What Is The Proper Roll 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 second part of our three-part series! 

Air Date: 06/26/2019

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture


Welcome to the intersection of faith in the culture! This is WallBuilders Live with David Barton and Rick Green. Our websites, WallBuilders.com and WallBuildersLive.com.

You can get all kinds of former programs here a while but as live that have aired over the last couple of months, you can get Good News Friday programs, and Foundations of Freedom Thursday, where we dive into the principles of the founding of America, and then all kinds of great interviews with Senators, Congressmen, and attorneys that are fighting on the front lines, and activists that are making a difference, authors and movie stars, all kinds of cool interviews, they’re right there on WallBuildersLive.com by clicking on the archive section. 

Now, today we’re actually in the middle of a three day program, and if you missed yesterday, don’t worry. You’ll still love today, and then later you can go online and pick up yesterday’s program. 

But yesterday, today, and tomorrow we are listening to Constitution Alive, Section 7. Now, this section of Constitution Alive covers the judiciary, Article Three out of the Constitution. Constitution Alive, in its entirety, is about 12 hours of education on the Constitution. It’s a quick start guide, it’s it’s a fast paced program where we walk you through every article, every amendment, and we teach you the original intent. We take you into David Barton’s library and all those original documents, we take you out to Philadelphia, into Independence Hall where the Constitution was originally framed and where all that debate took place. 

In that very room we walk you through the Constitution. 

Congress Can Abolish Courts?

So there’s a wealth of information in the full blown program if you want to get the DVD in the workbook and all that. It’s available online at WallBuilders.com. 

But today you get to listen for free, and listen to Section 7 so that you can learn about the judiciary. This is so important right now. They have overreached their authority—the federal government has overreached its authority—and there is a proper constitutional way to put them back into their proper jurisdictions. So that’s what we’re learning about, the proper role of the judiciary and how to rein them in and put them back into their proper jurisdiction. 

So be sure to listen to yesterday’s program when you get a chance to get online and download it there in the archives section for now. We’re going to pick up right where we left off yesterday. This is Constitution Alive, Section 7. We’re covering Article 3 the judiciary out of our Constitution.

Here’s Constitution Alive. 

Look right there on Article 3, Section 1, Page 28, Article 3, Section 1, “€œThe judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”€

Congress can create a new court, and it can abolish an old court if it wants to, and we’ve done that before. 

The “€œHigh Priests of the Law”€?

So, when you hear guys talking about, “€œHey, you’ve got a judge that’s just off his rocker, you’ve got a judge that’s just abusing his power—“€ and we don’t have going to all the examples. Impeachment is not the only option. You could actually abolish that court. That guy is going to come to work the next day? There’s no job, there is no salary, there is no secretary. There’s nothing there. His court”€™s abolished and Congress can turn around and create a new court. 

Absolutely within their power. They’ve done it before. We ought to do it more often. The other thing they can do is they can set the agenda. They can actually take an issue away from the courts. 

This one blew my mind. Nobody told me this in law school. They cannot, because you got to think about how we teach in law schools now, it’s all about the judiciary being the high priest of the law. They don’t want we the people to be reading the Constitution and understanding how this. 

It’s a mindset of, “€œIf you’ve been through law school you know better than everybody else.”€Â 

It’s a terrible idea. We need to make sure that we the citizens—you realize the Federalist Papers, this was written for the average upstate New York farmer! Now, I’m gonna admit that’s some hard slog and right there.

I have a hard time getting to the fellow’s favorite this hard reading, but every time I complain about it, that’s what David Barton tells me. So it was written for the average upstate New York farmer to understand what you have in our time.

That was that was the deal. They wanted everybody to understand the Constitution today. 

Congress Can Regulate the Courts

I’m a lawyer, I’ve been through that mindset, and it’s not a good thing.

It used to be, “€œOh, you don’t worry, you don’t need a Bible. I’m going to tell you what the Bible says.”€Â 

Remember, that’s kind of how it was? We don’t want it in the hands of the people. The Constitution is something just like the Bible, ought to be in everybody’s hands. Let everybody study it for themselves. 

