David Barton On The 10th Amendment – Profamily Legislators Conference Part 2 – What should the federal government actually be doing? What should be left to the states? If you want to be informed on this and to hear more, tune in to hear part 2 of David Barton on the 10th amendment!
Air Date: 04/02/2021
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Transcription note: Â As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.
Welcome to the intersection of faith and the culture. It’s WallBuilders Live. Thanks for joining us today. Today, we’re actually jumping right back in where we left off yesterday with David Barton teaching at the ProFamily Legislators Conference on the Tenth Amendment.
So if you missed yesterday, you can get that at our website, wallbuilderslive.com. While you’re at the website, wallbuilderslive.com, I would certainly appreciate it, our listeners would appreciate it, and frankly, new people that haven’t heard our program yet would appreciate it if you would consider making a contribution. When you make those contributions to wallbuilderslive.com, it allows us to expand this program, reach more people, and therefore have a better chance of saving this constitutional republic. Please consider doing that a wallbuilderslive.com today.
My name is Rick Green. I’m a former Texas legislator and America’s Constitution coach. David Barton is who you’re about to hear from, and again, if you missed yesterday, that program is available at the website. But today we’re going to get the conclusion of his presentation at the ProFamily Legislators Conference on the Tenth Amendment. David is America’s premier historian. His family’s museum and library is unbelievable. It’s the largest private collection of Founding Fathers documents. It’s just incredible. And it’s why he’s able to go back and say what did they mean by the Tenth Amendment, because he goes to the original sources. Let’s pick up where we left off yesterday with David Barton on the Tenth Amendment.
Having a commander in chief is simply part of what we just told you, you provide for the common defense. So you protect the whole nation, military protects the whole nation. And as part of protecting, the president gets to be the commander in chief. That’s not a new power to say he’s commander in chief, that’s simply helping implement the power that was given in Article 1. In the same way, also, an Article 2, the President in Article 2, authority to make treaties and appoint ambassadors is part of the Article 1 power to regulate commerce with foreign nations.
So since the Constitution says, hey, we states, we’re not going to be the ones deal of foreign nations, the federal government will do that, and since the federal government will do that, while you’re at it, you can go ahead and make treaties and appoint ambassadors. But that’s all part of international relations.
So as you look at the 17 powers, here’s what they are. The first area is it says that the federal government can raise revenue to pay off federal debt to protect the nation and fulfill the obligations established in enumerated powers. Feds can raise money to do the 17 things the Constitution says they can do. That’s where it says, to lay and collect taxes, duties, imposts, and excises, to pay the debts. So that’s the constitutional clause that gives that power to Congress.
The second one, they may borrow money on the credit of the United States, that’s a direct quote out of the Constitution. That tells you exactly what they can do. The third one, they can protect the free enterprise system and ensure the free flow of commerce, that’s a clause we mentioned this morning, to regulate commerce with foreign nations and among the several States and with the Indian tribes.
So we’re going to make sure there’s a free flow of commerce regulate by the way doesn’t mean they regulate. I mean, the interstate commerce clause was to make sure that Georgia couldn’t prohibit their products from going into South Carolina or wherever. I mean this to make sure there’s a free flow of commerce among all the states in the union. So that’s what it meant to regulate, that was to make sure it couldn’t be shut down. It doesn’t mean you can regulate till you shut it down. That’s the opposite.
So this intent was to make sure that nothing, I mean, if you had a state feud, and Texas and Oklahoma don’t like each other at football time, well, the federal government’s not going to let Texas ban all Oklahoma products from coming in. I mean it’s just not going to happen. So there’s a free flow of commerce within the United States.
Now, what happens when it states something else? Fourth is establishing immigration laws and processes. That’s the clause to establish uniform rule of naturalization. Fifth, establish the bankruptcy laws and processes and to uniform laws and subject bankruptcy. Again, these are all constitutional clauses. I’m just showing you the 17 things the Constitution allows. Six, established national currency, monitors supplied value and punish counterfeiters of that currency. There’s the constitutional clause.
Number seven is establish post offices and post roads, which is not the same as infrastructure and highways. Post offices and post roads, that’s different from every road that’s out there. Protect the private property of inventors, authors and artists. That’s the copyright clause, Article 1, Section 8, paragraph 8, then 8. Number nine is Congress, if so it wishes can create and regulate federal courts. Notice, if it’s so wishes. The only thing the Constitution requires is A, Supreme Court. And it doesn’t tell you how many justices and it only says here’s your original jurisdiction, three things that if they ever come will go to the Supreme Court, contest between states, contest between a citizen of the United States and another nation, and contest with another nation against United States. That’s all that goes to the Supreme Court in original jurisdiction. Everything else, Congress has to give them the authority to go to the Supreme Court. So they regulate the courts.
