Bible And The Judiciary “€“ Foundations Of Freedom With Carol Swain: How does the Bible intertwine with the Judiciary? Tune in now to hear David Barton and Carl Swain’s answer.

Air Date: 11/15/2019

Guest: Carol Swain

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


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

Faith And The Culture


Welcome to the intersection of faith and the culture. This is warblers builders live talking about the hottest topics on policy faith and the culture from a biblical, historical, and constitutional perspective.

This week is a special series for you from Foundations of Freedom, that’s our television program. We’ve had some special guests this week, Glenn Beck, Congresswoman Michele Bachmann, and Dr. Carol Swain. Today we’re going to pick up the final episode from Dr. Carol Swain. We’re going to pick up right where we left off yesterday. It’s called The Bible and the Judiciary, so let’s pick up right where we left off yesterday.

Dr. Swain:

We want juries where there are citizens that are passionate, and those that know the Lord. That can pray about a case, and use the wisdom of the Holy Spirit, and be gathered by that. Of course they listen to the evidence that’s put forth, and the instructions from the judge, but at the end of the day, you’re also gonna pray and hope that the Holy Spirit gives you wisdom to make a good decision. And in the end, someone’s life may depend on your being able to do the thing that you’re called to do.


I love the fact that you brought the Lord into this, about praying and hearing from the Lord, because that leads directly into our next question. Let’s look at our second question here.


So, to me it seemed like so many wrong decisions come down from the courts nowadays. Many of these decisions just defy common sense. What’s wrong with these judges? 

A Judge for the Lord


That belief is that the judiciary is out of kilter is a common belief. We now have three fourths of Americans, by polling, that say that they do not believe that judges follow the law or the Constitution. 

They don’t. 

They impose their own agenda. The problem is that judges themselves have left God out of the picture, because when you go back in the Bible, there are so many explicit directives to judges. Let me just read one out of Second Chronicles 19:6-7. 

“€œConsider what you’re doing. You do not judge for man, but for the Lord, who is with you when you render judgment. Now then let the fear of the Lord be upon you. Be very careful what you do.”€

Dr. Swain:

There’s so many people today that are educated at institutions where they come out as secular humanists, and so there’s no fear of God. And then they see it as a way to advance a political agenda, and that’s very dangerous for our nation and the people. We have to find a way to gain some control and to shift the balance back to the way the framers of the Constitution intended. The power was supposed to be with the people. 


When judges forget that they render judgment for God, who is a God of justice, then you no longer get justice in courts, and courts become a political arm rather than a justice arm. They’re supposed to be about justice. 

It’s interesting, the Bible has so many passages directed at judges. 

Psalms 2:10-12 Isaiah 1:26 and you have Ezra 7:25, and for Christians today to say, “€œWell, judiciary, that’s secular stuff.”€Â 

Better to be Active in the Judiciary than the Legislation

No. The Bible addresses that, but we’ve got to get people to come in through the judicial system. If judges won’t be the God fearing people, then we’re going to have jurors that are God fearing people, as you said, they’ll sit there, and they’ll pray, they’ll listen to what the Lord says. Keeping ourselves out of the judiciary is a bad deal. I’ve got a great quote from Thomas Jefferson. 

He says, “€œIf I called upon to decide whether the people had best be admitted in the legislative or the judiciary department, I would say it’s better to leave of the legislative.”€

“€œIf you ask me, it’s better to keep the people out of the elected legislator than out of the judiciary.”€Â 

He pointed out that these guys make the laws, but these are the guys who interpret the law. Since it”€™s more important they interpret them, and that’s where you want the people involved. 

So when we get involved in juries, we’re over on the side of unelected judges, and we can be a check and balance on them. 

Christians Must get Involved

Biblically, for Christians to think, “€œI don’t want to be involved in a bad deal,”€ when you look at Joshua, or Numbers, or other books, the Bible makes it very clear that cases were to be decided before the people, not before judges, but before the people. And that’s what a jury does. So we need to be actively engaged in looking for opportunities to be involved in the judiciary, and the jury is one of those ways we do that.

