Special Masters, Constitution Day, And More – On Foundations Of Freedom: What is a “special master,” and what have they done in the past? How is the FBI raid similar to British acts that sparked the Revolution and calls for true Freedom?Are schools still required by federal law to teach the Constitution if Constitution Day falls on a Saturday? Tune in to hear the important answers to these question and more on today’s Foundation of Freedom program!
Air Date: 09/15/2022
On-air Personalities: David Barton, Rick Green, and Tim Barton
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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.
Welcome to the intersection of faith and the culture. It’s WallBuilders Live. And today is Foundations of Freedom Thursday. What a great week to have Foundations of Freedom Thursday. Constitution Day is coming up just a couple of days from now, it will be September 17th, which falls on a Saturday this year. But that doesn’t mean schools are off the hook.
There’s a federal law passed in 2004 that requires students and schools to spend time on the constitution on Constitution Day. And if it falls on the weekend, you do it on Friday or Monday. And we actually got that done after I had passed the celebrate Freedom Week in Texas, requiring an entire week where they spend time on the Constitution and the Declaration throughout that week.
That’s also this week. So I encourage folks in Texas and the other states that have adopted in Florida, Tennessee, Arkansas, a bunch to do the same thing. Go to your local schools and ask them what they’re doing this week for Constitution Day and for celebrate Freedom Week. What a great opportunity to teach our kids what makes America great and how to restore this constitutional republic.
I’m Rick Green, America’s Constitution coach and a former Texas legislator. I’m here with David and Tim Barton. Of course, WallBuilders, if you’re familiar with it, it comes from the scripture out of Nehemiah that says, arise and rebuild the walls that we may no longer be a reproach. David started WallBuilders three decades ago.
Separation of Church and State
The work has been phenomenal. It has absolutely changed the game. It’s restored the idea of people of faith influencing the culture. It’s debunked this myth of separation of church and state not to be found in the Constitution or specifically the First Amendment for sure. And just so thankful for what David has done with WallBuilders.
He’s our founder here at WallBuilders. He’s America’s premier historian. Tim Barton, national speaker and pastor and president of WallBuilders. And either of these guys, you got to get them into your community and get them to come speak and fire up the folks in your community to make a difference.
You actually can be the one to be the catalyst for firing up your community by hosting one of our constitution classes. What a great time to do that, it’s Constitution Week. So why not sign up for free to be a Constitution coach and you’ll even get constitution day material that you can take to your local school and present it if you want, or just give it to a teacher and let them present it? But sign up as a coach, it’s all free.
Patriotacademy.com, click on Constitution coach get signed up, get our materials. You’ll be able to do our Constitution Alive class and American Campfire revival with Kurt Cameron and all the other fun stuff. Check it out today at patriotacademy.com. This is the time to do it. And of course, with today being Foundations of Freedom Thursday, it’s a great time to talk about those foundations and what you can do to restore those foundations.
Alright, David and Tim, time to dive into some of those questions, got quite a few. Let’s get our first one from Missouri. Christie sent this one in. She said, “What is a Special Master? When has the Special Master been used in the past? It sounds like the name alone will cause some on the Left to melt down and throw a temper tantrum. Thanks for all you guys do at WallBuilders. God bless.”
Okay, so Special Master, guys, I have zero idea what the right answer is to this. Like, none, I don’t even have a clue.
Yeah, this is really a great question, and it is really timely because of all the stuff that happened with the raid at Mara Lago, those guys went into Trump’s place while he was gone and took all the documents out and can they take it out, and ended up they took a lot of personal stuff out and went to places that the documents were and what were they doing in other parts of the house?
So right now, it’s a big spitting match back and forth between the Department of Justice and between Trump’s attorneys. Department of Justice said, no, we did everything right. And Trump’s attorneys say, wait a minute, you got a whole bunch of stuff that you’re not even supposed to be seeing because it’s not part of what was in the subpoenas. Well, who knows that?