As a matter of fact, on 200 occasions, Congress uses Article 3 Section 2 what’s called the Exceptions Clause to say, Supreme Court, federal courts, you cannot touch this issue at all. Quite frankly, under the Constitution, Congress could end abortion without human rights amendment by simply saying, hey, we’re not go let the Supreme Court touch the issue of abortion anymore. It’s not an original jurisdiction issue, which means under the control of Congress, that comes in Article 3. So we established federal courts…
Alright, friends, quick break, we’ll be right back. You’re listening to WallBuilders Live.
This is Tim Barton from WallBuilders with another moment from American history. The Reverend James Caldwell was a famous minister during the American war for independence. His sermons taught liberty and God’s opposition to tyranny. The British hated him and tried to kill them.
So for his own protection, he would actually take loaded pistols with him into the pulpit and lay them beside his Bible as he preached. In the 1780 Battle of Springfield, the Americans ran out of wadding for their guns, which was like having no ammunition. Pastor Caldwell ran inside a nearby church and returned with an arm load of watts hymnals, the pages of which would provide the much needed warning. He took this great Bible based hymnal raised it in the air and shouted to the troops now put watts into them boys, this pastors ingenuity saved the day for the Americans.
For more information on Pastor James Caldwell and other colonial patriots, go to wallbuilders.com.
Welcome back to WallBuilders Live. Thanks for staying with us today. You’re listening to David Barton speak at the ProFamily Legislators Conference. We’ll dive right back in where we left off before the break.
Here’s the language. It says to constitute tribunals inferior to the Supreme Court. Any court below the Supreme Court is an act of Congress. Congress is the one who creates the judiciary except for the Supreme Court. And since the Constitution doesn’t tell us how many Justices in the Supreme Court and the original Congress gave George Washington said, you get one Chief Justice and five Associate Justices, well, now we’re up to nine. If Congress wanted to, they could reduce the entire federal judiciary to Chief Justice Roberts sitting at a card table with a candle. And that’d be completely constitutional. Congress has that authority to do so.
Now, because of what we don’t teach in civics today and because of what we do teach in law schools, we’ve lost separation of powers. One of the things when I was working with Majority Leader of Congress some years ago, we kept having all this trouble getting federal Judges under control. And the Constitution gives a six clauses by which we can bring federal Judges under control. And so I was telling them in Georgia is that problem you got is you got too many attorneys on the Judiciary Committee. Because the same law school that trains Judges, trains the attorneys that are sitting on judiciary committee, and you’ve lost your checks and balances because both of them believe the judiciary is supreme, and that whatever the courts say goes.
And so now judiciary won’t take on the courts, because that’s what courts are supposed to do. No, it’s not. And so that Majority Leader happened to get more than majority of members on the Judiciary Committee that were not attorneys and suddenly, we started having a lot of fun with courts. They started paying attention to what Congress said. And we had more clout and more ability to control what they do, more ability even to censure them, to call them in for hearings to explain why they’d done something stupid in a ruling. I mean, there’s just a lot more built in this under the Constitution.
So all of that, anything below the Chief Justice or a Supreme Court is everything in Congress, to define and punish piracies and felonies committed on the high seas and offenses against the law of nations. That’s number 10, directly out of the Constitution. Number 11, declare war grant letters of marque and reprisal make rules concerning the captures on land and water. Number 12, provide for make rules for national military. There’s a clause talks about what federal Congress can do with the military or federal government. Number 13, calling forth and training the state and local militias for national needs. Here’s the clause in the Constitution. Number 14, is overseeing and managing all federal property, including Washington, D.C., as well as military bases, federal buildings, etc. There’s the constitutional clause that deals with that.
Power in number 15 was to make all laws which shall be necessary and proper for carrying into execution the previous 14 powers and all other owners vested by this Constitution and the government of the United States, or in any department or officer thereof. So that’s 15 powers in Article 1.
