Supreme Court Nominees, Foundations of Freedom Thursday: It’s Foundations of Freedom Thursday, a special day of the week where we get to answer questions from you, the listeners! Always answering your questions from constitutional principles! Tune in today as we answer questions dealing with division in the country, Supreme Court nominees, and so much more, right here on WallBuilders Live!

Air Date: 07/26/2018

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

Intro:

President Thomas Jefferson said, “I know no safe depository of the ultimate powers of the society, but the people themselves. And if we think them 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. This is WallBuilders Live! Where we’re talking about today’s hottest topics on policy, faith, and the culture. We always do that from a biblical, historical, and constitutional, perspective.

We’re here with David Barton, America’s premier historian and our founder here at WallBuilders. Tim Barton’s with us, national speaker and pastor, and president of WallBuilders. And my name is Rick Green, I’m a former Texas state legislator.

You can check us out at WallBuildersLive.com for radio programs from the last few months. Or you can go to WallBuilders.com and get all kinds of tools that will equip you and your family and inspire you to help restore America’s Constitution. So, check out those two websites today – WallBuildersLive.com and then WallBuilders.com.

Today it’s Thursday, so we call it around here at WallBuilders Foundations of Freedom Thursday. It’s a chance to really dive specifically into that biblical, historical, constitutional, perspective on the questions that you want to ask. So, please send those into us – [email protected], that’s [email protected] You can ask about an issue that’s happening right now in the news, you may want to ask about some area of the Constitution, or the Declaration, or the Founding Fathers. Whatever your question is, send it in to [email protected] and we will get to as many of those as we possibly can on our Foundations of Freedom Thursday program.

David, Tim, we’ve got quite a few. We’ll try to get to at least three or four today. Y’all ready to dive in?

Tim:

Let’s do it.

Lots of Great Questions!

Rick:

Alright, first one comes from Missouri. Christie sent in an email. She said, “Hi WallBuilders. My family and I enjoy your daily show. It’s so informative and interesting. I know I’ve learned more from listening to your shows than I ever learned in public school 30 plus years ago. We home educate our five children and WallBuilders is a great resource for our family. Thanks for all you do. Now to my questions–”

Before I read her questions though, I would say to the audience, that’s a great idea! You should use the WallBuilders program to get that daily education no matter how old you are, whether you’re homeschooling or not. It’s a great way to gather the family around and get educated on the issues of the day.

Now to Christie’s questions. She said, “It seems like our nation’s politics are so hate filled and some members of our government are downright evil and unconstrained. Has our nation been like this before? It also appeared the Democrats wanted a fight before President Trump even released his Supreme Court nominees name. Has this happened before? I know with the Internet and instant news we get bombarded with news happening so much and our society hasn’t had this much news in your face all the time before. We as a nation just seemed so divided. Do you think another “Civil War” is on our horizon?”

And then her last question is, “Who and which president nominated them was the fastest Supreme Court nominee to be confirmed? Thanks again for your input. God bless America.” Okay, long e-mail, guys, sorry about that. Just great stuff, Christie. Thank you for your encouragement about the program and then some really good questions here. David, Tim, so first of all just the division issue. Have you seen this as you study our nation’s history before? Do you think– second question– do you think a Civil War could potentially be on our horizon? And then third specifically to this obvious immediate opposition to the president’s nominee for the Supreme Court. How fast were they nominated in the past? Maybe who was fastest and who nominated? That’s a lot, but I’m throwing it all out there. You guys dive in.

A New Civil War?

David:

Yeah, what you’ve got is when you look at polarization this is nothing new. There was secession movements back in the 1810 period because there was so much conflict and * between Americans, between the Federalists and the anti federalists, that you–

Rick:

They weren’t even twenty five years old yet as far as under the Constitution, almost thirty five under the Declaration, but still you’re saying as early as 1810.