Who can answer the question of whether that stuff is what the Department of Justice is after or not? I mean, the three of us can’t sit here and answer that. That’s for sure. And a lot of judges can’t answer that because all they know is what’s presented to them by the DOJ when they come and ask for a subpoena, whatever testimony is given.
So a Special Master actually goes back to 1912. In 1912, law was getting fairly complicated and fairly difficult at a time when they had come up with all this antitrust stuff. You remember Teddy Roosevelt wanting to bust all the trust and get all these big companies knocked down. And so what happened, all these lawsuits started coming to judges with the antitrust aspect. And those big companies, I mean, that’s a lot of financial information, it’s a lot of nuances of law. You’ve got dozens maybe of attorneys in one company trying to get them around the laws legally and not get prosecuted.
And so you have all these cases that were coming on antitrust, and it got to where the judges said, man, this is way over what we know. We don’t understand all this antitrust law. We don’t understand what all the experts are doing and how they argue.
And so they started appointing Special Masters that had an expertise in antitrust law that could go in and sit down and look at the dispute, look at the records, they were masters in that stuff, and they could come back and advise the judge.
And they’re kind of like an expert witness for the Judge; here’s what we found. We don’t care which side wins or loses. We care that the law be followed. And here’s what the law says, and here’s what we see from both sides, and here’s our recommendation to you. So really, it’s kind of like having expert witness testify.
Now, this started becoming a deal where the judges started picking up and said, hey, we need more expert witnesses, because this really helped because we really don’t know a whole lot of the things. I think we shared before that under the current US legal code right now, if you took the US federal code, I think it’s US News and World Report reported that if you were to read 700 pages a day of the federal code, it would take you 25,000 years to read it.
So I don’t know of a Judge in America that can possibly go through and know what all the laws are and what they say on any subject, which is why judges have clerks, that’s why Supreme Court Justices have four clerks, people to look this stuff up all the time. And that’s why they only take 60, 70, 80 cases a year with four people working on it all year long trying to find what the law says.
So what happened is they started using more and more Special Masters, Judges would start appointing them. And it got to a case in 1956 where there was a Judge who appointed a couple of Special Masters on an issue that was financial. And the Court of Appeal said, no, you can’t do that because you’re an expert on that issue.
You just appointed it to Special Masters because you had a full calendar and you didn’t want the extra work. And so you’re not doing this to have somebody that’s an expert. You’re doing this to have someone take the workload off you, and you can’t do that.
Judges Just Don’t Know
Well, it went all the way to the Supreme Court. And the Supreme Court had a decision in 1957, and that decision was actually called Levi versus House Leather Company. And that’s what kind of established the precedent for Special Masters, that a Special Master has to be someone who’s an absolute expert in that area, it has to be the judge is not an expert in that area, doesn’t actually know what’s happening.
And this is a person that the Judge brings in to actually be someone that answers to the Judge, and that brings the information back to the Judge and that adjudicates both sides because this is way over the judges pay grade essentially. And so this is what a Special Master does.
And I tell you, I’ve just seen this recently, even in the last couple of weeks in Texas, we’ve been involved in a case going on in Texas dealing with an abortion law that shouldn’t be going on because Dobbs issue has come down and throwing everything back to the states. And so it’s an over and done deal, except there is a judge in a county who didn’t know what the law said or what was going on.
He’s actually got a case going now on whether you can sue to stop abortion. States already stopped it, and he just doesn’t know the law. And so I was just talking to the attorneys and said, this guy is going to get crushed, this judge will get crushed at the Appeals Court because this is so clear in the law, but the Judge just doesn’t know the law.
And so that seems a strange thing to say the judge just doesn’t know the law. But there are so many hundreds of thousands of laws out there, they can’t know them all. And this is what a Special Master does.
So that’s the use of it. It’s just a counselor to the Judge. The Judge will still make his ruling, and that will probably be appealed by one side or the other to go to the Court of Appeals where they’ll have higher Judges looking at it, and may go to the Supreme Court. But it was pretty interesting.