Then you get Thirteenth Amendment, which the Thirteenth Amendment says prevent slavery. So the federal government prevents slavery. The Fourteenth Amendment says equal treatment for everyone. Everyone that’s a former slave is the same citizen, I mentioned this morning. In the southern states, they said, well, you may be free, but you’re not a citizen. No, everybody gets the equal rights of citizenship as a citizen. So those are the 17 enumerated powers.
Now, you take those 17 enumerated powers and outside, and by the way, James Wilson, who is an original justice on the US Supreme Court, he had the Constitution convention, is the second most active member of the convention, George Washington put him on the original Supreme Court as original justice. He wrote the first law books in America, started the first legal training in America, ran the first law school in America, all while he was sitting on the Supreme Court.
James Wilson talked about the Constitution in this regard. And he said, “I think there’s a subject for which the Constitution deserves approval; the accuracy with which the line is drawn between the powers of the federal and state governments.” No, not today, that’s a really blurry line. But not when you read the Constitution. It’s a really clear line. He says “The powers are minutely enumerated and defined as was possible.” Well, I mean, we really went down into details to say what the feds can do. And we didn’t leave ambiguity in there. What we said was very specific. He said that I think that’s the best part of the Constitution is we’re told exactly where that line is. This is what the feds can do. And this is what the states can do.
So what happens is, when you look at the issues that are there with the Constitution, the Tenth Amendment summed it up really well in the Bill of Rights. Tenth Amendment said the power is not delegated to the United States by the Constitution. And what powers are delegated by the states to the United States? 17. So other than those 17 powers delegated to the United States by the Constitution, nor prohibited to it by the States does 17, the rest of the powers are reserved to the states respectively, or to the people.
Now it’s interesting to see how the Founding Fathers said where that line was. So we’ve looked at the 17 powers. The Tenth Amendment says anything that’s not one of those 17 belongs in the state’s hands. So look at how the Founders defined it. Thomas Jefferson, he said, “I consider the foundation of the Constitution is laid on this ground. The foundation of the Constitution is built on the Tenth Amendment. All powers not delegated in United States by the Constitution are prohibited by the states are reserved to the states for the people.” That’s the Tenth Amendment. He said this is the foundation of the Constitution. This is what defines the role of state and federal governments.
He says to take a single step beyond the boundaries that’s specifically drawn around the powers of Congress is to take possession of a boundless field of federal power, no longer susceptible of any definition. Once you cross those 17, you won’t be able to tell where the states and feds are anymore, he said you will have lost control. US Supreme Court and a Supreme Court decision called Martin vs. Hunters lessees 1816, the decision written by Justice Story, who wrote the famous commentaries in the Constitution, one of the greatest constitutional commentaries ever, this is the way he explained in that decision.
He said “The sovereign powers vested in the state governments by their respective constitutions remained unaltered and unimpaired, except so far as they were granted federal government. So the federal government Constitution, Federal Constitution did not set aside any state Constitution. All it did was say these 17 powers now move over to the federal government. Everything else in your state Constitution stays exactly the same. If it’s one of these 17, now it moves over. He said, “These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognized by the amendment to the Constitution, which declares that the powers not delegated to the United States by the Constitution, nor prohibited to it by the states are reserved to the states respectively, or the people.”
So again, he said, I’m not just making this up. This is what the Tenth Amendment says. The Tenth Amendment says that all the state Constitutions get all the power except for these 17 issues. Everything else, we haven’t changed the thing in the original state Constitutions. Remember, those original state Constitutions, each state ran itself as if it were a separate nation. Until we became the United States under the Constitution, we had 13 independent nations, much like Europe. So those Constitutions dealt with everything.
Sorry to interrupt again, folks, but we’ve got to take that middle break. Here we go. We’ll be right back, stay tuned. David Barton will be back with us finishing up on the Tenth Amendment at the ProFamily Legislators Conference.
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. And 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.
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 constitutional live with David Barton and Rick green. You can find out more information on our website now and wall builders calm.
We’re back here on WallBuilders Live. Thanks for staying with us. Let’s jump right back in with David on the Tenth Amendment at the ProFamily Legislators Conference.
All of those 13 states had their own immigration laws. All of those 13 states had their own currency. If I went from North Carolina to South Carolina, I stop at the border, I change the currency. So all of that is there. What you have further is what’s the general dividing line between state and federal? Well, James Madison says it this way in Federalist 45. He says “The powers delegated by the Constitution to the federal government are few and defined.” 17 of them. “Those which remained in the state governments are numerous and indefinite. The powers reserved to the states will extend to all the objects which in the ordinary course of affairs concerns the life, the liberties and the properties of the people and the internal order improvement and prosperity of the state. The operation of the federal government will be most extensive important in times of war and danger of the state governments in times of peace and security.”
