Selective Incorporation And Education – Foundations of Freedom: Can we get the Bible back in early education? Could Beto O’Rourke really have taken our guns, considering ex post facto law? Should U.S. senators really be elected by the states? Tune in today to discover the answers to these questions and more on Foundations of Freedom! 

Air Date: 01/23/2020

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

Abraham Lincoln said, “€œWe the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”€


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, the culture, all these different topics that impact your life, impact my life and impacts our backyards, our churches, our families, all of those things and we look at these issues from a biblical, historical and constitutional perspective. That’s the right way to do it.

My name is Rick Green, I’m a former Texas legislator and America’s constitution coach. I’m here with America’s premier historian, that”€™s David Barton and Tim Barton with us, national and pastor and president of WallBuilders. Most importantly, we want to thank you for joining us. Thanks for listening today. Thanks for being willing to dive in, to educate yourself or all of us to sharpen each other’s countenance, to become better citizens, to do our part, to preserve this incredible constitutional republic that we have, make sure that we’re passing it intact to the next generation.

You can be a part of the solution, there’s a lot of ways we want to encourage you to do that. Obviously, in 2020, one of the most important things we asked you to do is become a constitution coach. Actually, host a constitution class, in your home or there at your church or wherever you can get a handful of people together. We have people that have a class with just three or four people.

We have others that have classes of hundreds of people coming out every night or once a week on Sunday afternoon to study the constitution from a biblical perspective and learn how to be good biblical citizens in this culture. You can learn more about how to do that at That’s

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The Incorporation Doctrine

Okay, guys, time to dive into our questions from the audience. Folks, you can send those into radio at, anything about Founding Fathers or what’s happening in the political realm today or the culture, frankly, anything that has to do with that intersection of faith and the culture. And if you want a biblical, constitutional historical answer on it, send it in and we’ll get to as many as we can today.

The first one alright. “€œHas the constitutionality of the incorporation doctrine been challenged to give the Bill of Rights back to we the people and the States? Importantly, can we get the Bible back into early education, state by state, can we do that while abolishing the education department and also get the 10 commandments back into our schools?”€ She also says, “€œBy the way, David, you are a national treasure. In my estimation years ago, I first saw you on TBN and wrote saying, you should be given every minute, top to bottom of the hour to share these things. I salute you and all of WallBuilders. God bless you all.”€

Well, thank you, ma”€™am, appreciate your email and your question. So guys, really the basis of the question is, you know, we’ve allowed the federal government to basically take over education using the 14th amendment. That’s really been a what, 40-50 years of that being implemented by the court. And can we reverse that trend?

The Bill of Rights


Yeah, this goes back to a fundamental question. So let’s do a quick history view here. The Bill of Rights were added by the urging of several delegates at the Constitutional Convention back in 1787. And several other of the founding fathers across the nation said we want some restraints on the federal government so they cannot get into our individual God given right.


And there were certain states that actually were suggesting we’re only going to vote in favor of the Constitution if we add a Bill of Rights too, is that right?


That’s right. You had North Carolina, you had Massachusetts, you had others said we give conditional ratification of the Constitution pending the addition of a Bill of Rights. So what happens is they ratify the Constitution, but the states submit about 200 amendments to Congress saying we want to Bill of Rights. Some of those 200 members were technical: change this pronoun to this or change a period here, whatever.

But James Madison, who had opposed the Bill of Rights said, okay, we got to do this. And so he took and combined the general things that the state said they wanted protected. They want a trial by jury. They want a due process, the right to confront your accuser. That’s not in the Constitution. We want the right to keep and bear arms. That’s not in the Constitution. So they wanted all these individual rights added because they were afraid that the federal government might someday try to start regulating things that weren’t in the Constitution.