I didn’t know all that stuff about a Special Master going back to 1912, but it really kind of started out with the antitrust laws and now it’s become a special part of law, but it’s not used all that often. You expect the Judge to know the law and to study the law and to find the answers.
But when it gets really complicated and when it’s a really high profile case like former President Trump versus the Justice Department, you really don’t want to get that one wrong and that’s where you start bringing in Special Master to make sure you get it right.
Yeah, I thought it was interesting that and I didn’t even make the connection whenever I was reading the question, I didn’t realize she was asking about that’s why it’s in the news is the Trump case. And I did notice that the FBI, the DOJ, they’re opposing the appointment of the Special Master.
They’re trying to prevent that from happening, which do they just not want an expert to come in and look at what they did? Is that kind of the deal? They’d rather have a judge they can bamboozle on this thing, what do you think?
Well, it’s interesting too that at this point, at the time of us recording this program right now, there’s not been anybody appointed, but people are suggesting options and both sides get to suggest. So if you’re from the Department of Justice side and you get to suggest somebody to review the evidence, why would you be against someone who would be able to go in and say, yeah, the FBI took all of the files they needed, this was all correct. Why are you against any independent reviewer if you get to nominate an independent reviewer, unless you really don’t want someone who might actually tell the truth about what you took?
Writs of Assistance
And for example, why are you going into Melania’s closet? Why are you going into Baron Trump’s room? Why are you trying to go other places in the house to search for other evidence? This is one of the things that we’ve talked about many times before that is also ridiculous, a little bit along the lines of like what the IRS does.
When the IRS says, hey, we want to see all your records and we don’t have any proof you did anything wrong, but we want to investigate it and we find something you did wrong, then we’re going to penalize you for something we found out even though we had no proof you did anything wrong in the first place to initiate our search of what you’re doing.
I mean, it goes back to what England was doing back in the days of the American Revolution, right, when they had people going door to door and they were searching American colonists’ homes until they found something wrong, and then they would fill out the warrant and say, yeah, that’s why we’re here, we’re penalizing you for what we found. This is really ludicrous.
And it seems like the Bill of Rights specifically and explicitly talks about in this due process notion that no unreasonable searches or seizures. Well, what is your reasonable search? Because there’s one individual that said, yeah, we think Trump has some of this information. Well, what happened to Hillary Clinton that had classified documents on a private server and she gets off scot-free and a president who is in a different category with what he’s able to do and what he can even declassify?
I mean, the whole thing is certainly a witch hunt. It doesn’t make any sense. And now, the fact that they’re opposing even the idea that there could be an independent person to come review what they have done, it certainly gives, at the very least, the implication that they want to cover up what they know they have done incorrectly.
And Tim, what you were talking about was called a writ of assistance. And this is so important. I mean, what you just mentioned is super important. And the IRS is a great example of not following the Constitution, and we all let them get away with it. But in 1761, the writ of assistance allowed a British official to go into a home with an open-ended search warrant and search until they found something bad, and then they would fine you for it or whatever.
It was James Otis, the Founding Father, who made the argument against that in 1761 in a court. And a really young John Adams was an attorney there listening at that argument. John Adams said, that is when and where the American Freedom movement began. Now, I find it interesting that John Adams points to this search and seizure kind of stuff, this warrants that that’s the beginning of America’s freedoms.
So, Tim, you mentioned the Constitution is really clear on this. Let me just read the Fourth Amendment and what the Fourth Amendment says on this. Fourth Amendment, Bill of Rights, it says, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by author affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
Now, if you take that on its face, alright, did your search warrants, say we’re going into just one closet, we’re after three boxes, and this is what we’re looking for in the document, how did you come out with 17 boxes, and how did you have personal papers in it like passports in it? How did you have travel records in it? How did you get in Melania’s room? How did you get into Baron’s room? It’s got to be specific on the search warrant.
The Spark of the Revolution
And so, Tim going back, and, Rick, you raised it too, how can they object to a Special Master? What they have told the Judge in their new filings is, well, the deal is we have so much stuff there, and we really don’t know what we’re looking for until we see it all. So we need to be able to go through all of it so that we know what we’re looking for.