So anyway, back to this issue of the Congress being able to take an issue away from the courts, and they do this all the time. It’s usually a small issue you don’t hear much about, but they can do it with big issues too. 

Here it is at the bottom of page 28, “€œIn all of the cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law in fact, with such exceptions and under such regulations as the Congress shall make.”€

Now, what that means is that the Congress has the power to say, “€œHere’s an issue—“€ let’s take Under God in the Pledge of Allegiance, “€œWe can take that issue away from the courts and say you don’t even get to review this issue anymore.

Congress is saying it’s constitutional. You don’t even get to decide anymore. We’ve actually passed it in the House twice. Haven’t been able to get through the Senate, but we’ve passed to the house twice, and then the courts don’t even get to review it anymore.”€Â 

The Act of 1867

Here’s an example of the court—actually the Supreme Court—acknowledging that Congress has the right to do that, and that Congress had done that. An issue that came before the court dealing with writ of habeas corpus, they said, “€œWe can’t resolve this issue. The Congress has taken away our authority on this.”€Â 

The Supreme Court acknowledging that the Congress has the power to take an issue out from under their review. 

The provision of the act of 1867, this is an ex parte McCardle is the case, the provision—Chief Justice Chase writing the opinion— “€œThe provision of the Act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus, is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception,”€ meaning the Congress is saying, “€œThis is an exception. You cannot consider this case anymore.”€

“€œWe mean in the Supreme Court are not at liberty to inquire into the motives of the legislature. We can only examine its power under the Constitution.”€Â 

In other words, “€œAll we can do is make sure that Congress does have the power to take an issue away from us when we look at the Constitution. We can only examine its power under the Constitution and the power to make exceptions to the appellate jurisdiction of this court is given by express words, those words that we just read without jurisdiction the court cannot proceed at all in any cause. It”€™s quite clear, therefore, that this court cannot proceed to pronounce judgment in this case for it”€™s no longer the jurisdiction of the appeal, and judicial duty is not less fittingly performed by declining ungrounded jurisdiction than in exercising firmly that which the Constitution and the laws confer.”€ The court said, “€œYes, Congress can take away issues.”€Â 

Congress DOing it”€™s Job

Why do we not do it anymore? Because Congress is scared to death to pick that fight. There’s 1867. Congress is scared to pick the fight. Because you might remember a few years ago, whenever the whole Terri Schiavo thing happened?

You remember that and you had a lot of courts hearing that case state and federal courts and there was a congressman that stood up and said, “€œWe should impeach some judges over this. They’re outside the bounds of their authority.”€Â 

It was a firestorm, man. 

And the media went crazy, “€œOh, look, that’s Congress taking power away from the courts. That’s Congress trying to intimidate the independence of the judiciary.”€Â 

No. That’s Congress doing its job.

Moment From American History

This is David Barton with another moment from America’s history. Revisionists today often assert that our Founding Fathers were atheists, or agnostic, or deists. This charge is not new. In fact, Patrick Henry was even called a deist in his lifetime. 

Clearly, no one could question his patriotism. But, Henry was hurt that they would question his Christianity. Against the charges he was a deist, Patrick Henry thundered,
“€œDeism with me is but another name for bias and depravity. I hear it is said by the deists that I am one of their number. And, indeed, there are some good people think I am no Christian. This thought gives me much more pain than being called a traitor. Being a Christian is a character which I prize far above all this world has or can boast.”€Â 

Patrick Henry was quick to refute the charge of deism and to declare his open belief as a Christian. For more information on God’s hand in American history, contact WallBuilders at 1-800-8- REBUILD.

Not All Branches of Government are Equal


If Congress is wrong, then we the people will stand up and say, “€œNo, you shouldn’t have impeached that guy.”€Â 

The problem is if we the people don’t know that they have the power to do it, then Congress is never gonna get too far in front of the people because they know if they do that the media is going to attack them, and we’re not gonna be there to back them up. 

So we the people first have to understand what the proper power of the Congress has, then Congress will actually start exercising that duty. So that’s myth number one. Three equal branches of government. No, they are not coequal, which branch dominates? Congress dominates.

Which branch is the weakest? Judiciary. 

Which of course leaves the executive, right there in the middle. Alright.

