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What Is The Proper Role Of The American Judiciary: Our Constitution is still alive and applicable today! As citizens, we all have a duty to study the Constitution, to understand where our rights and our freedoms are laid out in that document, and how our government structure should work. The reason our government continues to overstep its boundaries is that “€œwe the people”€ don”€™t know what those boundaries are! Tune in now for the last part of our three-part series! 

Air Date: 06/27/2019

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.

Faith And The Culture


Welcome to the intersection of faith and the culture. This is WallBuilders Live! with David Barton and Rick Green. Today we’re getting the conclusion of Section Seven out of Constitution Alive!, the judiciary, folks.

Man, we have got to study the original intent of Article 3 in the Constitution, the proper role of the judiciary. If we expect to turn this thing around and put that judiciary back into its proper jurisdictions and its proper authority, it’s going to take We the People getting educated about it. That’s what we’re all about here WallBuilders: “€œRebuilding the walls that we may no longer be a reproach,”€ just like that Scripture out of Nehemiah.

For more information about WallBuilders, visit our websites: WallBuilders.com and also WallBuildersLive.com. In fact, if you missed yesterday and the day before, both of those programs are available right now at WallBuildersLive.com so that you can get this complete, three-part series, covering the judiciary out of Article 3 in the Constitution. So, check that out right now at WallBuildersLive.com.

Or, when you get home, if you’re listening in the car today, be sure and get those other two programs as well. But right now, we’re going to pick up right where we left off yesterday. This will be the conclusion of Section 7 out of Constitution Alive! covering the judiciary. Here’s Constitution Alive! with David Barton and Rick Green.

What Are Our Inalienable Rights?

Rick (at Independence Hall):

If a girl wants to get up and pray at a football game because the kids elected her; and, she can sing a song, read a poem, or say a prayer; it’s her choice. She ought to have the freedom to do it however she wants.

Just because one kid in the audience says, “€œWell, I don’t want to have to listen to a prayer,”€ that’s not having to participate in a prayer. You’re just having to understand that we don’t have life, liberty to never be offended in this country. These guys didn’t say that, right?

They said, “€œ…life, liberty, and the pursuit of happiness.”€ We’re gonna be offended by other people. I’m going to have to listen to somebody say a prayer I don’t like, or worship some god I don’t agree with, or participate in some activity I don’t agree with.

Man, that’s freedom. We ought to be strong enough in our own faith or our own belief system to not be so easily offended and run to the nearest government official tried to shut down somebody else’s activity. That’s minority forcing their views on the majority.

Last one, myth number four: only judges are capable of determining constitutionality, and their primary responsibility is judicial review. Is the court the final arbiter? Here’s what the Supreme Court says on their website.

Is the Supreme Court Right?

“€œAs the final arbiter of the law, the Court functions as guardian and interpreter of the Constitution.”€ Are they the final say? Are they the only ones that can determine constitutionality?

Do the other branches have any say in the constitutionality of a law? Encyclopedia Encarta says, “€œThe Supreme Court’s principal power is judicial review, the right of the court to declare laws unconstitutional.”€ Well, here’s Madison.

I mean, if there’s any expert that came out of this room on the Constitution, it”€™s Madison, the Father of the Constitution. He said, “€œThe argument is that the legislature itself has no right to expound the Constitution, that whenever its meaning is doubtful, you must leave it to take its course until the judiciary is called upon to declare its meaning.”€ It’s kind of like when President Bush signed the McCain-Feingold law and said, “€œI think it’s unconstitutional; but, we’re gonna have to wait for the Court to decide.

No, wait a minute. The president has constitutional arms and can say, “€œI’m going to veto the law because I think it’s unconstitutional.”€ You’ll have to wait on the Court.

Each branch has a voice. Madison was saying that’s silly to wait on the Court. He said, “€œI beg to know upon what principle it can be contended that any one department draws from the Constitution greater power than another in marking our Constitution out.”€

Each branch has Power to Determine Constitutionality.