That’s a writ of assistance. That’s where the whole freedom movement began, was not allowing that to happen. So it’s going to be interesting to see what the Judge does with that argument. But that’s the argument of the Justice Department, they need to be able to go through all of those papers so that they can see what they really need. That’s a witch hunt.
And by the way, I’ll just put it out front. The IRS should not be able to audit you unless they specifically tell you the papers, the effects, everything with probable cause, with a signed affidavit by somebody who said, I saw the check number 973, they did something… I mean, IRS can’t come in and do a witch hunt under the Fourth Amendment, and we let them do that all the time. That’s not the same as the question we’re asking.
But what’s going on with Trump, that Special Master is supposed to be the one who goes through all the papers independently, doesn’t let the Justice Department see them, and then says, these are the papers the Justice Department can see under their warrant; under what they issued the warrant, here’s what they can look at.
And to that point, guys, I would draw the attention to it, this is not what the question was, but it’s certainly related. Because if we’re talking about now more than 80,000 new IRS agents, there will be a whole lot of individuals, small businesses, I mean, it would not be surprising for WallBuilders, Patriot Academy to be on the target list of agents to come and want to review. But what do you want to review? Well, we’re not sure you’re doing things right. What do you think we’ve done wrong?
Alliance Defending Freedom
I mean, genuinely, this is the kind of stuff that would be great if there is a lawsuit, not just to protect us. This is Americans in general because we do things above board and above approach and we’re good. We’re not worried that we are doing something unethical, immoral, illegal.
We can stay above approaching the way we operate. With that being said, it would be great if before all 87,000 of these new IRS agents were hired, if somebody actually pushed back on one of these IRS investigations that there was an actual case.
Because I feel like some of our friends, whether it would be somebody from maybe like a Mat Staver from Liberty Counsel or maybe Mike Farris from Alliance Defending Freedom, some of our friends who do things in the constitutional circles of litigation, this would be a very interesting case that if we could help put the government back inside the box of their jurisdiction, which it does seem like now we have more and more judges on a federal and even a US Supreme Court level who are at least understanding and appreciative of the boundaries of the Constitution.
This would be a very interesting case where perhaps we could limit some of the overreach of these agencies just by having people challenge some of these unconstitutional things they do. So this might be an interesting thing in the future. If there’s somebody out there and you’re going through this, maybe it’s worth reaching out to some of the attorneys and saying, hey guys, right, do we have grounds to push back on this? Can they do this? Because it certainly seems like it would be great to have some checks and balances before these 80,000+ IRS agents are loose on the American people.
And just to point out, once you let them in your house or into your books, you can’t do it at that point. Once you’ve given them permission to look, they have permission to look. What you have to do is when they come, you have to meet them at the door and say, hey, I’m reading the Fourth Amendment here and I want to see your warrant and I want to see the specific things that you’re going to search for because it says it has to be by oath of affirmation.
I wanted to see who your witness was. And it says particularly describing the place to be searched and the person or things to be seized. So I’m not letting you in until you show me that warrant that you want to see whatever it is financially, IRS stuff, whatever they want to do. But once they get into your house, you’ve waived that right.
So don’t get to that point. But Tim is exactly right. At some point we’ve got to say, wait a minute, I’ve got a Fourth Amendment of the Constitution, I can read it. Maybe you guys don’t, but I do. And I want to see that search warrant and I want to see the probable cause that’s behind it.
Well, David, you talked about these are the reasons for the American Revolution. In fact, when you go to the 27 grievances, number 10, he has erected a multitude of new offices and sent hither swarms of officers to harass our people and eat out their substance. I mean, that’s 87,000 is a swarm of new officers to harass our people and eat out their substance.
And I got to tell you guys a story because I’ve been telling this on other media. We should talk about it here. David, it’s so cool how God works. When we filmed Biblical Citizenship almost two years ago and we were filming there at WallBuilders, I don’t know if you remember that night when we filmed and you had all this new material that I wasn’t even aware you were going to put into the new course.