A Limitation on the Federal Government

So James Madison takes those 200 suggestions, pulls out the cogent ones on rights, and boils it down to about 12 amendments he proposes. Congress then looks at that and they send it to the states and they get ratified. So with all of that, what you have is the Bill of Rights is there

Now, one of the early cases to deal with the Bill of Rights in the US Supreme Court, Chief Justice John Marshall pointed out that the Bill of Rights was a limitation on the federal government, not the states. It was there to say, Fed, you cannot get involved and taking our rights away from us. They weren’t worried at the state level, because states already had Bill of Rights. That goes back to the state constitutions. They started writing those in 1776. That’s why they had State Bill of Rights, so they wanted a federal Bill of Rights. We’ve got things that say state, you cannot get into these areas, these are our individual rights. So that was their concern. So always the Bill of Rights was seen to apply only to the federal government, not to the state or local governments. State constitutions did that.

But starting in the 1920s, I think there was a decision called Get low, not maybe 1923 or thereabouts. The federal government, the Supreme Court essentially said, you know what, if we kind of get up on the wrong side of the bed and hold our face really contorted to one side or the other, we think we can read the Bill of Rights that it should limit the states and not just the federal government.

Selective Incorporation

And so suddenly, what was called the Selective Incorporation Doctrine, the Supreme Court started taking clauses out of the Bill of Rights and selectively incorporating them into the federal jurisdiction. In other words, they started doing exactly the opposite of what the Bill of Rights said. They said, hey, we the Supreme Court will now tell you what you can do with the first amendment right of religious expression. We”€™ll tell you where you can and can express that faith. Well know that’s why the Bill of Rights was there, so the federal government could not tell us that. And they said, well, while we’re at it, let’s do some on the Sixth Amendment, someone on the Fifth Amendment, let’s add Miranda rights. And so they just kept going with this.

And so over time, what’s happened to Selective Incorporation Doctrine, they have taken away from the States and the people and they’ve taken control of religious expressions. So if we could get the Selective Incorporation Doctrine back, could we get the 10 commandments back in schools? Could we get the Bible back in schools? That’s kind of the heart of the question. So the answer to that question. Here’s the way I would phrase it. The Selective Incorporation Doctrine was given to us by whom? By the Supreme Court. So who do you appeal to get the Supreme Court to take back the Selective Incorporation Doctrine?


The new Justices on the Supreme Court.


Yeah, maybe the new justices. But essentially, what you’re doing is you’re asking the foxes guarding the hen house, should we have a fox guarding the hen house?

Tim: Well, of course, you should, we”€™re the best thing to guard this in house.

It Would Be Difficult


That’s right. You think we’re going to roll back Selective Incorporation, we’ve been doing this for 100 years now. This is a great deal. So and even if they rolled it back, think of 100 years that Americans have been taught that the court has the right to decide on all those issues. So even if you could roll it back, even the new Justice has said Selective Incorporation needs to go away, even if you could do that, then you’ve got all the law professors and all the commentators and all the government, teachers at high schools and everything else. They can’t do that. The Supreme Court gets the final say. This shouldn’t be such a difficult process.

Now, doesn’t mean it’s not that something should be done, doesn’t mean that is not the right thing to do, but it’s going to be difficult. Now, the good news is that back in 2010, the one amendment of the constitution that had never been selectively incorporated, was the Second amendment. And so back and the Heller decision and then McDonald decision, I think 2010, 2014, whatever was, the Supreme Court actually said, “€œWe’re not going to selectively incorporate the Second Amendment, that’s a limit on the federal government, States have their own laws, etc.”€

The Department of Education

So the good news is that the court did kind of finally put a limit on itself. But getting that roll back, man, you got to get control of law schools and education, even if the court could roll it back, that doesn’t mean that is going to stop the operation of what’s out there. And as far as getting the Department of Education gone, it doesn’t take anything except the will of the President and the funding of Congress and the agreement of the people. It’s all you have to have.

Well, so let’s say Trump says, let’s get rid of Department of Education because it was created under Jimmy Carter. A president can get rid of it, it’s not a constitutional office. Let’s say he could, what’s going to happen in national media, what’s going to happen with teachers and parents all across the United States? The federal government and Trump are anti-education, well, that’s not the deal at all. They want it back in the hands of state.