David:

That’s right. When they started getting in the war of 1812 you had a section of the country saying, “Hey, that’s Mr. Madison’s war we don’t want a part of that.” And you had several states look as seceding even back then. So, they were polarized over that issue of the War of 1812. You move in the 1830s they are so polarized that South Carolina is threatening secession and that’s when Andrew Jackson steps in and tries to stop the secession movement. You move into 1856 and they are so polarized over the issue of slavery that, man, the elections are a really, really, rough at that point in time and after the elections 11 Southern states attempted to secede.

So, there was polarization all over the place. We’ve had polarization many times. Not always did it end in states trying to leave. There were threatened attempts to try to leave, but we’ve certainly been polarized. Now, as to whether this is going to lead to violence or not, it’s interesting that polling I saw just a few days ago you have a very high percentage of Americans that think within the next five years we will have a literal Civil War.

So, either Americans don’t know their history and they think this is a first that we’ve never had before and so they don’t know how to respond except saying, “War is coming.” I don’t think we’ll have civil war, but certainly a high percentage do.

Antifa Is Just One Example

Tim:

Well, you do see the polarization in America that people are already calling for violence. You see some saying, “Hey, if people don’t agree with our tolerant positions then be intolerant of their positions. And it’s okay to use violence against them.” You are– Antifa is just one example. You already see groups that are using violence and promoting this, so even the idea of civil war, well, we already right now are kind of in a civil war of ideas, but it hasn’t led to the violence. But there are groups already calling for violence.

So, it’s not farfetched to think that it could get messy, but certainly, that’s not where the majority of Americans want to go. Which is where some very outspoken polarized people want it to go.

David:

Yeah, if you look at the civil war aspect most Americans do not want it to go there at all. But most Americans also think it’s going to happen. But as to whether this is going to lead past a polarization of opinions who knows. Rasmussen has a poll that says 31 percent of Americans think that it’s likely that in the next five years we will have civil war in America. 11 percent think it’s very likely. So, that’s a sizable percentage of Americans – nearly one third think we’re on the verge of a civil war. Now–

Rick:

How much of that do you think is because they don’t know history? They don’t realize– maybe they have this skewed view that in the past we all held hands, and sang Kumbaya, and everybody agreed on everything ever since the beginning of 1776 and they don’t realize there’s always been opposition and factions.

David:

Yeah, I think that’s part of it is they don’t know enough about American history to see that we have had a lot of conflict of ideas a number of times, really serious conflicts over all sorts of issues. And we can go through a litany of issues where there’s huge polarization that polarizes nation, but it doesn’t lead to civil war except in one occasion. So– but nonetheless, there is polarization out there and always has been. Now–

What’s the Major Difference?

Rick:

But what do you guys think– what’s the difference between when you have that opposition and that polarization and it somehow resolves itself and the country stays together, or even comes together, versus actually leading to armed conflict? What’s the major difference?

David:

I think the major difference is in previous generations we had a general moral sense where there was a moral consensus. And the moral consensus was you don’t go out and kill people, period – even if you think they are wrong. Now, we did have a civil war where we killed people and both sides justified that. But by and large we didn’t pick up guns every time we had a disagreement and we didn’t try to go slap people down. And, yes, you do have violence like the caning of Senator Sumner on the floor of the U.S. Senate, and you had a caning over in the House where there was fights, but that’s been the exception, not the rule.

We’ve talked about before that if America ever really fell apart we would have a different culture because we have raised generations of folks who think the truth is individually determined. As opposed– you look back to the Depression when there were such high unemployment there wasn’t high crime except with organized crime like in Chicago and mafia because people had a sense of the Ten Commandments, a sense of right and wrong, and good Samaritan, Golden Rule, and, man, we don’t see–

Here’s a great example of golden rule seeing that Democrat Congresswoman recently saying, “Wherever you see a Trump supporter or Trump official you need to go confront them publicly.” Okay, so, if that’s what you think should happen to others that tells me that’s what you want to happen to you. Because the golden rule says you want to treat others the way you want to be treated. But I know that’s not what she wants. If somebody were to confront her in the same way she’s telling others to confront Trump people she would not like it, she would not appreciate it, she’d probably cry all sorts of foul.