And you’re talking about writ of assistance and James Otis and John Adams talking about that was when independence was born and then it grew up 15 years later. And you’re going through all this stuff and then when it was all over and we got home and we edited it, and I was like, wait, I want David to talk about truth and courage.
So we went back and we filmed. Do you remember this? We went back when you flew out to Rob McCoy’s church and we filmed another night to be the third week of Bibset, but we kept what you filmed that first night and put it in the second week when Tim talks about a response to the 1619 Project. Okay, I’m leading all that up to say this. I had no idea, and I don’t know if you knew, I don’t know why God put that on your heart to add that to this Constitution class.
But for the last month, I have read from our Biblical citizenship course what you put in there probably 100 times on media outlets where James Otis said, one of the most essential rights is the freedom of one’s house, a man’s house is his castle. But these writs totally annihilate this right, it is a power that places the liberty of every man in the hands of every petty officer who may reign secure in his petty tyranny and spread terror and desolation around him.
I mean, David, you did that two years ago before this stuff happened, and I just think that was God leading you to put that in here to cover an area of the Constitution we had not covered in Constitution Alive. And it’s perfect for this moment because it’s exactly what you said, this is why they revolted. And yet here we have our own DOJ, Department of Justice doing the same kind of thing.
Essentially, you look at that warrant and it basically said, if you find a piece of paper anywhere in the house, you can get it. I mean, it was nearly that broad. So anyway, thank you for listening to whatever the uncertainty of the Holy Spirit was a year and a half, two years ago and putting that in the course because it was for such a time as this. I encourage people to go study that.
We were actually working on The American Story at the time, and it’s working on The American Story, and I got back to James Otis and read that speech. I did not recall that from any previous years of having studied him, sure I probably saw it, but when I read that speech, I started saying, oh, my goodness! I can think of so many things going on right then, not the least of which was IRS audits that were going on, and this thing about specifically describing the papers and all the stuff.
I thought, man, if we ever got this back, if we ever were to recall that a man’s home is his castle and that you have, as the Second Amendment says, James Wilson, who helped so much with the Constitution said if you get robbed in your own home, it’s your fault because the man’s home is his castle. You’re the one supposed to be defending your home.
It’s not the cops that defend it. And that concept of that sovereignty that individuals have, I mean, that really got me when I read that James Otis speech and I saw John Adams said that that is where liberty was born on that very issue, on keeping government inside its boundaries and keeping it out of the daily life of citizens, especially out of our house. I mean, that was a big deal with the Founding Fathers.
And as you said, reading from the Declaration, the swarms of officers, that’s what they were. They were swarms of British IRS officers going to their house looking for whatever. In this case, British DoJ officers looking in their house for whatever they want until they found something.
I mean, you’re going to find something eventually, when you’ve got 4,500 federal felonies on the books and you’ve got tens of hundreds of thousands of pages of laws on the books, you will find something if you just give them enough time. That’s why you’ve got to have it written down specifically what you’re looking for.
I forget the communists from 80 years ago that said show me the man and I’ll show you the crime, right. You just tell me the guy’s name and I’ll figure out a crime. We’ll investigate long enough that we’ll find a crime to throw against him. It’s just so powerful that you put it in.
And by the way, I was reading for anybody out there that thinks that David or Tim or I give too long a speeches, this speech by James Otis apparently was like 5 hours long when he went on a rant against these writ of assistance. So our speeches are short, people. If you can put up with James Otis for 5 hours, you can handle the Bartons and the Greens. Okay, quick break guys. We got a take a break, we’ll be right back. We’ve got more of your questions on this Foundation of Freedom Thursday. Stay with us, you’re listening to WallBuilders Live.
Hey, this is Tim Barton with WallBuilders. And as you’ve had the opportunity to listen to WallBuilders Live, you’ve probably heard the wealth of information about our nation, about our spiritual heritage, about the religious liberties, about all the things that makes America exceptional.
And you might be thinking, as incredible as this information is, I wish there was a way that I could get one of the WallBuilders guys to come to my area and share with my group, whether it be a church, whether it be a Christian school or public school or some political event or activity.
