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 “we the people” don’t know what those boundaries are! Tune in now for the first part of our three-part series!
Air Date: 06/25/2018
On-air Personalities: David Barton, Rick Green, and Tim Barton
- WallBuilders | American historical events, founding fathers, historical documents, books, videos, CDs, tapes, David Barton’s speaking schedule.
- Coupons: Use promo code WBL17 to receive 10% off your entire order on ALL WallBuilders Store Products!!
- Helpful links:
- Send In Your Questions!
- The Founders Bible
- The Founders Bible App
- Constitution Alive
- First Liberty
- The Courageous Leaders Collection
- Heroes of History
- Quotations of the Founders Books
- Alliance Defending Freedom
- Liberty Counsel
- Patriot Academy
- High Point Leadership Camp
- WallBuilders’ YouTube
- Wallbuilders Summer Leadership Training Program
- Share a veteran’s story
Download: Click Here
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! Where we’re talking about today’s hottest topics on policy, faith, and the culture, always doing that from a Biblical, historical, and Constitutional perspective.
We’re here with David Barton, America’s premier historian and the founder of WallBuilders. Also, Tim Barton, national speaker and President of WallBuilders, and my name is Rick Green, I’m a former Texas state legislator, national speaker, and author.
Quick Start Guide to the Constitution
We’ve got a special couple of programs for you here, actually three programs in a row, where we’re going to bring you Constitution Alive! here on the radio programs. This is our Constitution program, our Quick Start Guide to the Constitution, where we walk you through every article, every amendment, and we give you the original intent of what those phrases meant to the Founding Fathers when they were placed in the Constitution, and how our
system was supposed to work.
It’s the Quick Start Guide because it’s just like when you get some new gadget home and you get this big huge user’s manual, but you don’t have time to go through all that; yet, when you have that nice, full-color, glossy, fold-out quick start guide, with the pictures that just show you how to plug everything in to get it working, you’re able to get that gadget working. Well, same thing with the Constitution.
We the People need a quick start guide to today that will get us directly to getting it plugged in
and getting it working correctly again.
We have a court that overturns the states, overturns the nation, overturns the will of the people. So, it is time for us to get this Constitution back into its proper place. And, that’s what we’re going to talk about today here on WallBuilders Live!
So, what we’re gonna do is take you out to the WallBuilders library with David Barton. And, this is actually Chapter 7, or Section 7, of the Constitution Alive! program, which is specifically about Article 3 in the Constitution that concerns the judiciary. We’re going to be talking about the judiciary, putting it back into its proper place, understanding what the Founders intended for our entire court system.
Article 3, The Judiciary
Then also, we’ll be talking about solutions for how to put it back into its proper place. No question, it’s out of control. But, we’re not just gonna complain; we’re gonna look at how to put it back into its proper place.
So, let’s go out to the WallBuilders’ library. We’re going to pick up with Constitution alive! Section 7 right here on WallBuilders Live!
RICK: (Constitution Alive! with David Barton Rick Green)
Welcome back to Constitution Alive! with David Barton Rick Green. This is Chapter 7. We’re diving into the judiciary.
David, I can honestly say that, on one hand, I got to go to one of the best law schools in America and enjoyed it, but I learned far more from you and from diving into the original text than I ever learned in law school, because they don’t go back to these originals like you do.
Well, one of the problems we’ve got is if you believe in evolution as a form of philosophy of life, you believe in that in everything. And so, that’s what you see in education: “Yeah, this stuff really, really works good; but, we need to do something different.”
Therefore, we had that whole thing of Get rid of phonics. It’s worked great for 350 years; but, let’s go to whole language.
“Well, phonics is working great.”
“Yeah, but it’s so boring. Let’s do something new.”
Then, it turns out we have a generation now of illiterate kids. So now, even the state who started all that has abandoned it, saying, “This is really bad; let’s get back.”