What Makes This Different From Previous Situations

David:

So, even the concept of you want to treat others the way you want to be treated. We don’t even think about that anymore. And that’s what makes this a little different from previous situations.

Rick:

That lack of value–

David:

That’s right.

Rick:

–a common value system.

David:

We do not have that moral consensus based on biblical values.

Rick:

Well, it sounds like we need both to get back to that value system and to find a way to come together. You’ve got to have that civil discourse and actual discussion about these things – not just shouting each other down. That’s what will prevent it. But that’s also what will convince people and win people back over to that value system.

Rick:

Guys, quick break. We’ll come back and finish up Christi’s question. The last part of her question had to do with the Supreme Court nominees, and how long does that usually take, and what was the fastest one ever, and who was the person that was nominated. We’ll be right back. You’re listening to WallBuilders Live.

Outro:

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.”

Moment From American History.

This is Tim Barton from WallBuilders with another moment from American history. American Patriot Paul Revere road to alert Americans of the impending arrival of the British. But he also sought patriot leader Samuel Adams and John Hancock to warn them that the British were seeking their execution.

Adams and Hancock were staying with the Reverend Jonas Clark in Lexington. When they asked Pastor Clark if his church was ready for the approaching British he replied, “I’ve trained them for this very hour. They will fight and, if need be, die under the shadow of the house of God.”

Later that morning 70 men from his church, and several hundred British in the first battle of the War for Independence. As Pastor Clark affirmed, “The militia that morning were the same who filled the pews of the church meeting house on the Sunday morning before.”

The American church was regularly at the forefront of the fight for liberty. For more information on this pastor and other Colonial Patriots go to WallBuilders.com.

Intro:

Thomas Jefferson said, “The constitutions of most of our states, and of the United States, assert that all power is inherent in the people that they may exercise it by themselves that it 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! Thanks for staying with us here on WallBuilders Live Foundations of Freedom Thursday today. First question came from Christie, had to do with the division in the country and then specifically her last question, guys, was about who the Supreme Court justice was that was– who nominated them and who was the justice that was the fastest one to be confirmed.

David:

Well, let’s take confirmations for a minute. And let me point out that where we are right now, the belief is and what the Senate is saying is we will be able to get justice Kavanaugh confirmed within 66 days. And that’s fairly rapid for the modern era to have 66 days. But I’ll point out that’s the modern era.

John Quincy Adams’ Confirmation

David:

Let me take you back to someone like John Quincy Adams. John Quincy Adams was nominated by President James Madison to the U.S. Supreme Court, and he was confirmed to the U.S. Supreme Court, and he never had a hearing and never attended a hearing. He actually was in Europe at the time he was nominated and confirmed. He was ending the war of 1812.

Rick:

So, no grilling on national television, no media gaggle there.

David:

No, CNN was there to cover the confirmation. Oh, wait a minute, no, that wasn’t quite right. No, there was nothing, there was not even a confirmation hearing per se. There was the Advice and Consent clause, but that does not require confirmation hearing. That just requires that the senator say, “Yeah, we think he’s competent and can be on the court.

So, when you– let’s go back to George Washington. George Washington starts out by having a law from Congress whereby he can appoint one chief justice and five associate justices. So, the original Supreme Court, let’s start with six justices. How long did it take him to get those six justices on the Supreme Court?

Tim:

Well, who’s going to argue with George Washington? So–

David:

Right.

Tim:

–you would think that would go pretty fast.

David:

It went fast.

Rick:

Yeah, I would think even just a few– a month or so just in terms of time though, right?  Just in terms of processing it even if nobody really opposed.

Record Time

David:

No, it actually was average two days for each guy – two days to get on the court. Now, some of those guys left the judiciary while Washington was still present, so he had an opportunity to appoint four more justices. And they actually went faster it only took a day to get them on the court.

