Foundations Of Freedom – With Rick Esenberg: Four of the five rights in the First Amendment have been violated during this COVID crisis. How are people responding? What legal organizations are available to help? Tune in today to hear how one state is holding their elected officials accountable.

Air Date: 05/07/2018

Guest: Rick Esenberg

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

President Thomas Jefferson said, “I know no safe depository of the ultimate powers of the society but the people themselves. And if we think they’re not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Rick:

Welcome to the intersection of faith and the culture. It’s WallBuilders Live and we’re looking at things from a biblical, historical and constitutional perspective. That perspective is so needed right now in America and we appreciate you listening. My name is Rick Green, I’m a former Texas legislator and America’s Constitution coach. And I’m here with David Barton, America’s premier historian and our founder here at WallBuilders. We’re also with Tim Barton, national speaker and pastor and president of WallBuilders.

You can find out more about all three of us at our website, wallbuilderslive.com. That’s our radio site and there’s a lot of great tools available to you there. In fact, if you’re curious about the constitutionality of these crackdowns across the country, we’ve got a video series available right there at wallbuilderslive.com.

We also have archives of the program over the last few months. So, if you’ve missed some programs, so you need some good news, go grab those Good News Friday programs, where we just chock full of stories that are happening across the country. So, even in the midst of the bad, even in the midst of a lot of the tyrannical things that are happening in our country right now, there’re also good things happening and there’s a lot of good news stories, even from the previous few months that just didn’t get covered in the major media. And so, we cover those on Good News Fridays and that’s available at wallbuilderslive.com.

That is also the place to come alongside us and partner with WallBuilders, you can simply click on that contribute button. It’s very quick, you can do a one-time or monthly contribution. And believe me, we need your help. We’re a listener supported program, so it’s our listener supporting us to make it possible for us to bring truth to the airwaves and bring truth to the training that we do of pastors and legislators and young people and all the other things that we’re working on, it’s because of your contributions to the program. So, we greatly appreciate you doing that. If you would check that out today at wallbuilderslive.com, we sure would appreciate it.

Wisconsin Law and Liberty

Alright, David, Tim, later in the program, Rick Esenberg will be with us from the Wisconsin Law and Liberty Organization. They’re responding to some of these overreaches by government in their state, thankfully, a lot of legal organizations across the country doing the same thing. But they’re pouring in, I mean, the stories are hard to believe in many cases, in terms of, you know, literally trampling of constitutional rights.

David:

Yeah, we were keeping count of categories and there are four of the five rights in the First Amendment that we’ve seen violated. We’ve seen the Second Amendment violated with the Governor Jackson saying, hey, during this lockdown, you’re not allowed to have concealed carry guns anymore, even though State law and Federal rulings have said you can. So, we’ve seen all sorts of tax on that, we’ve seen a tax on what I look at in the Third Amendment, the sanctity of the home that government officials can’t come into your home.

I just saw an article this morning, where that we’ve got a case where that some parents with young children had to go to the bank and open an account. They can’t leave the young children. They took them with them into the bank and they’re accused of violating social distancing rules. They had too many with them in the bank. They were a homeschool family with five kids and they didn’t have the space. What do you do? You leave your minor kids at home when you have to go open a bank account? It’s crazy.

Rick:

Exactly. I had a friend kicked out of Costco for the same thing.

David:

Yeah, it’s crazy stuff. And so, it’s arbitrary guidelines, we’re seeing a lot of pushback as well. Talk to a group of legislators from one State looking at impeaching their governor over what’s going on. We’ve seen lawsuits being filed. I’ve been contacted by a number of legislators wanting to help get some lawsuits together. We’ve just seen a lot of action going, as we’re saying, way too much overreach. And then just a couple days ago, I saw a report from a big health organization saying, hey, Sweden didn’t have a lockdown at all and look at their COVID numbers, look how low they are.

And South Dakota didn’t have any kind of a lockdown, didn’t have any government takeover of rights and look how low their numbers are. So, we’re saying that the models that were used in many ways were wrong. They created a lot of fear, a lot of panic, but they didn’t create a right to suspend your constitutional rights or the right to suspend separation of powers and all these other constitutional provisions that are given us.

Crash Course in History and Government

Rick:

Well, let’s get some specific stories out of Wisconsin and how people are responding to this in the courts and why these legal organizations are so important. Stay with us, folks, we’ll be right back at WallBuilders Live.

BREAK

Hey, friends, it is not too late to join us for the crash course in history and government for all those folks that are schooling from home. Now, that could mean a lot of things. Schooling from home could mean that you’ve been homeschooling your kids from the beginning or it could mean you’ve been thrust into homeschooling as a result of the COVID crackdowns or it could mean you don’t even have kids at home, but you’re still schooling, because we all are still learning every day. Right?