Now, the Father the Constitution says, “€œEach branch has power to determine constitutionality. Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the legislative, as well as by the judicial authority.”€

And, here’s why. Elbridge Gerry, one of the guys who sat here and signed the Declaration of Independence–in fact, he’s the guy we talked about last night, the little guy, that got up and was told that he was going to swing in the air for an hour or more before he was finally dead by Colonel Harrison over there. Here’s what Elbridge Gerry said.

He said, “€œIt’s quite foreign from the nature of the judiciary’s office to make them judges of the policy of public measures. Let”€™s back up read that again. Think about what he just said.

“€œIt’s quite foreign from the nature of the judiciary’s office to make them judges of the policy of public measures.”€ He”€™s saying, “€œThe court has a proper role; but, it’s not to be the judges of the policy of public measures.”€ That’s why we have legislators.

A judge is not accountable directly to us. We want the legislators deciding what our policy will be on–you pick it: abortion, gun rights, campaign finance, health insurance. You name it.

Any of those public-policy issues, Elbridge Gerry is saying, “€œThat’s just kind of foreign to let a judge decide that because a judge is not answering to the people. A judge is not out there campaigning among the people to find out what the will of the people is. A legislator is.”€

The Legislators Ought to be Deciding

He is saying that the legislators ought to be deciding those issues. They ought to decide whether or not something is actually within the purview of the legislature and the Constitution. Jefferson said the same thing.

He said, “€œThe opinion which gives to the judges the right to decide what laws are constitutional and what not, would make the judiciary a despotic branch. The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”€ He”€™s saying, “€œIf you give them the final and only say on determining constitutionality, they’re going to be despots; we”€™re now gonna be ruled by an oligarchy,”€ He said at one point.

And, the reason is, you’ve got nine people now that have the final say on everything in the whole country. They’re unelected, and we’re not letting the 535 in Congress and the one at the other end of Pennsylvania Avenue be the ones to have a voice in that as well.

Hamilton said, “€œThe legislative department is more immediately the confidential guardian the people’s rights and liberties.”€ So, what you said earlier about how they have to answer more quickly to us, is exactly right. The legislative department is the right place to decide the policy of public measures, not the court.

And so, when you take the legislative department out of the picture and say, “€œNo, it’s what the court decides, that’s the final say,”€ and, “€œThese other voices and opinions mean nothing,”€ you end up with a real problem. You’re ruled by despotism.

John Roberts Was Right

John Roberts got this right in the health care decision. He said, “€œMembers of this court are vested with the authority to interpret the law. We possess neither the expertise nor the prerogative to make policy judgments.

“€œThose decisions are entrusted to our nation’s elected leaders who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”€ Now, I know that’s a hard pill to swallow.

I’m not a fan of the health care law. I personally think it’s unconstitutional. What he’s saying is, “€œYou guys knew when you elected Barack Obama and you elected a Congress that was for national health care, that’s what you were gonna get.”€

So, there was no question of what we were gonna get. He”€™s saying, “€œIt’s not the Court’s job to save you from yourselves. If that’s what you choose, that’s what We the People chose.”€

Moment From American History

This is David Barton with another moment from America’s history. Although education has remained an emphasis in America for nearly 200 years. What has changed the most over that period of time is the philosophy of education. For example, while religion finds no place of refuge in our schools today, such was not the case at the time of our Founding Fathers.

In fact, when the Delaware Indian chiefs brought their youth to be trained in America schools on June the 12th 1779, George Washington told them, “€œYou do well to wish to learn our arts and our way of life and above all the religion of Jesus Christ. These will make you a greater and happier people than you are. Congress will do everything they can to assist you in this wise intention.”€

According to George Washington, what students learned above all in American education at the time of the Founding Fathers was the religion of Jesus Christ. For more information on God’s hand in American history contact WallBuilders at 1-800-8-REBUILD.