Rick:

Wow.

David:

So, you have that. Now, when you get to John Adams, that’s when we really have a lot of political polarization. The Adams and Jefferson fight is going on and it took him seven days to get one justice and six days to get another justice. So, we’re talking a full week to be able to– we have justices who have been appointed to the Supreme Court and serving on the court the same day – on the same day.

Rick:

Wow.

David:

So, we have a number of judges who have been there. It is zero days between the appointment and the actual serving.

Tim:

Well, let me point out too that’s interesting that there was turnover between George Washington and John Adams on the U.S. Supreme Court. They apparently did not get the memo they had lifetime appointments, they didn’t need to leave. Where were they going?!

David:

Yeah, if they had read the Constitution they swore to uphold they would have seen that they have lifetime appointments.

They Understood Their Role

Tim:

That’s what we’re told today. So, even the idea that these judges not only were appointed quickly, they understood even the role of what they were doing, it was not supposed to be something that they are a lifetime appointment. They go, they serve a couple of years, and then they’re on home doing their own business back in their own state whatever it is. That’s very interesting.

David:

It is very interesting to see how fast this stuff moved. And–

Rick:

And, David, I’m sorry to interrupt you, but would part of that also be that in that era where they actually understood the Constitution, as Tim’s explaining in a facetious way,  they knew what it said and they knew what the role of the court was going to be. So, really, it wasn’t that big of a deal, right? A Supreme Court nomination, that’s not national– everybody’s not going to get all up in arms because they’re involved in so little and they have no real power according to Alexander Hamilton, and according to the Federalist Papers, and according to the founding fathers. So, why would it take two months, three months, four months, to have a knock down drag out if it’s really not that important of an appointment?

David:

Well, if you’ll remember the original Chief Justice is the guy who was an author of The Federalist Paper, John Jay. And when he was asked to continue serving as Chief Justice U.S. Supreme Court he said, “No thanks, it’s never going to amount to anything. The courts not that big a deal.” So, he left as Chief Justice of the Supreme Court because the court only met for about six weeks every year – not the nine months we have right now, but six weeks every year.

So, it really was not a big deal because under the Constitution there’s only certain things the court was allowed to deal with. Nobody got a lifetime appointment under the Constitution to the courts. It was not there. So, they understood. And when you look at it it, it just wasn’t that big a deal.

Now, a lot of this started trying to change. You may recall that Franklin Roosevelt had this court packing scheme. He wasn’t getting the decisions he wanted from the judges, so he’ll just had enough judges to the court to where he gets a majority. So, instead of having six or seven judges I’m going to make it 13. And that way I’ll get to appoint all the new guys and I’ll have a majority. But that did not happen.

More of a Newer Generation Kind of Thing

David:

But even with the traditional court, not the court packing, but the traditional court, you have, for example, at the time of Franklin Roosevelt one of his nominees it took him five days to get on the court and another nominee was on the court the same day he nominated him. So, we’re still talking in the World War II generation that we don’t have this concept of courts like we do now, or the concept of confirmation hearings, or these long drawn out battles. That’s more of a newer generation kind of thing.

So, literally with FDR you have this thing where it was not taking all that long. Now, granted, some of his nominees did take a long time. One of them actually took 28 days if you can imagine. Well, I say that facetiously because they’re saying that 66 days for Kavanaugh is going to be really fast. But nonetheless, the longest that Roosevelt had was 28 days.

So, as you move forward under President Dwight Eisenhower, one of them took 108 days, one of them took 64, one took 65 days. So, it looks like we’re kind of where President Eisenhower was. By the time you get to President Lyndon Johnson, one of his nominees took 78 days. All the justices under President Nixon, four of them, they went in pretty quick. The same with President Ford. As you move to President Ronald Reagan the fastest he had was 33 days, and then a 65 day, and then 85 days, and 89 days.