So you get a kind of line there that okay, national stuff or calamity, everything domestic is going to be over in the states, everything foreign is going to be with the federal government. Jefferson said the leading object that the Constitution was to live with states; all authorities which respected their own citizens only, and a transfer to the United States, those which respected citizens of foreign states. There it is, again. Foreign, if it’s deals with our citizens, it’s state; if it deals with other citizens and other nations, that’s what the feds come in.
He says “Can any good be effected by taking from the states the moral rule of their citizens and subordinating it to the federal authority?” Whether it be Roe v Wade, or the Obergefell decision or how we define marriage or any other issue, can you take moral authority from the states and subject it to the fed? He said no. Such an intention was impossible and would break up the foundations of the union. He said that is so unconstitutional, is unimaginable that moral decisions would be handed over to a national authority.
He said “The states can best govern our home concerns and the federal government, our foreign ones. I wish therefore never to see all offices transferred to Washington were further withdrawn from the eyes of the people they may be secretly bought and sold as at market.” So the dividing line is real clear. He said “The true theory of our Constitution is surely the wise isn’t the best, that the states are independent as to everything within themselves and united as to everything respecting foreign nations.” Now, you see, it’s a real clear line for them as foreign versus domestic.
Health care, is that a state or federal power? Interesting. Jefferson talked about that. He said very clearly. He says, the federal government is certify with the exact truth for every vessel sailing from a foreign part in the state of health which prevails at the place from which she sails, but the state authorities are charged with the care of the public health. So notice. “When it comes to health care, the feds deal with foreign port the state of health when a ship or people leave before an area.” States deal with everything else. They get all the care of public health. That’s not a federal program. That is a state program. All the feds do is what happens when you initially leave a nation to come in, foreign and domestic. Big differentiation.
You have the same thing when it comes to immigration. It’s interesting. Immigration was always a state issue. Now the feds had a role, because when you left that foreign port, there were certain things. You had to say when you came here, you cannot be a burden on the United States within five years after arriving. You have to have someone vast for good moral character. You have to have no criminal background. The immigration laws passed in 1797-1798 lay out all the foundations. What happens when you come in initially? Once you get the United States, you’re governed by state and immigration laws.
So a foreign or domestic, interestingly, in 1875 and 76, the US Supreme Court decided to change the immigration laws. Up till then, states were in charge of immigration, because if you came to the United States, you don’t live in the United States, you’re going to live in Oklahoma or Nebraska or Texas or Maryland or wherever. And that state needs to be able to say what they want in citizens of that state. It’s their state. So you didn’t move to the United States, you would end up in a specific state. There were general requirements to get in the United States in general, but then the states had the role of immigration. It was a state issue.
Until this decisions 1875 and 76, Henderson versus mayor of New York City and Ci Long vs. Freeman, at that point, the Supreme Court said, hey, we think that we really need to take immigration, that needs to become one of our issues. And so that’s the first time that immigration became a federal issue. It was at that point they started building Ellis Island. Ellis Island is the first federal immigrations facility in the United States.
There were no federal immigration facilities before that, because it was a state issue. The feds like health check at the foreign port and to make sure that as you come in, you meet these basic requirements, and after that we turn you over to the states. So states had a huge role in migration. We’ve kind of lost that as well, as you know. Some of the courts are now starting to give it back a little bit.
Jefferson said it this way, he said one of the members of the Constitution declared again the Tenth Amendment. He said “the Constitution of the United States delegated to Congress the power to punish treason, counterfeiting the securities and current coin in the United States, piracies and felonies committed in the high seas and offenses against the laws of nations and no other crimes whatever. At the time the Federal Constitution was written, there were three federal felonies. Today, there’s 4,500 federal felonies. Policing belongs to the States.
Alright, friends, the last break. And when we come back, we’ll get the final conclusion of David Barton at the ProFamily Legislators Conference speaking on the Tenth Amendment. Stay with us, you’re listening to WallBuilders Live.
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This is Tim Barton from WallBuilders with another moment from American history. American patriot Paul Revere wrote to alert Americans of the impending arrival of the British. But he also sought patriot leader Samuel Adams and John Hancock to warn them that the British were seeking their execution. Adams and Hancock were staying with the Reverend Jonas Clark in Lexington.