So, myth number one, that we do not have three equal branches of government. Myth number two, federal judges hold lifetime appointments. Do they? How long they appointed for? Good behavior. So it is not a lifetime appointment, it’s for good behavior.

The judges, both the Supreme and inferior courts, shall hold their offices during good behavior. So we’re still on Article 3, Section 1 there. That’s the middle of that paragraph for Section 1.

So the question then is, “€œWhat is good behavior?”€Â 

Well, we can go to the Judiciary Act of 1802, to John Calvin’s the author. 

He said, “€œWe all fully in it once understand what is good behavior in a judge. And if he acts contrary, it would be misbehavior!”€

  1. Well, that didn’t help us much, did it? So he says there’s a remedy, and the remedy in that case given by the Constitution is impeachment.

How Impeachment Works

So what is bad behavior, or misbehavior, and what would be a proper misbehavior for which to impeach a federal judge for? 

I”€™ll just give you some examples. Got six different clauses establishing impeachment in the Constitution. In fact, let’s just look real quick. So we understand how impeachment actually works. Flipping back to Article 1, so we’re going back to Congress for a moment here, in Article 1, Section 3, on page 8. 

We find that the Senate is the one that will try all impeachments. So fourth paragraph from the top, on page 8. 

“€œThe Senate shall have the power to try all impeachments,”€ and then right below that the next paragraph says, “€œJudgment in cases of impeachment shall not extend further than removal from office and disqualifications to hold and enjoy any office of honor, trust, or profit in the US. But the party convicted shall, nevertheless, be liable and subject to indictment trial judgment and punishment according to loss.”€

That means if you’re convicted of impeachment, if you’re removed from office, and you’re barred from holding a future office, it doesn’t mean you’re off the hook at that point, you’re still gonna be liable with your local D.A. back home or wherever the crime actually occurred.

So it doesn”€™t mean impeachment the only thing that can happen to you, it”€™s just the only thing that Congress can do to you. 

If you go full back one more page there. The House of Representatives shall choose their Speaker and other and shall have the sole power of impeachment, so you say the House has the sole power of impeachment, and the Senate has the sole power to try all impeachments. Easiest way for me to understand this is like a grand jury and a regular jury. 

The House and Senate Roles in Impeachment

The House of Representatives is like the grand jury. If you think about it, if a prosecutor said that you had done something wrong, they’d take their best case before the grand jury and say, “€œWe think this person should be indicted and to go on trial.”€Â 

You don’t really get a chance to present yourself. It’s all the worst stuff about you if they say, “€œIf all of that’s true, then this person needs to go on trial.”€Â 

Then you go to trial with the regular jury, and the jury gets to hear all the good and all the bad, so they’re gonna hear the best case against, they’re gonna hear your defense, and they’re going to decide guilty or not guilty. 

So the grand jury is deciding whether or not you go to trial. The jury is deciding whether or not you’re guilty or innocent. 

Impeachment? The House is like the grand jury. They decide whether or not you should go to trial not whether or not you should be impeached.

That doesn’t mean you’re guilty. 

Then the Senate tries the impeachment, and they decide, like a regular jury, guilt or innocence. So that’s why you could be impeached, but they’re not convicted. Which is what’s happened several times, and President Clinton was one of those examples, so he was impeached, but he wasn’t convicted by the Senate.

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19 Full Impeachments in US History


So we’ve actually had several cases of impeachment throughout our history, 62 times there’s actually been an impeachment investigation, 19 times there’s been a conviction and an actual impeachment.

All 19 in judicial cases. 

So that guy right there was the one I guess about, it’s been about 15 years ago, his name is Alcee Hastings. He was impeached as a federal judge for taking bribes.

Then the good people of Florida said, “€œWell, that obviously qualifies him for Congress.”€ He got elected to Congress. I’m thinking, “€œMan, whatever our qualifications for Congress and say, “€œWell, wait a minute, I thought if he got impeached, you’re barred from running for office.”€Â 

So you go back to that language, he says. 

“€œDisqualified to hold and enjoy any office of honor, trust, or profit.”€Â 

So I guess being in Congress is not an office of honor. 

No, I shouldn’t be negative like that. We shouldn’t be disrespectful. 