So, when we’re talking 66 days is being fast, that’s kind of what it’s been in the modern generation. There’s been some shorter than that, some longer than that, but it really does kind of change after FDR as far as starting to take a lot more time and starting to become, if you will, a lot more politicized.

Post World War II Norm

Rick:

So, if they can get it done in 60 to 90 days that’s a pretty well normal. That’s acceptable, I should say.

David:

Yeah, that’s the new norm. That’s the post World War II norm.

Rick:

Yeah.

David:

Prior to that it was just not long at all to get someone confirmed. And, again, sometimes on the same day they were nominated they were confirmed.

Rick:

Well good questions from Christi out of Missouri. We’re going to take a quick break. When we come back we’ll get to more of your questions. Send them into [email protected]. We’ll be right back on WallBuilders Live.

Outro:

President Calvin Coolidge said, “The more I study 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.”

Pastors Only Briefing Trip

Tim:

Hi, this is Tim Barton with WallBuilders and I want to encourage all the pastors out there with a unique opportunity that we’re presenting it WallBuilders. We’re doing a special tour just for pastors that you can come and learn more about the spiritual heritage of our nation. Not just seeing the sights but understanding the significance of what they are and what they represent.

We get to go to the Capitol at night.  And we get to see the spiritual heritage of our Founding Fathers, of who we are as a nation, where we came from. We bring in congressman that will tell you about current legislation, about our religious liberties  and freedom, and what’s going on in Washington, D.C.

If you’re a pastor or if you want to recommend your pastor for this trip, you can go to our website at www.WallBuilders.com. And there’s a link that’s for scheduling.  If you click on that link there’s a section for pastor’s briefing. There’s more information about the dates, when it’s going, and how it’s going to happen. If you want to know more about our nation, our religious liberties, our freedom, our spiritual heritage, this is a trip you want to be a part of.

Intro:

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

The Role of Congress and the Courts

Rick:

We’re back on WallBuilders. Thanks for staying with us on this Foundations of Freedom Thursday. Next question. Also, David, Tim, this has to do with the courts as well. In fact, goes back into the Federalist Papers.

It says, “In Article 3, Section 2 of the Constitution, it says, ‘The judiciary, or the judicial, shall extend all cases’. However, the Federalist Papers seem to contradict this in Federalist 78, which is one of Hamilton’s, because it says, ‘Congress is the body that determines what issues may come before the courts’. I’m having difficulty coming to terms with whether the courts could hear all cases or some cases. Could you all give some clarity on this for me? I’d greatly appreciate it.

So, a good question. Actually, David, you answer this in Constitutional Alive as well. So, I want to encourage people to get that at WallBuilders.com today and dive into the entire Constitution course. But you really bring to light some of the things that have been lost on this generation in terms of the role of Congress when it comes to the courts.

David:

The Constitution itself really answers that question in Article 3, Section 2. It says what issues can come before the court. So, let me read what it says. Article 3, Section 2, Paragraph 1 says, “The judicial power–” so, here’s what courts can hear, “The judicial power shall extend to all cases in law on equity arising under this Constitution, under the laws of the United States, and under treaties made or which shall be made under their authority.” So, there’s the answer to the question. What can the courts look at? Anything that comes up under the Constitution, anything that comes up in law and equity, anything that comes up under the laws of the United States, or the treaties made.

Getting to the Specifics

David:

That sounds like a pretty broad deal. And then it keeps going and it gets specific. It says, “To all cases affecting ambassadors and other public ministers and councils. To all cases of admiralty and maritime jurisdiction. The controversies to which the United States shall be a party, the controversies between two or more states, between citizens of one state and another, between citizens of different states, between citizens of the same state claiming lands under grants of different states, between the state and the–” it just keeps going. So, it looks like the federal courts get a lot of latitude and jurisdiction.