We did the same thing in history: “You know, we don’t care about our history, but care about our culture. History is the old stuff; we’ve evolved past that.”
Just Putting Lipstick on a Pig
So, that’s why right now, in every major university in America consider the elites–U.S. News [and World] Report lists those elites–not a single one requires a course in American history for graduation, not a single one.
So, here you are going to get that–supposed to be really good education that helps make good citizens; yet, you’re not even looking back to see who we are.
We don’t care who–we’ve evolved past that. And, that’s what you get in the Constitution.
Math too, right? We went to New Math. We don’t like the old way of doing things.
We went to New Math; it hasn’t worked. You know, we’re going to Common Core because that’s going to fix everything. No, we’re putting lipstick on a pig is what amounts to.
But, that comes out of the philosophy that says, “Old stuff is no good, never ever. Old stuff is done; you’ve got to go to new stuff.” And, it doesn’t work.
If an old way works and you get the right results, stick with is.
So, why are judges so afraid to go back to the original and–
Well, it’s what you were saying about law school, because they don’t teach you what it used to be or the principles that work. They teach you what the decisions right now are.
Hiding the True Place of Judges
So, everything you learn is [inaudible]. We’re gonna study case law. And, this is; you get the notion from this that judges are the ones responsible for all law.
So, if you want to handle law, you gotta handle what judges say, because they will strike down laws they don’t want and help uphold laws they do.
And, that’s certainly the attitude they teach.
That is the attitude they teach.
To revere judges; they judge are the high priests of the law. What they say is gold.
That’s right. And so, that is in there. And, if you were to actually go back to history or to the Constitution, you would have to alter that view.
You’ll find that of the 27 grievances in the Declaration while we separated from Great Britain, judges were four of them.
We got tired of British judicial activism and didn’t think judges should make policy. So, let’s start our own country where judges make can’t make policy. And, by the way, while we’re at it, this thing, not only of judges making policy, but Sam Adams other guys said, “We’re tired of these lifetime appointments of judges, because when they have lifetime appointments, they’re not accountable.
“So, when we do our judiciary in America, we’re going to make sure that there’s no lifetime appointments and that these guys are accountable.” And, yet how come–
Lack of Judicial Accountability
So, if they actually went back and studied it, they’d go, “Oh that kind of messes up the system we’ve got now. I want to be one of those lifetime appointed judges.”
There’s law professors thinking That’s me down the road, so they don’t want to teach what the Founders actually complained about. That’s exactly right.
That’s exactly right. They’re not teaching truth as it existed but rather as they want it to be.
See, this is what happens. It leaves them in charge of what happens with the Constitution. They become the small end of the funnel: Everything goes through me.
Well, who with power wouldn’t like that?
As Ben Franklin said, “Who could be a Pharaoh and give power away?” I mean, if you’re a Pharaoh, and everybody comes to you for everything, would you give your power away? No way.
And so, that’s what’s happened with law schools.
The Evolving Law
You mentioned evolution, though. So, that’s the evolving law.
Well, this is what they call the “living Constitution.” And, we’ll get to this later; but, the Constitution is a living document. But, it’s living through the people.
Article 5 of the Constitution says, “If it needs to be evolved, the people get to do it.” Now, under law schools, they say, “If it needs to be evolved, we the judges will do it. We’ll take care of telling you where you need to go and–”
And, I had a debate one time with a professor at the University of Iowa. I went back on the “separation of Church and State” and showed how under the Founders beliefs, under their–they weren’t secular and didn’t want a secular society. So, I went through all the stuff and made my presentation.
Then, he gets into his. He said, “I’ll concede. The Founding Fathers weren’t secular and didn’t want a secular society.” He said, “But, my position is that we shouldn’t care what they wanted.”
We should not be bound by what guys 200 years ago–we should be bound by what we today want.