Well, I also think what we would hear is wait a second, he can’t take away that department, this departments been here for hundreds of years.


Yeah, I would hear that too.

Only Since Jimmy Carter”€¦


And you would go, oh yeah, I think you’ve confused the term hundreds of years with a couple of decades. But I do, I forget sometimes, it’s only been since Jimmy Carter that we’ve had department of education and just that short span of time and in the realm of what we’ve been doing here in America, it has grown to be a monstrosity and you’re right. People would just flip, if you just suggested removing it and going back the way it used to be, but it’s just kind of a reflection of what people think and where we are.


Yeah, and we have a different perspective today, because it’s been around that long and become a part of so many people’s lives. But it really hasn’t been that long. Let’s get back to the Constitution, let’s get back to the original intent and we can get rid of a lot of these departments. But it’s going to take not only a good president and Congress, we got to have that Convention of States though, get the court out of the law making and the policy making process.

Quick, right guys, we’ll be right back. We got a ton more questions we’re going to try to get to. You”€™re listen to WallBuilders Live, its Foundations of Freedom Thursday.

Become a Constitution Host!

Hey, friends, this is Rick Green, America’s Constitution coach and co-host of WallBuilders Live. 2020 is upon us and every one of us has a responsibility to preserve freedom for future generations. We want to equip you to be the catalyst in your community.

Bring people together and get them excited about being a biblical citizen. You host our Constitution-class, our biblical citizenship class right there in your home, in your church, at your community center, we’ll give you the tools, we’ll train you. David Barton, myself and others will be the ones on the videos doing the teaching. You pass out the workbooks put on the video and then have a great time of fellowship, engaging and equipping and inspiring each other to make the difference in your community. is the place to sign up. We’re going to do a free webinar about how to do this. On January 16th, you can sign up right there at, we look forward to visiting with you and equipping you to be the catalyst in your community to preserve freedom for future generations. Got to do your part. It’s 2020, let’s all go out and make a difference.

President Calvin Coolidge said, “€œThe more I studied the Constitution, the more I realized and no other document device by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever recorded to the human race.”€

Ex Post Facto Clause


We’re back on WallBuilders Live Foundations of Freedom Thursday today, which means we’re taking your questions. And the next one comes from Jeff. He said, “€œI got two questions for you.”€ I take them one at a time, we’re all together, so we’ll maybe break this up into two separate segments. Here we go. He said, “€œWhen Beto said, “€˜We’re going to take your AR-15.”€™ I knew his faltering campaign was done. But for the second conversation, let’s imagine that he did secure the nomination and ultimately the presidency.

“€œWouldn’t such a proposal be unconstitutional under article 1 section 9, specifically the Ex Post Facto Clause? It’s my understanding that a legally-owned anything could not be declared illegal and then confiscated. For example, it is perfectly legal to own and operate a Ford Model T on public highways even though they are not equipped with seat belts, because the belts weren’t legally required to the 1920s, even though they are now. Am I misunderstanding this clause?”€

Okay, guys, I got to plead some ignorance on this model T thing. I thought they could require an old car to have to be brought up the standards for you to have it out on the road. That’s a new concept. I hadn’t really thought about that. Let’s hit that basic question before we go to the constitutional question. Anybody know?


Yeah, so well, there are actually States that will require you to have some environmental testing done, but these are States that generally don’t recognize the rights of the people very well anyway. Where they’re going to say, no, you are going to have to go and let’s get the exhaust tested. Alright, let’s see the damage you’re going to do.

States”€™-Rights Issues

So there are some places that would put those restrictions, there are other States that would not. And so this is where it is a little interesting and some of the States rights issues. Because California tried this with guns when they said that not only can you no longer buy a gun that has or in specific cases a magazine, right that has the capacity for more than so many bullets. If you are caught carrying a magazine that has more than so many bullets or the capacity for more than so many bullets, you can be arrested. And so interestingly, California would say, we suggested you turn it in, and we give you a few dollars for it. And maybe you could still own it, you just can’t never be caught with it. Well, that’s a pretty silly way to do it.