Dr. Swain:

I agree with you so much. We always tell voters to go out and vote, but there are other ways to serve, and serving on juries is one way to serve. Paying attention to who’s running for the attorney general, that’s right spot in your state. That’s another way. In some states judges are elected. You need to know who those people are and how they live their lives, because it matters what they do.

America’s Hidden History


Hi, this is David Barton.


And, this is Tim Barton, and we want to let you know about a series that’s happening right now on TBN on Thursday night. TBN is the Trinity Broadcasting Network. Every Thursday night, there’s a series that we’ve filmed called America’s Hidden History.

And, this season is called “€œAmerica’s Hidden Heroes.”€ The reason is, we highlight heroes from American history. For years we’ve been focusing on the forgotten history and heros 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 to the sites and show you where the events happened. It’s the stories of folks like Bronco Charlie, Stagecoach Mary, Jedediah Smith, Robert Smalls, and so many inspiring folks.


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

Using the Court to Get Around the Voters

Dr. Swain:

We have judicial activism to fear, because a lot of the liberal decisions that have been ungodly have come from people that have gone into the judiciary as a way to push a very liberal agenda that’s contrary to the voters. 


We’ve been involved in a number of lawsuits, and in several cases at the Supreme Court, and one of the guys, an atheist, got involved in the case and said, “€œThe reason I took this to court was I knew I couldn’t win with the people. If it gets voted on, I lose. So I went to the courts because I knew they could do what I wanted.”€Â 

That’s not the purpose, but that’s the way it’s becomes a political arm. To go into something you said a minute ago, some states elect their judges. In Texas elects judges, a number of states do. If you’re in a state that doesn’t elect judges, then there are movements right now starting in a lot of states to make judges accountable. You need to get involved with your legislators and say, “€œWe want elected judges in our state.”€Â 

Back in earlier parts of America, where you had God fearing judges, you’re more likely to get justice. But when you don’t have God fearing judges, when judiciary becomes secular, it becomes a political arm. Now we’re back to what Europe was. We’re back to doing the things that Europe did three or four hundred years ago where the courts were not for justice, they were to enforce an agenda from the King, or from the Parliament, or from someone else. So if you have the opportunity in your state, work with your legislator to say, “€œWe want elected judges in our state.”€

The Tennessee Plan

Dr. Swain:

Tennessee, my state, is a state where the Constitution says that judges are to be elected, but since 1970 the governor and the bar association has appointed justices. So that’s something that will have to be dealt with. We have to have a constitutional amendment process to force the government to do what it’s supposed to be doing. As a consequence, we have one of the most liberal abortion laws in the Southeast.


It’s interesting, Tennessee, because I testified at the legislature on judicial changes, they are trying to get back, but there was what was called the Missouri Plan, and they modified it is now called the Tennessee plan.

So bar associations are trying to take the Tennessee plan to other states and convince them, “€œYou need to do the Tennessee plan.”€Â 

No, you don’t.

Dr. Swain:

Well the Tennessee plan is unconstitutional. 


But they don’t care about that. It’s an agenda. And that has to change, because this is another thing that’s happened historically in America, we started out with what were called Courts of Justice. Then, in the late eighteen hundreds, that became Courts of Law. Today they’re just called courts. 

If you go back to courts of justice, the interesting thing with the way the Constitution is written, Juries were to decide both the law and the fact, which meant a jury could strike down a law. Today we say only judges can. Juries can strike down laws and the American founding, the Founding Fathers did not set up courts of appeals in the federal system. The jurors were that. They were the courts of appeal, when the people spoke on the juries.

Dr. Swain:

People were truly sovereign, the way that it was intended. 