Moment from American History
This is David Barton with another moment from America’s history. As Christians become more active in politics they must remember to elevate principles above party loyalty. Perhaps, the best illustration of this comes from the life of Founding Father Benjamin Rush, a signer of the Declaration of Independence, and who served in the presidential administrations of John Adams, Thomas Jefferson, and James Madison. Each of whom was from a different political party.
When Benjamin Rush was asked about his personal party affiliation he responded, “I’ve been called an aristocrat and a Democrat, I am neither, I am a Christ-ocrat. I believe all power will fail at producing order and happiness in the hands of man. He alone who created and redeem man is qualified to govern him.” Like Benjamin Rush, we too must remain Christ-ocrats, regardless of our personal party affiliation. For more information on God’s hand in American history contact WallBuilders at 1 800 8 REBUILD.
And so, I acted really shocked. I said, “No way! Are you telling me you think we should not do what the Founders wanted but should do what the people today want?”
He said, “That is exactly what I’m telling you.” I’m so great.
I said, “I’m so glad to hear that, because 86 percent of the nation thinks that all public meetings should begin with prayer.”
You turned it on him, didn’t you?
The Fiction of the Law
I did and said, “[Did you know] 82 percent of the nation wants to have spoken prayer in public schools? Seventy-six percent of the nation want the Ten Commandments posted on–” And, he said, “Whoa, whoa, wait a minute.
“Don’t forget separation of Church and State.”
I said, “Wait a minute. You just said that the people should be in charge. Now, you’ve gone back to a 200-year-old thing.”
And, see, that’s what they do. They want to be in charge and believe in a living Constitution, but not done by the people.
They want to pick and choose then.
And, I’m going to impose my values on you because my values usually lose at the ballot box because people do like religion. I don’t; so, I’m going to impose them on you. And, I’m going to tell you that the Supreme Court is the arbiter of all the law of the land.
That literally is what happens. It becomes what we call the “fiction of the law.” If you believe the law says a certain thing, you will behave accordingly because you don’t wanna break the law. We’re not law breakers.
Even if it’s a false–
Even if it’s false. And so, what we do is self-limit and self-censor as a result. I’ll give you just a real easy example.
Setting Up the IRS to Lose
Churches are told, “You can’t say anything political in the pulpit if you’re a 501c3.” I’ve got news for you: churches are not 501c3 organizations. Now, those that want to be like churches are 501c3.
A church is tax exempt by its very nature.
They don’t even have to go through that whole application.
And, by the way, even if you are a 501c3 as a church, did you lose your right of free speech for being a 501c3? Did you lose your right of association or your constitutional right of freedom of religion?
They just think they did.
They think that. So, what happens is, 370,000 churches across America refuse to say anything that an IRS official might construe to be–and, what’s happened the last several years–I’m part of a group that we legally have challenged that and gone after that.
I’ve been involved in a lot of court cases where we have solicited and singled out thousands of pastors who deliberately cross that IRS line. We turn those sermons in to the IRS, saying, “They crossed it. You got to come after him;” because we know if we get the IRS in court, we’ll beat them on constitutional grounds, hands down.
We’ll beat them on history, on logic, and on Constitution. And, the IRS refuses to take the bait. They would rather have 370,000 pastors think the fictional law is you can’t say anything, than get in court and have 370,000 pastors find out you do have a right to free speech.
Proving them Wrong
Because, you’ll prove they were wrong.
That’s right. And so, that’s the way we are with the courts. We have this fiction law that says that judges have lifetime appointments; so, there’s just nothing you can do about it. And, that judges are the ones who get to decide what’s constitutional or not; and, there’s nothing you can do.
We’re told this, and if we believed this, we become neutralized and paralyzed because How can I get rid of a federal judge who’s got a lifetime appointment? I’m not a lawless person. I want to follow the law and respect the Constitution.
That’s not what the Constitution says. And so, what you said at the beginning this was very significant, in the fact that they don’t teach this in law school. You learn more about the Constitution by getting out of law school and actually reading old documents than you did with anything else.