And certainly, we would say that California was out of lines for what they have done and how they did it. But this is something that we have seen. You know, when Beto said that, of course, a lot of the acknowledgments you saw on social media were references back to well, that’s kind of what Hitler did. Right? Well, of course, the best way to keep everybody safe is we’re going to take all their guns away. Well, that is been the statement of communist leaders and dictators for, I don’t know if it’s been the entire history of the world, at least the entire history of gun.



Well, we know, that’s right. Because we know that George Mason, other Founding Fathers, Patrick Henry said, the first thing that a tyrannical government wants to do is take away your guns, and they said that that had been the lessons to all history. So that was 250 years ago and to them is already old history at the time they said it. So it’s been going a long time.


Well, and it’s still been from that same argument that it’s for the good of the people that we’re going to do this. It’s for your own benefit that we’re going to have to take your guns away. And right, this is, of course, the verbiage that all leaders use as they are destroying your God given rights. The notion of Ex Post Facto is something that doesn’t seem to line up constitutionally, even though you do see some states try to do that.

“€œAfter the Fact”€


Yeah, what happened? And by the way, Ex Post Facto, is a Latin phrase that means after the fact. So what you’re doing is you’re saying, we’re going to criminalize something you did after the fact, it wasn’t wrong when you did it, but now that you’ve done it, we’re going to criminalize it and go back and punish you for what you did when it wasn’t illegal. You can’t do that. That’s why the Constitution prohibits an Ex Post Facto Law.

So in our case, we actually have a 1951 Chevy pickup, it has no seat belts in it, has none of the environmental protections in and we drive it everywhere if we want to. It’s not an issue. So that’s  an Ex Post Facto”€¦


So he”€™s right about that on the vehicle, they can’t change what”€™s required of you for the trial”€¦


They can change to, now they try to just like California can try to, but this is where you come up and say no Ex Post Facto. So what they call that is a “€œGrandfather Clause”€”€¦


Now is the Green Hornet we’re talking about?


Yeah, exactly. The Green Hornet is retired, it is gone. This one, Rick, is actually 25 years older than the Green one that you knew.


Sorry to our audience, by the way. But I just want you to know the first time I went to visit with David at the library, he was driving the Green Hornet which, what was that, a Datsun, a little green miniature, I thought it was miniature car?


There was a nice lime green Datsun pickup that I’d had since 1976.


Yeah, I was in 1974.


It was a 74  pickup that I got in 76 for graduation.

Grandfather Clause


Love it. Love it. Okay, don’t mean to sidetrack you


No, but that’s a “€œGrandfather Clause.”€ And what happens is, they can say, okay, you’re grandfathered in. From here on out, you can’t do this anymore; from here on out, you have to have some seat belts in all cars. But prior to this date, they are grandfathered in. So that’s right now. How the court should rule, I mean, when you don’t have a common worldview, constitutionally, the court should say, no, you can’t make it illegal to own an AR-15. You can make it that from now on, you can’t sell an AR-15, but those who already own them, they can continue to own them. You can’t make an Ex Post Facto law, make it a crime to own something that wasn’t a crime when you had it.

So that would be the proper position to go constitutionally. And I would think that most courts would come down with the right conclusion, even though they might not like it. They couldn’t do that. So, you know, Beto popped off the comment he did and, you know, from a constitutional standpoint, when what liberal progressive Democrats ever cared about the Constitution? But nonetheless, when we constitutional standpoint, even if he had done that as President, the chances of it having actually become policy are slim to none because of the Ex Post Facto Clause in the US Constitution.