So really, this program is available for anyone and it’s not too late to join us. Even though we started on May 4th, we’re doing every Monday, Wednesday and Friday afternoon throughout May and you can join at any time and when you join, you will be able to get the recordings of any of the afternoons that you missed. Remember, this is a live opportunity to learn about history and government to bring those things to life. And we’re going to have special guests every afternoon, people that have been in our “Chasing American Legends” program, people, I mean, Dr. Alveda King, David Barton, Tim Barton, Brad Stein, all kinds of great folks are going to be joining us. You need to be there as well.

Go to patriotacademy.com to sign up today. patriot academy.com, it’s not too late and you’ll get recordings of any live afternoons that you missed. Get the crash course in history and government at patriotacademy.com.

Power is Inherent in the People

Thomas Jefferson said, “The Constitution of most of our States and the United States assert that all power is inherent in the people that they may exercise it by themselves; that is their right and duty to be at all times armed that they are entitled to freedom of person; freedom of religion; freedom of property and freedom of press.”

Rick:

Welcome back. WallBuilders Live, thanks for staying with us. Today, we got a special guest from the Wisconsin Institute for Law and Liberty. Rick Esenberg, how are you, brother, thanks for coming on.

Esenberg:

Thanks for having me.

Rick:

Hey, man, love what I’m seeing you guys do up there and pushing back on these orders and getting the legislature involved and not having just a governor running roughshod. Man, it’s shocking what’s happening across the country. But people are asking, what can we do? We’re telling them support organizations like you, because you’re on the front lines. Tell us what you’re doing at the Institute for Law and Liberty to try to get people their freedom back?

Welcome Rick Esenberg

Esenberg:

Well, you know, there are a couple of things. There’s a very important case that’s going to be heard in Wisconsin next week. And this case doesn’t have to do with the extent to which constitutional rights may be violated by some of these lockdown orders, they certainly are, but this is a different kind of case. In this case, Wisconsin law provides that the governor can declare public health emergency, but it can only be for 60 days and it cannot be extended past that 60 days, unless there’s a joint resolution of the state legislature extending it and our public health emergency expires on May 11th. The legislature, I don’t think it’s going to extend it unless the governor negotiates with them and they reach some type of an agreement on what the next phase of this is going to look like.

And so, anticipating that, the governor is relying on a different statute and that statute says that the Department of Health Services in our State can take actions to control the spread of infectious disease. Now, we put out a statement shortly after he made this claim, pointing out that we thought that it was not an accurate reading of the law and then if it wasn’t accurate reading of the law, it would be unconstitutional and it would be unconstitutional because we have separation of powers, we remember we all learned it in civics class or on Schoolhouse Rock or whatever, you know, we got our education about our system of government and the legislature…

Rick:

Well, don’t be so sure, we don’t teach about civics anymore. But yeah, I get what you’re saying.

Esenberg:

This is true. So, the legislature makes the law and it can’t delegate that authority to somebody else. It can’t say, okay, Governor, you or your cabinet members can make the law instead, we’re going to give you that power. The legislature is not permitted to do that under the Federal Constitution and is not permitted to do that really under any State constitution that I know of.

And so, in this case, the governor is saying, well, because the law says that the Department of Health Services can take steps to control infectious disease, that means that the Secretary of that department can do anything can lock down the State indefinitely, can do everything that I could do under a public health emergency, even though that public health emergency is about to expire. And so, if that’s the case, then one single member of the government could have the ability to basically order everybody to stay home until he or she decided that it was no longer necessary or no longer desirable.

Not Even Elected

Rick:

And this single member of the government in your case is not even an elected official, if the governor’s handing this over. I guess, I don’t know, Wisconsin, is the Health Commissioner elected or is that an appointment position?

Esenberg:

No, no, this would be a member of the governor’s cabinet appointed by the governor. Now, in the case of this particular secretary of the Department of Health Services, she actually hasn’t even been confirmed by our State senate yet, she is an acting secretary. And I’m sure the governor is telling her what to do because, of course, he could fire her. But you’re right, not an elected official.

Rick:

You guys are zeroing in on the main question I was asking back in mid-March when this all first started and that is who has to do these things? And of course, you know, we’ve all learned feds have very little power compared to the States and the local government and whatnot. But what you’ve zeroed in on is even at the State level, that one person should not have the power to indefinitely shut down a State and that’s why we have a representative body.