The Weakest Branch
And see, that’s the fiction of the law, and that’s what’s happened, particularly with the third branch. So going to the third branch, one thing to remember is how the Founders did this. Article One, see how long it is; Article 2, now we are to Article 3.
This is the shortest of the ones. And, going back to what the Founding Fathers said in the Federalist Papers, they said, “The judiciary is beyond comparison the weakest of the three branches. And, the general liberty of the people can never be endangered from that source.”
It is so stinking weak that we don’t have to worry about them ever taking control.
If we keep it the way they intended to be.
They’ve taken control because we’ve said, “Well, I didn’t know I was supposed to give you control. I guess I’ll just–” see, that’s where knowing that those–John Jay–those six verbs: you read, study, teach, know it to perceive, then you defend and assert.
Now, we’re to the asserting point. You have to assert that the judiciary is not the supreme branch; it’s the least of the three branches and gets to make no policy. You’ve got to get back to the Constitution; then, you can assert that.
Yeah. So, we have to know. And, the only way to get there is to open it up and study it.
So, we’re going to really blow away some of those myths of the judiciary. And, get people back into the actual language of the Constitution and what these guys we’ve learned about here in this library said the way that the judiciary should work. And, that way, we will get it to work again.
We Want To Hear Your Vet Story
We’re going to head back to Philly and learn about Article 3 of the judiciary.
Hey friends! If you have been listening to WallBuilders Live for very long at all, how much we respect our veterans and how appreciative we are of the sacrifice they make to make our freedoms possible. One of the ways that we love to honor those veterans is to tell their stories here on WallBuilders Live. Once in awhile, we get an opportunity to interview veterans that have served on those front lines that have made incredible sacrifices have amazing stories that we want to share with the American people.
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 email us at [email protected] Give us a brief summary of the story and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live!
Let’s jump over the course because this is really where I think we have a lot of confusion in America today, about the proper role. What does Article 3 actually empower our courts to do? And, so much of our jurisprudence–we talked last night about how we don’t want judicial interpretation, but rather original intent.
We want it to deal with the genuine article so much that we recognize when somebody is getting off track. The judiciary has always been an issue. I mean, if you go back to the Declaration of Independence that these guys gave us, they gave us grievance after grievance.
Twenty-seven different grievances, many of those were judicial-tyranny grievances. They did not like judicial tyranny or judicial activism. In fact, Sam Adams was one of the guys that was speaking out against judicial activism way back in 1765.
I mean, he was already speaking out against unaccountable judges. He didn’t like the fact that the King was appointing the judges; therefore, the judges were beholden to the King, not to the people. He didn’t like the idea of lifetime appointments.
I mean, all of these things were objected to by Sam Adams 11 years before these guys gave us the Declaration of Independence. And, another decade or two before the Constitution, they had concerns about the judiciary. So, they tried to design the Constitution in a way to where it would not be a danger to the rights of the people.
And so, what I want to do very quickly is run through four myths of the judiciary, the kind of concepts that we have right now in America about the judiciary that would be foreign to these guys if they were alive today and could tell us what they think about the judiciary.
Widely Believed Myths Concerning the Judiciary
Myth number one: the three branches are coequal. How many of you have ever heard that we have three equal branches of government? That’s what I was taught in school: three equal branches of government.
No, that’s not true. The Supreme Court even has it on their website. They talk about the framers of the Constitution, the guys in this room, created three independent and coequal branches of government.
Did they? Well, how do we find out? We go to the instruction manual for the Constitution, the Federalist Papers, given to us by those three guys in the picture; Madison, Jay, and Hamilton.
Here we have this particular copy of the Federalist Papers; this is an 1818 copy. So, this is just a few years after. So, here’s an 1818 copy of The Federalist Papers.
And, in those Federalist Papers, those three guys went through every issue in the
Constitution you can think of. They addressed every issue, because what were they doing? They were trying to convince the people in New York, and ultimately the nation, to adopt the Constitution that they had been part of creating.