If We the People want some different, we”€™ve got to choose something different. He’s saying, “€œIt’s up to you; it’s not up for the Court to save the day.”€ Now, obviously I think he shouldn’t have created a way to make it constitutional by calling it a “€œtax”€ instead of the Commerce Clause and all that.

We the People Decided

I don’t agree with what he did there; but, I do very much agree with what he’s saying right here that, “€œHey, we’re the ones; We the People make the decision on who we elect. I don’t think we were fooled. We knew exactly.”€

When I say “€œwe,”€ the nation, knew what it was going to get. We got it and didn’t like it. Now, you’ve got to turn it around if you don’t like it.

So, the Court is not the only one that can determine constitutionality; the other branches get a say in that as well. And, you might say, “€œWell, okay, Rick, who gets the final say? Or, what do you do if Congress passes a law, the President signs it, but the Court says, “€œIt’s unconstitutional.”€ How do you how do you respond to that?

Well, exactly like Hamilton said in the Federalist Papers. He said, “€œIf Congress passes a law and the Court overturns it on constitutional grounds, then the Congress can come right back and pass it. Maybe change it a little bit if they feel like something the Court said made sense; or, pass it just like it was before. And, if the president signs it again, two out of three win.

“€œIf the president says “€˜No; I actually agree. The Court got it right; I was wrong to sign that before and learned something from their opinion. I’m going to veto it and side with them,”€™ then two out of three win.”€

 The Partial-Birth Abortion Ban

So, it will work if everybody will use their constitutional arms. In fact, that’s happened before. The partial-birth abortion ban was initially ruled unconstitutional. They came back through, and Congress passed it again; now, it”€™s the law of the land.

That can happen. But, both–all three branches have to understand their proper roles. I’m picking on the courts here.

But, the court also has to push back whenever they’re being ramroded. So, the folks that aren’t using their constitutional powers right now, though, are the executive and the legislative. They need to be using those constitutional arms of self-defense and weigh in on constitutionality, not just assuming the court can be the only one.

Myth Busters

So, very quick review. Myth number one: We don’t have three equal branches of government. Which branch is dominant? The legislative is.

Which one is weakest?

Audience Members:

The judiciary.


All right. Myth number two: They are not appointed for life. What are they appointed for?

Audience Members:

Good Behavior.


Good Behavior.

I personally would like to see a constitutional amendment that defines that and says, “€œThey’re appointed for 10 years, 12 years, or whatever you want to make it;”€ so, there’s that clear day of accountability to have to be reappointed or else not on the bench anymore. But, at this time, it’s for good behavior. We just need to recognize what good behavior is.

Myth number three: The primary responsibility judiciary is to protect the minority from the majority. Nope. The Bill of Rights protects all of us, regardless of whether you’re in the minority or the majority.

Myth number four: The courts are not the only ones that can determine constitutionality. Each branch has the right to do that. The court is accountable.

The Court is Accountable

It’s accountable to us through the other branches, not directly to us, but to us through the other branches. Here’s Sam Adams, John Hancock, and John Adams: “€œAll power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are their substitutes and agents….”€

That means that those people in government are our substitutes and agents. “€œ…and our at all times accountable to them.”€ We’ve got to have accountability in all three branches.

James Wilson, the second-most-active member in this room in the Constitutional Convention, said, “€œHere the people are masters of government. Elsewhere the government is master of the people.”€ I want to maintain the people as the master of the government, not the other way around.

The only way we do that is Rhett started off telling us last night: Consent of the governed. We the People have to get up and give or refuse our consent. We’ve got to be engaged in this process, and that includes letting our voice be heard on how the judiciary should work.

And, the only way that’s going to change, folks–it”€™s not going to be an overnight change in one election. It’s going to take a generational change where We the People study the Constitution, understand, and know what the proper functions of each branch are. Then, we hold those representatives accountable by saying to our members of Congress, “€œDo your job.”€

Those aren’t just rights that Congress has, but duties that Congress has. Congress is supposed to reign in the courts. And, if they don’t do it, the court is going to stay out of control.