Court of Justice


The way it would have worked is, if you take the story of Daniel in the Bible, how that they passed a law that said, “€œNobody can pray.”€Â 

Daniel prayed, and so they said, “€œThrow him in the Lion’s Den.”€Â 

Had that been an American court at the American founding, they would abroad Daniel in the court, said the law says, “€œDaniel can’t pray. He prayed. He needs to be thrown out.”€

And the American jury would have said, “€œYou’ve got a law that says you can’t pray? That’s a bad law. Daniel is free right.”€Â 

They never would have put him in the Lion’s Den, because the jury would have struck down the law. 

So we had that in the same way. William Penn is a great example, because his father was an admiral in Great Britain. So William Penn is a son of a famous Admiral, and the Admiral helped finance Charles II in what he did in his wars. British law says you have to go to the Anglican Church.

William Penn got tied up with the Quakers and said, “€œI’m going to the Quaker church.”€Â 

So if he”€™s going to the Quaker Church, he is brought before the courts of great Britain and the judge comes out and says, “€œThe law says you have to go to an Anglican church. We need to convict him.”€Â 

So the judge told the jury, “€œHere’s the law. Convict William Penn because he’s going to a Quaker Church.”€Â 

The jury stood up and said, “€œIt’s a bad law that tells you what church to go to.”€Â 

We the People

They refused to convict William Penn. The judge then put all the jurors in jail and denied them food and water until they changed their opinion, and the jurors would not change their opinion. So the judge eventually relented. William Penn goes free because the people got involved in the judiciary and stood up for justice.

Dr. Swain:

Why can we get people to do that today in America? I think we can, we can stand up and be The People. Don’t be passive. Don’t sit on the sidelines.


Don’t say, “€œI don’t want to get involved.”€Â 

I think it empowers people to know what they can do. This thing about judging the law and the fact is so significant.

Dr. Swain:

One thing I want to say is that a lot of people may think, “€œI don’t have the education. I’m not smart enough, I don’t know the law.”€

A lot of this is just common sense. You don’t have to be a lawyer or someone with a college degree, you just have to be a person that can evaluate evidence, and you have an opinion, and your opinion is just as important as someone else’s.


That’s where you want common folks to get in and say, “€œWait a minute. That’s dumb.”€ You don’t need a bunch of professionals and experts, you want commonsense people to say, “€œThat’s crazy.”€Â 

Another good example is, when you go back to 1850, Congress passed a law called the Fugitive Slave Law.That was a really bad law passed by Congress. 

It’s interesting, it’s really different today. 

The Duties that Men Owe to God and Government

You pass a law today, churches are going to be silent, but not back then. These are all sermons preached in the Fugitive Slave Law. Here’s a sermon, The Duties that Men Owe to God and to Government. 

These are all sermons that came on the Fugitive Slave Law because of pulpit stood up and said, “€œThis is wrong! This is not good!”€Â 

The problem of the Fugitive Slave Law was pretty simple. The history of slavery in America, slavery introduced in 1619 up through Virginia most of the Northern colonies opposed slavery, Southern colonies favored it. But in 1794, Congress banned the exportation of slaves out of America, and in 1808 they banned the importation of slaves.

Dr. Swain:

And you know what was interesting in the Constitution they never mentioned slaves because they knew that it was wrong to transport human beings. They didn’t want it in their constitution.


That was one of the things that the Constitution Convention talked about. They didn’t want the Constitution tarnished with the word slavery, and it was really funny, because at the convention you had folks like Luther Martin that we talked about earlier. Luther Martin, and Gouverneur Morris, and these other guys that said, “€œYou guys down South say that slaves are property, and that Three Fifths Clause—“€Â 

The Three Fifths Clause was so much fun because the Southerners wanted to count every slave as a full person, and so did the North, but the problem with the North they said, “€œWait a minute, you can’t count slaves as a voter because they can’t vote.”€Â 

Now, in the free North, that’s fine. If you want to count slaves, you free the slaves, then you can count them. 