Infringing on Constitutional Rights

And you’re trying to make sure that that representative body has a voice in these massive decisions that have long lasting impact and not only infringe on constitutional rights, but I mean, definitely affect the lives of everyone in your State, you know, for a long time to come. So, you’re trying to make sure that that separation of powers occurs and that the other branches have a say here. Am I understanding that right?

Esenberg:

That’s right. Because what will happen if and there was a lawsuit brought by the legislature and you know, we filed a brief supporting their position and what will happen if it’s successful is that the Department of Health Services will have to make a rule. And when a government agency makes a rule, they have to give notice to the public, there has to be an opportunity for comment and most importantly, there’s legislative oversight.

And so, our governor, like governors in other States have acted as if there’s no need to consult with the people’s elected representatives, that he or she can act alone. And the purpose of this lawsuit is to bring the governor to the table, so that whatever we do in the State of Wisconsin going forward, if there’s something that, you know, there’s been some type of bipartisan input into exactly what it should look like.

Rick:

Because from a practical perspective, I mean, let’s step back and say why do we want this to be the policy, right is because I mean, obviously, you got to empower someone in an emergency to act quickly and we all agree on that and I don’t think that’s the issue here and you’ve made that point. But at some point, when it carries on and on and on, leaving it to one person and not allowing these other elected officials to have a voice really is dangerous.

I mean, you get to where and then you’re, you know, only their advisors, only their scientist and only there are experts. And right now, we’re in a situation where the scientists and the experts disagree and we’re seeing differing views of how this should be handled and that’s why a representative body that could debate this is important. Is that a fair way to access this?

Decisions Based on a Horrible Model

Esenberg:

Yeah. One of the things that we found out as a result of this lawsuit, is that the governor was principally relying on a model that had been developed by Johns Hopkins. Now, that model forecast horrible, horrible numbers for the State of Wisconsin in terms of the number of people infected, the number of people dying, the number of people that would be hospitalized. And so, the stay-at-home order went into effect.

Now, the model also said, well, here’s what will happen if you do this stay-at-home order, right and people are still going to get sick. You’re going to have 2,100 people dead by May 1st, we have 300. You’re going to have 11,900 people hospitalized, we have 1,500. I mean, it turns out that the model was way too pessimistic and obviously needs to be adjusted.

And you make that kind of mistake, right, you get committed to your own course of conduct and you don’t alter it when nobody else is there to participate in the decision making. And so, I think it’s critical that the State legislator like in Wisconsin, and they really everywhere gets involved in assessing what’s going to happen as we move into the next phase of responding to this virus.

Rick:

You had a crystal ball there for my next question, because I was just thinking, why is it so hard for our leaders to pivot on this, right? I mean, we understand in the beginning, everybody was scared to death and a lot of people overreacted or they took action because they don’t want people to die.

Very Few Governors Are Pivoting

But the data is just pouring in and is so clear and is being confirmed and yet very few governors are pivoting. Is that why we need others in the room, because they just as politicians don’t want to admit, okay, I did the best I could, but that was wrong, now we’re going to change and go the right direction?

Esenberg:

No, right. I mean, politicians are not no, one, for confessing their mistakes, they’re not known for altering their course of conduct. And, you know, sometimes they can do it when, you know, they are in a position where they can sit down. I mean, of course, in Wisconsin, we have a governor who’s a Democrat and the legislature is controlled by Republicans. And so, a lot of times, you know, you can get past that if everybody can sit down together and say, okay, this is the plan that all of us have agreed to and this is what we’re going to do going forward.

I mean, there’s still a lot of fear and uncertainty about this, there’s two things. Nobody wants to take a risk, and nobody wants to acknowledge it. There are tradeoffs involved here. And the problem is you cannot be a responsible decision maker and not take a risk, because there’s no risk-free approach to this. You can stay in lockdown, but then you have to understand that you’re destroying a lot of people’s lives, right?

No Absence of Risk

They’re not going to have jobs. Their employers are going to go out of business. Family businesses are going to be destroyed. You’re going to have deaths of despair. You know, you have people that are afraid to go and get ordinary medical care, cancer screenings are getting postponed. And so, there’s no absence of risk on either side of the equation here. You got to be willing to take a risk and you have to understand that there are tradeoffs involved. And politicians, they’ll like to tell us that we can have our cake and eat it too. And unfortunately, I think in this case, we can’t.

Rick:

Not at all. Not at all. We’re really anxious to see what happens with your suit, will-law.org is the website. That’s will- law.org. And Rick, before I let you go, are you guys taking any of the individual situations, you know, where people are wanting to push back against some of their, I mean, I saw the video from your State of the lady that they came in harassed her because their kid went next door to play, I mean, just ridiculous stuff like that going on. If folks are looking in Wisconsin, can they come to you for things like that?

