicitly say, “You cannot raise taxes more than a certain percent every year. You can’t raise taxes by more than the cost of living,” whatever it is. You can put some kind of a cap on that.
Then, if you get into a depression, you’re really in trouble because you’ve got less income coming in, because you’re your income level will be dropping yet you still have the expenses of all the entitlement programs.
So, I doubt that they would ever get any kind of provision like that in a constitutional amendment. But, you just need to do something to say, “You’ve got to balance this thing.” And, if they try to raise taxes, let all the people yell, shout, and holler.
Let them throw them out of office, which we have seen happen before. So, there is no guarantee they would not do that, because that is what they’re used to doing every single session right now.
Two Different Issues
Yeah it’s almost two different issues, right? It’s the issue of We don’t want any more debt. We don’t want you to borrow in order to do these programs.
If you’re going to do them, you got to pay the piper right now, which means you’ve got to take more money from the American people, which means we’re going to get hacked off.
And, we’re going to hold you accountable for that. Whereas, when they borrow it, sometimes the American people have no idea. They’re not paying attention, don’t realize.
Most Americans don’t know we’ve got–what is it? Twenty-two trillion on the books right now? Or, 100-whatever trillion in unfunded mandates and down-the-road things.
It’s really two different issues. And, I think at least if we had the Balanced Budget Amendment, they would have to come to the American people and demand more money to be able to pay for their for their programs.
Here’s our final question, guys. It’s from the same gentleman. He’s asking about amendments that we talked about in Constitution Alive!
And, the second one we talked about was term limits. He said, “We’ve had term limits California for quite–” by the way, listeners, you might have fun on this one because the Barton’s and the Greens have a really fun debate that goes on and on and on on term limits.
Anyway here we go. “We’ve had term limits California for quite a few years now. And, one of the unintended consequences is the increased power that lobbyist now have over the relatively inexperienced elected members of the Assembly and Senate.
“I would think that some sort of restrictions would need to be in place that would prevent any former member of the House or Senate from being involved in any official or monetarily-compensated way from influencing writing or directing any legislation for a period of time.”
Okay, guys. So, if a term-limits amendment is passed, like the one Mark Levin has proposed in Liberty Amendments, would we need to also, in any way, limit what members could do in terms of lobbying? I think, again, it’s two different issues, right?
Because we’ve got this problem he’s talking about. It happens right now, where people get elected, serve a few years or a lot of years, and then go make a ton of money as a lobbyist. And, I just don’t know. I’ve never been for stopping that, cause I don’t even know how or if you can actually say that somebody can’t do a particular job.
That’s kind of a free market thing to me.
Yeah, there’s a couple of things going here. And, I will say, as you pointed out, Rick, we differ on this issue back and forth. And so, it’s a fun debate for us to have.
Not on the position of lobbyists, but on term limits.
On term limits, we would differ on that. So, I’ll do my advocacy bit here. Currently, right now, the average length of time that a member of Congress serves is seven years.
So, that average length of time is already under what the term limit would allow, which shows the people do a pretty good job of having turnover. Just the percentage of congressmen–I think it’s nearly 50 percent new congressmen over the last three elections. We’ve had nearly half the House turnover.
So, that’s without term limits. I’m a fan of not limiting the power of the people. And, I agree that it empowers lobbyists.
Term Limits on Unelected Positions
I also think that it empowers staff way too much. If you want to have term limits, I think you should have term limits on the unelected people. You should have term limits on the bureaucrats, heads of agencies, and all the other things because they have most of the power in state government, federal government, et cetera.
Put some term limits on the ones that people can’t get to. So, within that framework, I agree that the unintended consequence is there. But, I understand also–and a lot of states do have a ban on state legislators coming back to lobby government for one or two years, whatever because they know the process too well as well as how to work it.
So much, Rick, as you know, of government relations is relational stuff. And, they already know the legislators.
And, it’s not just that they know the process. It’s that they know how to manipulate the process and use it for the benefit of whoever is going to give them the most money. And so, it’s not that we don’t want people who are there and know how the process works.
We don’t want people who are going to be there who abuse the process for their own personal gain. And, this is why some states have put limitations on, after you’ve been elected and you’ve served so many years, you can’t come back as a lobbyist directly for, again, whatever the X number of years is.
We Agree on the Problem
And, Rick, this is where even though there’s some difference of thought with the idea of term limits, we all agree with the same problem, right? We don’t want to see your Nancy Pelosi’s, Harry Reid’s, and some of these people who have been there for 30 and 40 years. We don’t want to see those people there anymore either.
So, we have the same kind of underlying premise of what we don’t like. And this is where sometimes you disagree about the solution, where I would think that people have the right to elect whoever they want to elect. However, with that being said, the argument in favor of term limits is: Yes, but look how detrimental it has been with some of these people being there, even though maybe half of Congress is turned over in the last election.
You haven’t had to turn over from Nancy Pelosi in how many years? Right? She’s been elected how many times?
But, I would argue that I should yell more at San Francisco than the system. It’s the voters of San Francisco that apparently like that kind of incompetence because they keep sending her back.
Well, and then they do. This is why, from the outside perspective, having term limits would help mitigate some of what that damage is. The other side I would argue, “Yeah, but they’re going to somebody else that believes just what she believes, may be even worse, because that’s the direction that so many of the Liberals have gone, even more progressive.”
But, that person wouldn’t have the same level of power because they wouldn’t have the 30 years of relationships.
There’s no doubt about it.
So, even if it’s another liberal, at least you shifted that power. Or, even to say, use the phrase, that you had a “separation of powers” among more people. That’s what I like about it, is that it spreads it out.
Nobody serves for 30, 40 years. It’s worked well on the president side of things, in implementing term limits there. It has kept us from having a king-like situation with 15, 16, 20, 25 years, however long somebody could go.
Term Limits on Judges
And, I think it would serve us well, especially with judges. I’d love to see judges limited to 10 or 20 years. Then, they’re gone; we get somebody else in there.
So, it’s more of a forced separation of powers, based on how you structure the system. Just like we require a certain age, and you’ve got to be from a certain area, then we just say, “Certain people can’t serve anymore after they’ve been there for that long.”
Well, as David said, that’s one of those issues we have fun debating here on the program. We have different perspectives on it. It is a process issue.
So, I do think there’s room for disagreement. As we said earlier the program, we want the same outcome: good people serving in office, bad people not there or at least going home as soon as possible kind-of –a thing. But, there are different ways to get there.
There are some experiments happening across the country, as people try this as well, to see what the best solution is going to be. One of the most important takeaways, I think, is that we are constantly looking for those solutions and don’t give up on the system. We look for ways to improve it, as the preamble the Constitution says, we’re “becoming a more perfect union.”
Can There Be A Limit On The Number Of Supreme Court Justices
And, there are always things that we can do. Certainly, that requires engagement and involvement on our part. So, WallBuilders Live! is about equipping and inspiring you to do that: to study what makes a good society.
What are the things that work and that don’t work? We can learn from history, from the Constitution, from the Bible, how to do this right in our cultures and our societies. And, that’s why we love Foundations of Freedom Thursday and the opportunity to answer your questions on these subjects.
So, please send them in to [email protected] We thank you so much for listening today. Be sure to visit our websites WallBuilders.com and WallBuildersLive.com.
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Samuel Adams said, “The liberties of our country and the freedom of our civil Constitution are worth defending against all hazards. And, it is our duty to defend them against all attacks.”