So, in those Federalist Papers, they make the arguments for how the system is going to work. And, they describe how the three branches will work together. I find it very interesting that James Madison actually tells us which of those three branches–so, we’ve got our legislative, our executive, and our judiciary.
He tells us which of those three should be the most powerful branch. It’s right there in Federalist 51; there’s no mincing words. He says, “The legislative authority necessarily predominates.”
Which Branch Should Dominate?
That’s not equal. If one branch is dominating, that’s not equal. Right?
Why did he say that the legislative authority necessarily predominates? Why do you want the legislative branch to be the most powerful?
Closest to the people.
Well, that’s exactly right. So, they have to answer to us more often, right? Every two years, they’ve got to come home and answer to us.
Now, the president does answer directly to us, but every four years. The judiciary doesn’t answer directly to us.
The judiciary answers to the other two branches, which we’ll see in a moment. But, he said, “That’s why they necessarily dominate;” exactly right. So, can you guess which of the three branches is supposed to be the weakest of the three?
Now about the judiciary. Here’s Alexander Hamilton in Federalist 78. And, this one’s gonna surprise you; so, listen to what he said in Federalist 78.
He said, “The judiciary is beyond comparison the weakest of the three departments of power. The general liberty of the people can never be endangered from that quarter.”[laughter]
Hmm. Did he get that one wrong?
If we take his words and bring them to today, he got it wrong. But, if we go back to his day and their perception of what the role of the court would be and how it would operate with the other two branches, he actually got it right.
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.
Moment From American History
This is Tim Barton from WallBuilders with another moment from American history. After the final victory at Yorktown the Continental Army awaited the outcome of peace negotiations with Great Britain.
Pastor Israel Evans, a chaplain in the army, proposed to George Washington that they build a structure where church services can be held during the months of waiting. Washington approved the plan and urges officers to ensure that the soldiers attend that service.
Pastor Evans further knew if we were to secure the liberties they had fought for, sound education would be crucial.
He declared, “Every parent and every friend to the freedom of his country ought to be attentive to the improvement of our youth and the principles of freedom and good government. And, then the people will stand fast in their liberty for a long time.” Our schools today need to return to teaching the principles of freedom and good government in order for America to survive and prosper. For more information about Pastor Israel Evans and other colonial Patriots go to WallBuilders.com
Had the court stayed in its proper place, it would continue to be the weakest branch and our liberty would not be endangered. Here’s how he explained it: “I mean, so long as the judiciary–”he even saw that coming, “I mean, so long as the judiciary remains truly distinct from both the legislative and the executive, liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
The Judiciary Must Stay Distinct
So, if the judiciary begins to act like the executive or the legislative, if the judiciary begins to make law instead of apply a law, if the judiciary is no longer in its proper role, then you bet it’s going to become dangerous. But, he’s saying, “…so long as it stays truly distinct and does only its role,” we’re gonna be fine.
Then, he went on to describe why it couldn’t harm us. He said, “The judiciary has no influence over either the sword or the purse.” Who’s got the sword?
Executive branch. Who’s got the purse?
The legislative branch. So, the judiciary doesn’t have the sword, doesn’t have the purse. He says, “No direction, either of the strength or the wealth of the society, and could take no active resolution whatsoever. It may truly be said to have neither force nor will.” That’s why Andrew Jackson could say, “That’s a nice opinion you got there, Supreme Court. Let me see you enforce it now.” That’s what George Bush should have said when the court was trying to tell him how to run the War on Terror or what to do with Guantanamo Bay.
He could’ve said, “Wait; wait. This is my job over here as the executive. I appreciate your opinion and will take it into consideration; but, you can’t tell me how to do those things. It’s part of my duty under the Constitution.”
See, used to, these guys pushed back and forth so that the process would continue to work. This guy you may not have heard of before, William Giles. He was one of our original congressmen who was in that very first Congress and helped to give us our Bill of Rights.