Esenberg:

Absolutely now, you know, not every case is appropriate and sometimes, you know, like in that situation, it was a very, very embarrassing and stupid thing, but nothing bad happened… But we’ve had cases like a young lady who was told by her doctors that she had contracted COVID-19. And she went on Instagram to tell her friends and don’t worry about me, I’m getting better, I got best COVID-19. Now, her test was negative, but sometimes the tests are negative, even though because you pass the testing window.

Now, she went on Instagram, exercise your right to free speech to tell her friends what had happened to her, Sherriff step, he came to her house and said, you know, look, we’re going to put you in jail unless you take that down. Pure violation of First Amendment and that’s the type of case that we have been taking and the type of situation that we have in getting into Wisconsin.

Will-Law.org

Rick:

I had not heard that story. Now, can we follow your cases on your website? Is that the best place to go?

Esenberg:

Absolutely.

Rick:

Okay, will-law.org last question. I mean, Rick, what do you say, I know you got friends and just people calling you and saying, okay, what is the point, when do I push back? Like what’s the proper civil disobedience or just to say, hey, I’m not going to do some of these things that are being asked of me that are ridiculous? A month ago, I was telling everybody, you know, just follow it and now it’s like, okay, it’s gone too far. And people are asking me that what do you say to people when they ask you that question?

Esenberg:

Well, you know, I think you have to be careful. I think you have to understand that there are still a lot of people who are very, very frightened. I mean, if you look at the opinion polling, majority of people want all these restrictions to stay in place, although I think that’s changing. And so, you know, for us, I think that if, in fact, something just becomes intolerable, something that simply can’t be continued and you feel you have a constitutional right, that the best way to push back is to push back in a way which is not seen as overreaching, because that you will have…

Rick:

Or violent right, we’re of course, staying peaceable you know, some of these people are getting really angry and it’s coming across really, really bad in the way that they’re doing it. So, you know, peaceable and done reasonably, yeah, go ahead. Sorry, I didn’t mean interrupt you.

Wise Protesting

Esenberg:

Yeah, and you have to understand that Judges are afraid too and Judges are risk adverse too, right? They don’t want to take the responsibility upon themselves of going too far and running the risk of causing some harm. And so, you know, we tell people look if you want to engage in a protest, you have a right to engage in a protest. But try to it to the extent that you can and you can’t always do it this way. But, you know, try to do it in a way in which, you know, it looks like you’re taking steps to keep it people from getting infected, just you know, do it that way. Because you will have the best chance of prevailing if you later wind up in court.

Rick:

Well, and a big part of it is public opinion. So, if you’re on video, you know, looking like you’re the aggressor, that’s not going to help the cause. But if you’re a video and you’re simply exercising your constitutional rights in a peaceable way, it looks it’s kind of the MLK versus Malcolm X model, right. Let’s be MLK here and be peaceable and not be violent and all those things and do it right. And I think you’re right too, you said, you know tolerate what you can and let’s have some public trust.

But when your constitutional rights are clearly being violated, I mean this Instagram thing you mentioned, you know, totally your free speech is being completely taken away, there’s a time to stand, but to stand in the right way. That’s why we’re thankful for folks like you all. I mean, that’s where people really do need help and I appreciate your wisdom in choosing the right cases and just fighting the good fight. Rick, man, I appreciate your time, we’d love to have you back again soon and thanks for all you’re doing.

Esenberg:

Anytime. Take care.

Rick”

Website, it’s Wisconsin Institute and by the way, Rick, did I say Wisconsin, right, I’m trying with a Texas accent here?

Esenberg:

You’re pretty close. You’re pretty close.

Rick:

Alright. Say for me the right way.

Esenberg:

I’m going to give you an A for effort.

Rick:

Okay. Alright, Wisconsin Institute for Law and Liberty and the website will-law.org. Rick, thanks for coming on with us.

Esenberg:

Right. Thank you.

Rick:

Stay with us, we’ll be right back with David and Tim Barton.

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 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 citizens 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.

Bind Them Down With the Constitution

Thomas Jefferson said, “In questions of power, then let no more be heard of confidence in man that bind him down for mischief by the chains of the Constitution.”

Rick:

We’re back here on WallBuilders Live. Thanks for staying with us. Thanks to Rick Esenberg for joining us from Wisconsin. David, Tim, you know, like you said, I mean, you got to be thoughtful about this, you got to be careful. And remember, last week, Jim Garlow telling us, you got to have the right attitude. But definitely it is getting to that point where people need to push back and need to let their elected officials know we’re not going to let our Constitution be trampled on.