Actually, what happened—and it’s been a while since the Senate convicted on impeachment and did both remove him from office and barred them from holding any future office. It’s their choice. 

They can do just one, or they can do both. In the case of Alcee Hastings, they didn’t do both, and so he was able to run and serve in Congress. 

  1. What are some examples of a breach of good behavior and impeachment? Here’s some of the causes for impeachment throughout our history. A lot of people think today high crimes and misdemeanors means you’ve got to commit a really bad crime, or really bad misdemeanor. 

What Qualifies as Misbehavior?

It actually means a misdemeanor or a crime at a high level, in other words one of your officials. And these guys, the founders believe you can be impeached even if it was just something that was immoral.

So it may not be illegal, but if it was immoral. So look at some of these examples. One judge issued an order contradicting an act of Congress? He’s impeached. Drunkenness and private life? Impeached. Rudeness in the courtroom, profanity, judicial high handedness, etc.. 

So these guys understood that the court is a branch of government that you’ve got to hold in high esteem. You’ve got you’ve got to be able to respect who’s on the bench, and therefore if they’re having any “€œmisbehavior”€, as they put it, then they should be impeached and you get them off the bench so that you don’t have that kind of example. In fact, Chief Justice Marshall was concerned about this idea of being impeached for overruling an act of Congress. 

He said, “€œThe president doctrine seems to be that a judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.”€Â 

Yeah, I think that might be a pretty good idea sometimes these days. 

Here’s what handle to put it, I think that’s a great word picture for us to recognize. Impeachment is a bridle in the hands of the legislature. 

Think about if you got a wild stallion. It’s out of control, you need that bridle to rein it in so that it can do its proper function. 

Same thing with the courts. 

“€œThe Very Terror of Punishment May Deter Him”€

The legislature can use impeachment to reign in the court. It’s the bridle, Hamilton said, to rein in the courts and keep them in their proper place. Each branch is furnished with constitutional arms for its own effectual powers of self-defense. 

Remember I said if one branch encroaches on the other, that branch has to has to push back? 

They all three, according to Hamilton, have their own constitutional arms for self-defense against the other branches. 

James Gerardo was a delegate to the Constitutional Convention. He was also one of our original Supreme Court Justices. 

He said, “€œEvery government requires impeachment. Every man ought to be accountable for his conduct. Impeachment will be not only the means of punishing misconduct, but it will prevent misconduct. A man in public office who knows that there’s no tribunal to punish him may be ready to deviate from his duty. But if he knows there’s a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.”€

In other words, if somebody is unaccountable, if you allow the judiciary to be unaccountable, there’s nobody that’s ever gonna hold him accountable what they’re doing? Of course they’re going to do things that they’re not supposed to do, because there’s nobody that’s going to hold them accountable to it.

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.

Why Accountability Matters


Even if they’re a bad person, if they know some guys go hold them accountable, they’re there they’re likely to not do the bad thing because they don’t want to be caught and punished for it.

So we need to be using these constitutional arms that Congress was given. 

Myth number two: Federal judges do not hold lifetime appointments, they are appointed for good behavior, and these guys gave Congress certain constitutional arms to use. They ought to use them more often. 

Yes sir?


How many members of Congress does it take to bring that up to the Senate?


“€œNo person shall be convicted without the concurrence of two thirds. So on the House you just need a simple majority.”€

So 218 would be enough. And then on the Senate side to convict, you’re going to have to have two thirds which would be 67. 

  1. We don’t we don’t have judges appointed for life. 

Two more myths. 

Myth number three: The primary responsibility of the judiciary is to protect the minority from the majority. 

In fact, the Supreme Court says, on their website, the purpose of the Bill of Rights is to protect the minority from the majority. 

I’m sorry, I kind of thought that Bill of Rights was for everybody? Then it applied to all of us. 

Sometimes I’m in the minority, sometimes I”€™m the majority, but I don’t think my rights under the Bill of Rights change. 

Myth: The Supreme Court Exists to Protect the Minority

I’m a country bumpkin, I come up here to the Northeast, I’m in the minority as a country boy. If my race or my religion puts me in the minority in a particular way, that doesn’t change my rights under the Bill of Rights, it doesn’t change the power of the government versus my individual rights, so it’s a bad idea to think that the Bill of Rights is only to protect the minority from the majority. 