So, we’ve got to get some good people elected. And, there are a lot of people there that want to do this, we just don’t have enough members. What we need are some more members of Congress that have enough backbone to make a freight train take a dirt road.

Do you know what I’m saying? That’s the kind of backbone we need. We need some good, bold leaders in Washington D.C. to lead on this issue.

So, there we are on the courts. When we come back in our next section, we’ll talk about the Bill of Rights. We”€™ll go through all 10 of those and talk about those specific guarantees.

Stay with us. We’ll be back with more Constitution Alive!

We Want To Hear Your Vet Story


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One of the very special things we get to do is interview World War II veterans. You’ve heard those interviews here on WallBuilders Live, from folks that were in the Band of Brothers, to folks like Edgar Harrell that survived the Indianapolis to so many other great stories you heard on WallBuilders Live.

You have friends and family that also served.  If you have World War II veterans in your family that you would like to have their story shared here on WallBuilders Live, please e-mail us at Radio@WallBuilders.com.  Give us a brief summary of the story and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live!

The just powers of government can only come from the consent of the governed; that”€™s you and me.


That’s a lot of myths of the judiciary. I think most law students come out of law school believing all those things. Most Americans believe those four myths.

Poor Government Education in Public Schools




So, hopefully we’re busting those myths and getting to the truth, so we get back to–


Well, we talked earlier about how that our public education, our government education, not public education, but our government education is so poor that we don’t have a clue what that is. I mean, that is one of the difficulties we have, is we don’t know the Constitution. We especially don’t know the role of the judiciary, but have been told otherwise.

Impeaching Judges

But, I want to go back to something you said about the second myth when you were talking about federal judges having a lifetime appointment.


Yes, one of the simplest ones, plainest ones, right there in the Constitution.


Clearly they do not.




How do you get them off there? Bad behavior. You listed some examples, and that deals with impeachment.

People think impeachment is an extremely high bar to reach, an extremely hard thing to do


Congressmen are even afraid to draft {letters} of impeachment because they’ll be labeled some radical because it’s so unusual now.


Just–if we go back to that big battle plan view, that 30,000-foot view, there is no topic in the Constitution covered as often as impeachment is.




Five separate clauses.


So, if you look at the big picture, this is an item we don’t do anything on, and this is covered {more than anything.}

Noah Webster


We treat that like it’s radioactive, like it’s going to blow up on us if we touch it. And, it was so important that they put it in there five times. Now, the other thing that”€™s happened is, it’s in there five times; but, what has happened is our law professors and judges have raised the bar so high that we don’t even try to go after them anymore.

And, it’s because of that “€œhigh crimes and misdemeanors.”€ Now, we’ve talked in previous sessions how important it is to use the language at the time it was written, not the way it is now.


So, if I’m in that room–


If you’re in that room–


I’m in that room with those guys and we’re debating this, what does “€œhigh crimes and misdemeanors”€ mean to me back then?


We talked in a previous session about Noah Webster and the impact he had on the Constitution, and especially what his dictionary did in defining words. So, here’s a guy who is there at the time. He’s a Founding Father meeting with all these guys. They take his language, put in the Constitution.

If he tells us how the words are defined, then we’re going to know how they”€™re defied.


I would say that’s a pretty good source.



So, this “€œhigh crimes and misdemeanors”€–I mean, you’re an attorney. “€œHigh crimes and misdemeanors”€ the way I’ve always been taught, “€œhigh crime”€ is a felony, and a “€œmisdemeanor”€ is a lower crime that’s not a felony. So, you got Class A misdemeanor,  Class B, Class C; you”€™ve got all these misdemeanors. It”€™s a crime.


Let’s think of a speeding ticket. Wouldn”€™t that be a misdemeanor?


It could be a misdemeanor. But, even that, a moving violation,  not necessarily a misdemeanor. A misdemeanor is: you’re not going to get jail time out of this, but it’s a crime.




So, we think of misdemeanors as crimes that just aren’t necessarily jail-time crimes. Having said that, I want to just read to you Noah Webster’s definition of “€œmisdemeanor”€ here.