Tim:

Yeah, it’s one of the things that is certainly vital for the safety of a Republic is that you have citizens that are active and engaged in the process. And one of the things that I think most people were willing to do early on was say, hey, if we need to stay home and help people be safe, I think the initial gut reaction of most Americans was we want to do what we think is the right thing.

But at some point, what you think is the right thing becomes questioned, when as was pointed out, all the models that were using as example have not matched up where you thought there’s going to be, right 2 million Americans dead is one of the models said, and obviously, we’re not anywhere close to that, we’re not even close to 100,000 yet, much less than 2 million that was estimated that we were going to die. And right, in this interview looking at Wisconsin, their predicted numbers, nowhere near anything they thought was going to happen. And so, at some point, you have to ask, wait a second, why are we still on lockdown six or eight weeks into this thing? We haven’t seen the issues we’re going to see, even if we were under lockdown, they thought the numbers would exceed this.

And so, at some point, as citizens, we have to begin to question, are we just allowing some tyrant to rule us in a violation of these constitutional God-given rights? And this is kind of that old adage, where the quote attributed to Franklin which he did write in a letter, it’s a little different context.

Back to the Basics

But he talked about if you give up your freedom for security, you’ve made this really false decision, thinking that security is better than freedom in some regard. And that’s what we have seen happen in America and people are getting frustrated and it’s not going to work very well, very long. Which is why even here in Wisconsin, as well as many other places, you’re seeing a lot of people push back, a lot of people that care about the Constitution, want to defend the Constitution saying, okay, we have to have some parameters on this because this is just going too far.

David:

I thought it was really good the way that Rick brought in even going back to basic civics, Schoolhouse Rock. Let’s say all the models had been right, let’s say there were going to be 2 million Americans who lost their lives in COVID, let’s say all that was right. That still doesn’t give the executive official all the authority, all the power. You have the separation of powers, policymaking has to come from the legislative branch and you don’t get to suspend the legislative policymaking branch that said you only have 45 days or 6 days emergency powers, then you have to come back to us. You can’t set that aside just because you say it’s a crisis.

And so, the fact that they’ve got a constitutional grants for this lawsuit, I thought was really good. And by the way, Rick, he said he gave you an A for effort on at least trying to pronounce Wisconsin the right way. If you had been in Seattle, Seattle just announced that they’re giving every single kid in school an A for all their courses, whether they’ve done any work in or not, they just want them feel good about having been out of school for several months, so they’re giving everybody. So, you don’t even get an A for effort, you just get an A because you exist. I mean, this is crazy stuff. At least you tried to do something, so maybe we give you A. But kids in Seattle, oh my gosh!

Rick:

Well, friends, we’re out of time for today, check out wallbuilderslive.com for more information and also, to get more programs. Catch some of those interviews you might have missed or some Good News Friday programs or Foundations of Freedom Thursday. Now is such a critical time for us to dive into those foundations. That’s why we also want to encourage you to take our Constitution Alive class where David Barton brings you into the library and shows you all kinds of materials and original doctrine from the founding era and then I take you into Independence Hall and teach you on the Constitution right there in the room where the Constitution was framed, really cool program, Constitution Alive, you can get it at wallbuilders.com today.

Foundations Of Freedom – With Rick Esenberg

You can also actually teach this class. You can become one of our Constitution coaches and you know, invite people online. You can do it online as things open up. You can begin to do in your living room or at churches again, like our other coaches do. That information is at constitutioncoach.com.

And the other reason I want to give you that website constitutioncoach.com is because we are going to come to people’s aid, we’re going to get you connected with law firms, just like this Law and Liberty organization in Wisconsin, also Liberty Council and First liberty and Pacific Justice Institute and Rutherford, all the groups that we work with and we have them on the radio program often. If you are dealing with a constitutional crisis issue, you need to go to constitutioncoach.com today so that we can get you connected to one of these law firms. It is so important for us to stand up to speak truth, to do it with the right attitude. It’s so important what Jim Garlow said on the program last week, we’ve got to make sure we check our hearts so we do this right, we do it appropriately, that we do it peaceably, but that we do, in fact, stand up for our constitutional rights and we make sure we preserve liberty for the next generation. Be a part of that. Go to constitutioncoach.com today.

And also, be sure to go to wallbuilderslive.com today, make that one-time or monthly contribution. We appreciate you coming alongside us and we appreciate you listening. You’ve been listening to WallBuilders Live.

Samuel Adams said, “The liberties of our country and the freedom of our civil constitution are worth defending against all hazards. And it is our duty to defend them against all attacks.”