Too Close for Comfort


And since we mentioned better today as we go to break, I just got to, you know, remind everybody out there listening, yes, these crazy things he was for, like literally taking your guns not just ARs, but practically every gun when you really listen to what he said, literally taken away nonprofit status for churches that didn’t count out to whatever the new religion was going to be of the state, all these things positions that he took, he was just that close if you can see my fingers, just that close to being the US senator from Texas and we would have had to put up with this nonsense for six years because he believed all these things. Before that, he just managed to not say it publicly. I say all of that to say everybody, no matter where you live, pay attention to those elections. Don’t take anything for granted. Be active, be engaged, make sure that you’re getting good biblically sound folks elected. Quick break, we’ll be right back. You’re listening to Foundations of Freedom Thursday on WallBuilders Live.

America”€™s Hidden Heroes

Hi, this is David Barton and this is Tim Barton. We want to let you know about a series that’s happening right now on TBN on Thursday nights. Now TBN is a Trinity Broadcasting Network. Every Thursday night there’s a series that we’ve filmed called America’s Hidden History. In this season, it’s called America’s Hidden Heroes. The reason is we highlight heroes from American history for years. We’ve been focusing on the forgotten history heroes of the nation and now we have a TV show just highlighting some of those heroes.

These are inspiring stories about some of the greatest people maybe you’ve never heard about. We go on location, we go to the site, we show you where the events happen and it’s a story of folks like Bronco Charlie and Stagecoach Mary and Jedediah Smith and Robert Smalls and so many inspiring folks.

Now, this happens every Thursday night and the time is going to be different based on where you live, either way. We think this is something that will so encourage and inspire you and learning some of these great stories from America’s Hidden History.

Defending Liberty

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

The 17th Amendment


We”€™re back on WallBuilders Live Foundations of Freedom Thursday. In our last segment, we had a great question from Jeff and we’re going to take a second question from Jeff. He said, “€œWhat are your thoughts on the 17th amendment? I am of the opinion that changing the election of the Senate to popular vote was a mistake and that it took power away from the States under the guise of quote democracy. I do not understand the historical context behind this amendment.  Was changing it a solution in search of a problem? Or was there specific cases of abuse or corruption amongst the State legislature to the time that necessitated the change? Many thanks for all you guys do.”€ Jeff.

Okay, great question. Once again, we cover this everybody out there on Constitutional Live, so make sure you’re doing your study of the Constitution. Now we go into David’s library where we go into Independence Hall, it’s available at right now. And we actually dive into specifically this issue of the 17th amendment. Guys, in just a few minutes, why this is the second worst amendment to the Constitution?


Yeah, what happened was the way the founding fathers set it up, you had the Senate that would represent the States and the US House that would represent the people. So what happens is in the Senate, every State is equal to every other state Rhode Island and California had the same power. And the House, they represent population, California will crush Rhode Island every time. So what they did was, Roger Sherman is the founding father who recognized we needed this camera system. What happens is when you elect US Congressman, the people elect US Congressman and they go there to represent the people.

Senators Should Represent the States

But the way the constitution was set up was since senators, US senators are represent the States, the State legislature is who chose the US senator. So that’s the way it had been and that’s the way it was practiced. But then what happens is, by the time I get to be a land Baron in the 1880s and I have all this wealth because I own railroads on whatever else and I live, let’s say in Colorado, I’m going to give a $50,000 contribution to every State senator in Colorado and they’ll vote for me to beat the US, Senator.

So what was happening was wealthy people were buying their way into the US Senate. It was a prestige thing and so at that point, the State legislature said, this is not a good deal. We’ve got internal corruption going on. Let’s put this back in the hands of the people. Now, the 17th amendment would have been okay if the people were elected senators who remembered that they were representing the state and not the people. But what’s happened is the US Senate has become a super House of Representatives, it no longer represents the states. It’s just doing whatever the people say.

Well, sometimes the state has a different position from what the rest of the people in the nation may have and to preserve the 10th amendment, States have to stand up for what their rights are. And so you need a US Senator that says no, no, the Constitution only allows the federal government to do 17 things, the states do everything else.