Here’s where you come back with the key clause. This is paragraph 2 of section 2, so Article 3, Section 2, Paragraph 2. It says, “Now, in all cases affecting ambassadors, and other public ministers and counsels, and those in which the state shall be a party–” and that’s part of the group we just went through. But it says, “In these three areas the Supreme Court shall have original jurisdiction.”

So, in those– if something comes up in those three areas, that is if foreign nations, ambassadors, public ministers and counsels, or those to what’s a state shall be a part of, the United States vs. Texas, United States vs. North Dakota. Those can go straight to the United States, they don’t have to stop at a district court or a court of appeals, they go straight to the United States Supreme Court. Listen to the rest of it. It says, now in those three, it says, “And all other cases before mentioned–” which is all the ones under the federal law and everything else– it says, “The Supreme Court shall have appellate jurisdiction both as law and fact. With such exceptions and under such regulations as the Congress shall make.”

So, only three things go straight to the Supreme Court. Everything can be looked at by the Supreme Court. But if Congress says, “You know what? We’re passing a law that says the Supreme Court cannot look at any abortion case”, it can’t look at an abortion case because that’s not one of the three issues that go straight to the Supreme Court. There’s only three issues that the federal Congress cannot take away from the Supreme Court. Anything else they can pass a law and take away, over 200 occasions.

The Exceptions Clause

David:

And by the way, the part I just read is called the Exceptions Clause. Here’s your exception, you get a contract, and here’s the exceptions and disclaimers. What it means is Congress can pass a law that excepts something or takes it away from the court. So, over 200 times Congress has passed a law that says, “Supreme Court, federal courts, none of you can look at this issue, end the story. That’s it.”

So, the deal with Federalist 78 is the Constitution actually gives the courts the right to look at all sorts of stuff, but it gives Congress the right to say, “Courts, you can’t look at that unless it’s one of these three.” So, that’s really kind of the answer to the question. And in both aspects, the Constitution and Federalist 78, they both have expansive and they both have limited, but they both actually say the same thing. One is just talking about the exceptions where the other’s talking about the full scope of what you can start with.

Rick:

And that of course, David, as we talk about Constitution Alive is something the court and the Supreme Court itself has recognized and talked about those exceptions and absolutely acknowledged that Congress has the power to remove items or to give items. And unfortunately it’s just been a long time since that’s been taught in our law schools and in our education system. So, most people don’t realize Congress has a voice in how the judiciary operates. We need to get that–

David:

I would disagree – I would say Congress has the voice–

Rick:

Yeah, yeah.

David:

–not “a voice”. They are the voice. They are the one body that can tell the Supreme Court, “You can’t touch this. Back away.”

The Accountability the Founders Thought Would Work

Rick:

And that’s the accountability that the founders thought would work since they’re not accountable directly to the people, that they would be accountable to the Congress. But, man, we just, without that accountability, that’s how you end up with a runaway branch. That’s what we’ve got right now. Let’s face it – we’ve got nine unelected, unaccountable, lawyers in Washington D.C. making law for 330 million people. That is not the design of the founding fathers, it’s not how these foundations of freedom were designed to work. We can restore them, but it’s going to take education on our part, and teaching our friends, and our family, our co-workers, all the people around us.

And you can be a part of doing that. Part of what we’re asking you to do is spread the word about WallBuilders Live. Get people in that Constitution Alive course, get them in our television course on Foundations of Freedom, get them listening to these Thursday programs, go use your social media. Share through Facebook, and Twitter, and all the different social media tools that you have. And then help us add stations, and do more leadership training, and young people training, by becoming a partner of WallBuilders Live right there at our website.

Supreme Court Nominees, Foundations of Freedom Thursday

Rick:

Go to WallBuilders.com today. You can make a one time contribution or a monthly donation that basically makes you a partner in what we’re doing. You come alongside us and you help us spread this good news and restore America’s Constitution. Thanks so much for joining us on this Foundations of Freedom Thursday. You’ve been listening to WallBuilders Live.

Outro:

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