And, first off, remember, thinking in terms of crimes; we think of it as a crime. Here’s the first thing he says: “€œ”€˜Misdemeanor”€™ means “€˜ill behavior.”€™”€ Wait a minute.


So, that’s not necessarily a crime.


Being rude is not a crime. And, we talked about how the Founding Fathers, if you looked at why they impeached folks: profanity, drunkenness, and private life. Well, that’s bad behavior; but, that’s not a crime.

Ill Behavior, Evil Conduct


That”€™s not not criminal.


So, he says: “€œIt is ill behavior.”€ He says: “€œEvil conduct;”€ wait a minute. You can’t use the word “€œevil;”€ that’s implying there’s rights and wrongs.

He says it’s “€œill behavior, evil conduct,fault”€¦.”€ Fault? That’s not a crime.

And, then he says: “€œ…mismanagement.”€ Mismanagement—just because you’re incompetent doesn’t mean that’s a crime. Notice, none of the words he used has anything to do with crimes.

He continues and says: “€œ…in law: an offense of a less atrocious nature than a crime.”€ So, it’s not a crime; it’s something below a crime. He says: “€œ…it applies to all offenses inferior to felony and also to all offenses for which law has not provided a particular remedy.”€

So, it’s not even in the law books. “€œMisdemeanor”€ is not something that’s even in the law books because it’s something the law didn’t provide a remedy for. Therefore, it’s not even a law books.

He says: “€œCrimes and misdemeanors,”€ like “€œhigh crimes and misdemeanors”€? He says: “€œ”€˜Crimes”€™ and “€˜misdemeanors”€™ are mere synonymous terms. But, in common uses, the word “€˜crimes”€™ is made to note offenses of a deeper and more atrocious dye, while small faults and omissions of less consequence are comprised under the gentler name of “€˜misdemeanors.”€™”€

So, it’s not even a fault of the law and not violating any law but a “€œgentler offense.”€ They made it really easy to impeach somebody.


So, why not do it then? Why do we shy away from it so much?


Well, I can answer that for you. And, the answer is, Congress does not lead the nation, the nation leads Congress

Constitution Alive!

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.


I tell people all the time after an election when they don’t like what turned out; I say, “€œLook. Don’t ever think that Congress reflects the values of the people; it does not. It reflects the values of those who voted in the last election.”€And, again, right now in America, only one out of eight adults elect their congressmen.

So, seven out of eight adults are out there complaining. That’s why Congress has a low approval rating because we don’t like–well, show up and vote. Get somebody in office.





So, what’s happened is, when the people make clear to Congress through the way they elect their people what they want done, Congress gets it done. I worked with a number of members of Congress on the House Judiciary Committee and was very close with the speaker and the majority leader. And, there was so much going on with judges overstepping their bounds.

We had a federal judge here in Texas. I’ve got his decision where he said, “€œI’m going to have a federal marshal listen to prayers. And, if I hear a kid say the word “€˜Jesus”€™ in his prayer, they’re going to get six months in the Galveston County Jail.”€

I’ve got–whoa, whoa; wait a minute. You’re going to listen to my prayers?

And, if I pray the wrong word I’m getting six months in jail?

And, you’re the one–


That’s mismanagement and a bunch of other things that you mentioned there. He should”€™ve been impeached.


Well, so we started looking at guys and said, “€œYou know what? We’re going to start impeaching justices.”€ Jefferson on three occasions called impeachment a scarecrow. It’s like if you stick out in the middle of cornfields, it”€™ll scare all the crows away.

If you can do one–and, we found that there have been 97 impeachment hearings across history. And, the more frequently you have an impeachment investigation, the less frequently you have to impeach judges.


Because you’re scaring away the bad behavior, right?