But that’s often what we hear, and it’s often the reason for a lot of the Supreme Court decisions. The heckler’s veto, the idea of allowing the individual or a small group to force their opinion on the majority because we’re somehow protecting their rights? It’s a bad idea. It creates bad law. 

Washington and Jefferson, two totally different political parties, one’s a federalist, one’s an anti-federalist, but they totally agreed on this idea: the fundamental principle of our Constitution requires that the will of the majority shall prevail. 

If you get away from that, you’re gonna start getting bad law.

Lots of examples of anti majoritarianism. You take gay marriage. Seventy two percent are against it in America. Yet we keep having it forced on us by the courts. You take praying in school, eighty two percent of Americans say they want it. 

Yet the courts keep siding with the minority, teaching both evolution and intelligent design, sixty eight percent of Americans say to do that, yet the courts keep preventing us from being able to present both sides. 

Abortion. 70 percent of Americans want some sort of restrictions on abortions, always having all kinds of overturning by the court because they side with the minority over the majority. 

All People SHould be Equal Under the Law

Ten Commandments hanging in the schools? 76 percent of Americans say do it. Courts keep overruling it because they’re siding with the minority. 

Under God in the Pledge? 90 percent, and it was Robert Kennedy that said, “€œYou’re always going to have 20 percent against everything.”€

Well, in this case we’ve got 90 percent for it. And yet the courts still often say no to that ask the Ninth Circuit, of course, and out there on the left coast as fortunately Supreme Court said, “€œYou’ve got that one wrong,”€ and didn’t give them jurisdiction on that one. But anyway, it’s just a bad idea to think that the minority should have that, that the Bill of Rights is there to protect them, or that the judiciary is there to protect a minority over the majority, it means what we should do is protect everybody’s rights. Everybody should have equal protection under the law. 

That means if I have a different view than the rest of you, I shouldn’t be able to force my views on you. You can’t force your view on me, but that doesn’t mean that I can stop you from expressing your view. It means that you can’t make me be a part of that. You can’t make me believe like you are, or actually participate in what you’re doing. 

We’re out of time for today folks we’re gonna pick up where we left off today.

Tomorrow we’ll get the conclusion of this particular section out of Constitution Alive at Section 7, which covers the judiciary there in Article 3. 

Be Sure to Tune in Tomorrow for the Conclusion!

So be sure to tune in tomorrow. 

If, for some reason, you tuned in in the middle of the program today this is a review of the judiciary and how to put the judiciary back into its proper constitutional box. As citizens, we the people are beginning to understand what the original intent of the Constitution was, where we’ve gone wrong, and how to get back to that original intent and get our system working well once again. 

That’s what Constitutional Alive is all about. We call it the quick start guide to the Constitution. 

We’ve got a quick start guide here to walk through the entire Constitution and figure out how to get it plugged back in, and get it working correctly. So if you joined us in the middle of the program today and you missed yesterday, it’s available on our website right now. 

Today’s program and yesterday available on our website at WallBuildersLive.com. Click on the archives, you get yesterday’s program. Take both today and yesterday, share it with your friends and family, and then tomorrow get them to listen for the conclusion. The only way we’re gonna save the republic is if we the people get educated about these founding principles, that we learn the Constitution ourselves and then we hold our public servants accountable. 

We’ll get back to that original intent. We can turn our nation around and get it back on track, but it’s going to take you. It’s gonna take me. It”€™s going to take we the people getting involved, getting educated, and then helping to educate our friends and family. That’s why you gotta learn this and share it with the people in your life. We try to make that as easy as possible here at WallBuilders. 

Learn the Proper ROle of the Judiciary and More at WallBuilders Live!

Just by going on our website at WallBuilders.com there’s a ton of articles that you can read and share with your friends and family learning about the founding principles. 

So be sure to check it out right now today at WallBuildersLive.com, share this program with others tomorrow. We’ll pick up right where we left off today with Constitution Alive, Section 7, covering Article 3 of the Constitution, the Judiciary here on

WallBuilders Live.