He served under four different presidents and was a very distinguished Founding Father, just not somebody we read much about today. But, he did a lot of commentary on the Constitution itself and on the judiciary. Check this out; this a long quote, so stay with me on this one.
“Superficial observers take it for granted that the three departments of the government are coordinated and independent of each other. It is to be observed that the words ‘coordinate’ and ‘independent’ are not to be found in any part of the Constitution. According to the Constitution, the establishment of the judiciary department was entrusted to the legislative department.
“Is the judiciary department formed by the Constitution? It is not. It is only declared that there shall be such a department, and it’s directed to be formed by the other two departments.”
Why? Because they owe a responsibility to the people. So, the Constitution, he’s saying, did not just set up this judiciary that no longer has any accountability to anybody.
What it did was it said, “We want a judiciary, and we want these two branches to design it, put it in place. Then, the judiciary is going to be accountable to those two branches because they owe a responsibility to us.”
“Chief Justice John Roberts Sitting at a Card Table With a Candle”
He goes on to say, “The number of judges, the affirmation of duties, the fixing of compensations, the fixing of the times of when and in what places where the courts shall exercise the functions, are left to the entire discretion of Congress.”
Now, get this next part. “Congress may postpone the sessions of the courts for eight or ten years and establish others to whom they could transfer all the powers of the existing courts.” This not me; this is one of the Founding Fathers.
He said, “The spirit as well as the words of the Constitution are completely satisfied provided one Supreme Court be established.” I love the way Steve King says it. He’s a congressman from Iowa.
He put it this way; he said, “Constitutionally, Congress can reduce the judiciary to nothing more than Chief Justice John Roberts sitting at a card table with a candle.” I like that picture right there. Don’t you?
I mean, what he’s saying is, “Congress has some authority here. Congress doesn’t have to just lay down and let the court do anything that they want.” Three separate branches, not equal, three separate branches that are the checks and balances on each other.
And, we haven’t been checking. We haven’t been creating a balance when it comes to the court. We’ve made them the end-all-be-all because we haven’t gone back and read the Constitution to see what their real power is.
And, the Congress itself has not been doing its job. They’re not fulfilling their duty in their role to be a check on the power of the court. So, what are some of those checks that they could actually do?
How Can Congress Check the Courts?
Well, first of all, they’re the ones that create all the inferior courts. Remember last night when we went through the enumerated powers of Congress, and one of those was to constitute tribunals inferior to the Supreme Court? That’s our appellate courts; that’s our district courts. The Congress creates those courts.
Rick in Studio:
Folks, we are out of time for today. You’ve been listening to Constitution Alive! with David Barton and Rick Green. It’s where we take you to the WallBuilders’ library and then to Philadelphia in Independence Hall, right there where it all happened, where the Constitution was actually framed.
More Like Section Seven: The Proper Role of the Judiciary
We’re sharing with you today, tomorrow, and the next day, Section Seven out of that entire Constitution Alive! Program. Now, the program takes you through every article and every amendment the Constitution, while getting back to the original intent. This particular section we’re sharing this week is on the courts; it’s Article 3, the judiciary.
It’s helping us to educate ourselves about what the original intent of the Constitution was so that we can respond to this overreach and take the steps necessary to restore the proper jurisdictions of each branch of the federal government and the federal government as a whole. We do that by going back to the original documents, back to the original principles. And, that’s what we do in Constitution Alive!
So, if for some reason, you came in during the middle of the program today and you missed the first part, it’s available right now at WallBuildersLive.com. And, over the next couple of days after those programs air with our local stations, it will be available on the website. Then, by this weekend, you can take all three programs.
You can grab them and send them to your friends and family. Share those links so that they can listen and learn about the original intent for the judiciary at the federal level and how to get it back into its proper jurisdiction.
We sure appreciate you listening today. I’m Rick Green. You’ve been listening to WallBuilders Live! with David Barton and Rick Green.