When they asked Pastor Clark if his church was ready for the approaching British, he replied, “I’ve trained them for this very hour, they will fight and if need be die under the shadow of the house of God.” Later that morning, 70 men from his church, a several 100 British in the first battle of the war for independence. As Pastor Clark affirmed, “The militias that morning were the same who filled the pews of the church meeting house on the Sunday morning before.” The American church was regularly at the forefront of the fight for liberty.
For more information on this pastor and other colonial patriots, go to wallbuilders.com.
We’re back here on WallBuilders Live. Thanks for staying with us, the final segment of the day. This is David Barton speaking at the pro family legislators conference on the Tenth Amendment. If you joined us late today, or you missed yesterday, all of this is available now at wallbuilderslive.com. Let’s jump back in and get the conclusion of the Tenth Amendment by David Barton.
Madison in 1791 on the floor of the US Congress, they were having a debate over what belong to the states and what belong to the feds. And Madison said without the constitutional lines that have been drawn, the Tenth Amendment lines, he said the federal government will “take the care of religion into their own hands. They may appoint teachers in every state, county and parish and pay them out of the public Treasury. They may take into their own hands the education of children establishing in like manner schools throughout the United States. They may assume provision for the poor. They may undertake the regulation of all roads other than post roads. In short, everything from the highest object is state legislation down to the most minute object to police would be thrown under the power of Congress.” He said this is unthinkable. We all know this is nightmare. Congress would never do this.
So notice what he said. He says “Things that do not belong to the feds,” he said were religion, education, teachers, schools, welfare and social programs, roads and infrastructure and crime and law enforcement.” That’s what he just went through and said there’s no way the feds will ever get involved in this. That’s why we have the Tenth Amendment. Look at all the issues that we’ve lost over that period of time.
Now, we have two resolutions we want to hand out to you that deal with the Tenth Amendment. But Tenth Amendment, this is the big issue. Here’s the opportunity we have. With the 220 Judges that have now been appointed by President Trump, these are more originalist than we’ve had on the court than any time in my lifetime, and I got white hair, we’ve never had this many originalists on the court.
And what we’re seeing is these guys are doing a great job of going back to the Constitution. So if you as a state were to start reasserting, hey, feds aren’t supposed to be in this and you make that argument to these federal Judges, you have a really high chance of winning in those cases. Because we now have originalist who know exactly what the Federalist Papers say. They actually read them. They read the Constitution.
It’s time to reassert the Tenth Amendment, quite frankly. It’s time to reassert checks and balances on federal overreach. We talked about gubernatorial overreach this morning, federal overreach is the other area. There’s two. There’s a resolution you can just pass in the state and Kevin and Ken have lots of others for you as well.
But the other one I want you to say is this one is to pass and give to your attorney general. And it urges your attorney general that anytime the state becomes a party to any federal lawsuit that he argues the Tenth Amendment is part of the reason the feds can’t get involved that. So whether it be immigration or whether it be voting or whether it be anything else that’s going on, urge your attorney general to start raising that issue, because he does not raise the issue, the courts will not address the issue. If he raises the issue, it gives the Judges an opportunity to comment on the issue and use that issue and saying, well, you’re right, the Tenth Amendment says this, and therefore the federal government cannot get involved in whatever it is.
The best way for the states to start taking back some of the powers that they originally had was to start arguing the Constitution for Judges that are willing to listen to the Constitution. And that’s an opportunity we have, again, that we’ve not had in my lifetime like we are having right now.
We’re winning federal court cases right now we haven’t won over 60 years. I mean, there are things going on in judiciary that are just phenomenal. And so we’ll cover some of that tomorrow. So that’s what I wanted to share on the Tenth Amendment, just to kind of get it back in your thinking, back in your head, is a big deal. It will make a big turn in restoring checks and balances between the state and federal level.
Alright, friends, that was David Barton speaking on the Tenth Amendment at the ProFamily Legislators Conference. Yesterday’s program is the first half of that presentation, and it’s available at our website right now wall builderslive.com. And then today’s program is available at wallbuilderslive.com. And yes, of course, at that website, that’s where you can make a contribution. Help us get this information out. Let’s teach and inspire and equip as many citizens as possible to do their part to become biblical citizens in modern America, and help us save this constitutional republic. We sure appreciate you listening today. You’ve been listening to all WallBuilders Live.