A Really Bad Constitutional Amendment

We the senators represent the States and we’re not going to let you have a Department of Education because that belongs to us under the 10th Amendment. So the 17th amendment, the effect of that has been now everything is driven by polling and by populace, you no longer represent the Constitution, you don’t understand the 17 enumerated powers.

So I would say, Rick, is you said that that was a really bad constitutional amendment, but it was not a solution looking for a problem. I mean, there literally was a problem that was out there with the corruption that was showing up. But you know what, you have corruption anytime you have people. So you have corruption by directly electing senators. Now you have senators who forget why they were there, they’re no longer bicameral branch. So we’ve got another set of problems that’s come with the 17th amendment, but the 17th amendment actually did try to solve a problem that was occurring at that time.


And so David, even though there was you know, those challenges back then, do you think reversing at this point, there seems to be some momentum. As I do classes across the country and the subject comes up more and more people are actually the ones to say, hey, we need to get rid of 17th amendment before I even teach anything on it, which I didn’t think people would pay close enough attention to before that. Do you think that’s still a good idea to go back to the legislature’s choosing them so that there’s some kind of buffer there where they can hold that Senator accountable to not do new programs at the federal level?

Understanding the Constitution


I think that makes sense if you have State legislators who actually read the constitution, know what the States are supposed to protect. I think it makes a lot of sense if actually citizens know what the 17th amendment was. And those that are interested in the Constitution, this is an area of growing interest for them. But I think if you ask 100 citizens on the street, 100 citizens at any mall, what’s the 17th amendment and did you support it? They would say, amendment to what? And do you why, I support US senators. I mean, it’s a hard amendment to reform because we have no knowledge on it. It’s never taught in schools that I’ve ever seen to any degree. I mean, it may be out there I’ve never seen it.


Well, especially not knowing the context of why it was created the way it was and then why it changed and why maybe we would want to change back now. There’s a lot more to the story certainly than what you’re going to just find on a quick search and Wikipedia says, and that’s your point. I mean, nobody is talking about this. And this is one of the many reasons we would encourage people to check out, because we try to give a lot of the history, a lot of the stories that have forgotten that people just don’t know to help remind people why America was set up the way she was, why the founding fathers did the things they did with the Constitution.

Foundations of Freedom Thursday

And this is also frankly, why we do WallBuilders Live to try to help remind people a lot of a context and this is exactly what we do on Foundations of Freedom Thursday, is look back and say, what is the constitution, what were the founding fathers all about, why do they do it and how should we fix the problems we’re dealing with now?


Well, first, we are out of time for today, that’s been Foundations of Freedom Thursday here on WallBuilders Live. You can get more of those programs at our website,, that’s a place where you can take all kinds of action. You can share those programs on social media, we certainly encourage you to do that. You can also make a contribution. That’s a very easy thing to do. Just click on the contribute button, make that one time or monthly contribution, whatever was possible for you. It helps us to spread the Good News, not only to have this radio program, reach as many people as possible, but also to train pastors and legislators and young leaders in the constitution and in biblical values and how to have it have good biblical citizens in our community so that we can have a good culture and a good society. That’s what we do here at WallBuilders and you get to be a part of it when you make that contribution.

Selective Incorporation And Education

So please consider that today. We’re listener supported program, don”€™t happen without you and there’s so many of you from across the nation that have been such a great support to this program. We thank you for that, we appreciate it and we ask that you continue to do it throughout 2020. Very important year. Very important time for all of us to be engaged. And once again, want to encourage you to do your part to be engaged. You can become a Constitution coach. Go to and sign up and start hosting a Constitution class where you have David Barton and myself coming in directly from his library and from Independence Hall on those videos, teaching those folks that you gather about biblical citizenship and how to follow the Constitution, the biblical worldview and the historical perspective to have a good society.

All the different things you can participate in can be found at www.wallbuilderslive com or We sure appreciate you listening. You’ve been listening to WallBuilders Live.

Calvin Coolidge said, “€œThe more I studied the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”€