If you’re interested in having a WallBuilders speaker come to your area, you can get on our website at www.wallbuilders.com, and there’s a tab for scheduling. And if you’ll click on that tab, you’ll notice there’s a list of information from speakers’ bios to events that are already going on. And there’s a section where you can request an event to bring this information about who we are, where we came from, our religious liberties and freedoms, go to the WallBuilders website and bring a speaker to your area.
Abraham Lincoln said “We 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.”
We’re back here in WallBuilders Live. Thank you for staying with us on this Foundation of Freedom Thursday. Next question comes from Pastor Mark Kurtz. He said, “Gentlemen, thanks to you. I know that federal law mandates that each educational institution that receives federal funds teaches on the US Constitution September 17th of every year.
However, as I was preparing to contact my local school district to see what they had planned”, which by the way, everybody, you should do that, he said, “I learned that September 17th falls on a Saturday or a Sunday this year and the next. My question is, are schools still required to teach on the Constitution sometime the week before or the week after Constitution Day in such cases?
If not, perhaps we should begin to petition Congress to add such a stipulation to the existing law. I love your podcast and written materials.”
Pastor Mark, thank you so much for sending that in, and thank you for even thinking of doing this. We encourage everybody at home to do the exact same thing. So, David, what do we do, Constitution Day falls on a Saturday this year?
Well, first off, before we get that, let’s just point out the Constitution Day used to be called Citizenship Day. It was started by Harry Truman, and it was citizenship. And we want to honor the Constitution, honor the country, honor our duties. It became under the senator from West Virginia, William Byrd, he changed it from Citizenship Day to Constitution Day and said, let’s specifically not only do citizenship, let’s study the Constitution.
Now, here’s the big clause. I want to read you this. Listen to this, really important. It says, “Each educational institution that receives federal funds for a fiscal year shall hold an educational program in the United States Constitution on September 17th of such year for the students served by that educational institution.” It say shall allow, it’s not a may law. It doesn’t say you may do this. It says you shall do this.
So everyone listening ought to go to your school and say, hey, this is a requirement in federal law, this is a shall do law. What are you doing? What is the program you’re doing on the Constitution on the 17th because you have to… Oh, you don’t have one? I’ll be happy to talk about the constitution on the 17th. Let me add it.
Special Masters, Constitution Day, And More – On Foundations Of Freedom
So this is something that we need every single school doing. Interestingly, it also says that every single federal employee, when they’re hired in any agency has to go through a course on the constitution. I bet you that’s not happening either and that’s part of the reason we have stuff going on.
So what happens if it falls on a weekend? Well, if it falls on a weekend, the law says you still honor it, so you honor it. If it falls on Saturday, you honor it on Friday. If it falls on Sunday, you honor it on Monday. So you go ahead and do it. 2005, 2006 was one of those, where in 2005, it fell on Saturday, so they did Constitution Day on Friday; in 2006, it fell on Sunday, so they did Constitution Day on Monday. So you still do it. You have to do it every year. It is a shall law, not a may law, really important.
Well, we’re out of time for today, folks. Thanks for joining us on this Foundation of Freedom Thursday here on WallBuilders Live. As I talked about at the beginning of the program, it’s Constitution Week, so make sure you’re doing your part. Sign up as a Constitution coach today.
You don’t have to know anything about history or government or the Constitution. We’ll teach you all that. You’re the lead learner as you gather people in your living room or at your church and go through one of the courses. It’s free for your students as well. What a great time to do that.
And then, of course, the new constitution day material for schools is available at patriotacademy.com as well. Just sign up as a coach. You’ll get access to that full PowerPoint. It’s incredible. And you can take it and present it to local schools or give it to a teacher and have the teacher presented at the schools however you want to do it. But be sure you’re participating. Now is the time to restore our constitutional republic by getting rid of this civic ignorance and replacing it with civic literacy, you’d be a part of it.
Thanks so much for listening. You’ve been listening to WallBuilders Live.