Everyone Must Be Accountable for Their Conduct


You”€™re scaring away that bad behavior. I mean, you used that quote from James Iredell that everybody”€™s got to be accountable for their conduct, and the very terror of punishment might get them. So, you have to raise a standard every once in a while and say, “€œAll right, we’re going after this guy.”€

So, we had it all lined up to go after several judges that were just wacky–I mean, across the board. We had federal judges imposing tax increases. Constitution, Article 1, Section 8, the Origination Clause, that has to come to the House. It cannot come to the judiciary.

“€œWell, I want a tax increase.”€ You can’t do that but need to be off the court. You took an oath to uphold the Constitution; that violates it expressly.


Maybe we need to get rid of some Supreme Court justices for creating a tax with Obamacare. But, that’s a whole other issue.


That’s another issue. But, that’s what’s happened.


But, they wouldn’t do it. Why would they not bring the article of impeachment?


What happened was, as we started moving forward, we got huge pushback from conservative constitutional people saying, “€œWhoa, that’s not an impeachable offense. It has to be a high crime or misdemeanor, a really big felony, like this huge felony that gets you 10 years in jail. And, if they do that, then–

“€œAnd, while that was a really poor decision to say that we’re going to throw you in jail if you pray and use the word Jesus, that’s not a felony.”€

Know, Read, Study, Teach… 


So, because they didn’t know the definition–


Those were the guys who ought to be supporting it. So, what we found out when we tried to move forward was, the education was so bad on this issue, even among people who should be supporters, that you couldn’t find the support. And, there’s no way Congress can get it done if the people are going to beat their brains out every time they raise the bar.




So, we literally raised the flag of impeachment to say, “€œIt’s time to get the court under control;”€ and, the people beat it back down, saying, “€œNo, we believe the fiction of the law.”€


So, we’re right back to the beginning then. It’s exactly our–


Know, read–


We’ve got to know, read, study, teach, all the things that go with it.


But, that sounds like we need to not only teach the rising generation, not only our generation, we’ve got to teach Congress. The members of Congress must know these things.

Congress Does Not have Superior Knowledge


Congress is nothing more than us that got elected to office. They might speak a little better than some of us, articulate a vision better, and even be more photogenic on TV. They went to the same schools we did, got the same knowledge.

And, never, ever, ever think that a congressman or senator has superior knowledge to what you have. That’s not it at all. That’s not the case.

So, when you look at Congress, don’t look at as we and them. Look at me and that’s a representative of me, because that’s what it is. And so, yeah, you’re right.

Congress needs to know this stuff, just like every citizen needs to know it, and like every school needs to teach it.


Well, it all comes back to us learning it ourselves.


It does.


That”€™s why we’re studying here in Constitution Alive! So, we’re learning a lot about the presidency, the legislature and our Congress, the judiciary. When we come back, we’re gonna dive in specifically to the First Amendment and our freedom of religion.

Then, later we’ll get to the rest of the Bill of Rights. So, stay with us on Constitution Alive! with David Barton and Rick Green.

Rick (in studio):

Well, friends, that was the conclusion of Constitution Alive! Section Seven, dealing with the judiciary. That’s Article 3 in the Constitution. I encourage you to check out the entire program Constitution Alive! with David Barton and Rick Green; it’s available at WallBuilders.com.

Learn the Proper Role of the Judiciary and More from Constitution Alive!

You can also go into the archives section on our website at WallBuildersLive.com. And, and check out past programs; we’ve aired several of the sections from Constitution Alive! here on the radio program. So, you can get those for free by combing through those archives there on the website at WallBuildersLive.com.

Or, if you’d like to get the full DVD set, the workbook, and maybe even some extra workbooks to invite your friends and family over as you walk to the Constitution and help get them educated as well, all of that information is right there at WallBuilders.com.

Friends, I’m so appreciative of you listening to this program today, learning about the duty of citizens and our role in reining in the judiciary and getting our federal government back into its proper place. It’s going to take We the People doing our duty as citizens if we’re going to save the republic. And, we appreciate you listening today and learning how to do your part.

You’ve been listening to Constitutional Alive! Section 7 here on WallBuilders Live!