In the South, that gives incentive.

The Three Fifths Clause

Dr. Swain:

You know something? Often I hear people say that blacks were not candidates for human beings. And they really have it wrong. The South wanted to count them, but they just didn’t want to give them the right to vote. So that three fifths compromise was something that would prevent the South from having more representation than they deserve. 


That”€™s right. It is an anti slavery provision.

Frederick Douglass talked about that when he gave speeches. He praised the three fifths clause as being an anti-slave, because that was it. The Northern guys said, “€œNo way we’re not gonna let you count them unless you let them vote. 

So the South said, “€œNo, we’re not doing that.”€Â 

So it was really funny in the Constitutional Convention, as they had the debate, Gouverneur Morris and Luther Martin said, “€œWell, you guys down South claimed the slaves are property, so we in the North are going to count our horses, our chairs, and our tables, and for every thirty thousand we’re going to get another member of Congress.”€Â 

“€œNo, you can’t do that.”€Â 

And so it went back, and that’s where they finally said, “€œI will only let you count three fifths of the slave population, because that reduces your Southern representation by nearly half.”€Â 

And you’re exactly right, it was an anti slavery clause.

Dr. Swain:

This other thing is back then it was one representative per thirty thousand persons. Today, what, one member of Congress represents maybe seven hundred/eight thousand? So it was a totally different system. It would have had serious implications for political power. Had the South been able to count their slaves as full persons.

An Incentive to End Slavery


The Northern guys said, “€œThis is an incentive for you to end slavery. If you want more representation in Congress, you end slavery and you get a whole lot more representation.”€

And people today don’t see that. As a political scientist, you know that is remarkable, because most political scientists don’t even know that now.

Dr. Swain:

A lot of the political scientists know it as far as the race, but when you say, “€œThat’s a good point,”€ a lot of people will use that to say how bad the U.S. has been as a nation, to watch blacks like they didn”€™t count them as whole persons. It’s not about racism when it wasn’t about racism.


That’s exactly right. So you have the South that has limited their ability to bring slaves in, and they don’t have as many slaves as they want, and so the Fugitive Slave Law allows them to go North to blacks who have been free their whole life, and they can point at anybody and say, “€œHey, you’re my escaped slave!”€ and under the Fugitive Slave Law, several things happen. 

If I accuse someone of being my escaped slave, at that point they’re denied habeas corpus, they’re denied trial by jury. They did not get the right to representation of an attorney, and the federal law said that, in court, you go before a federal magistrate to determine whether that black is a fugitive slave or not. 

The federal law says, “€œIf the federal magistrate says that’s a fugitive slave, he gets paid ten dollars. If he says it’s not a fugitive slave, he gets paid five dollars.”€Â 

From Justice to Law

So a lot of the Northern states, Vermont, Massachusetts, and others, pass state laws that said, “€œIf there is going to be a fugitive slave, it’s gonna be a trial by jury.”€Â 

And what happened up North was jury after jury after jury after jury said, “€œNo, not a fugitive slave.”€

That’s common sense of the people, right?

 And that’s why you’ve got to have juries, because as Jefferson said, “€œThe courts can take away your property, your life, and your reputation. That’s where a jury can come in and save it.”€Â 

Then we had a problem in the about the 1870s and 80s were that you had a lot of juries using common sense who ruled against the mega corporations of the day. They’re the ones who give the big bucks to politicians. So the railroad companies, and all the guys who are the land barons, they go to Congress and say, “€œYou”€™ve got to shut these juries down. They’re killing us. They’re taking our money.”€Â 

It was justice, but the barons didn’t like justice. They wanted to be rich, and not that rich is a problem, it’s just the way they got rich.

So Congress then starts putting limits, and you have an 1895 decision by the U.S. Supreme Court, which is called the United States versus Spa, and the Supreme Court said, “€œWe need to do things a little different. Here’s what we’re gonna do: instead of jurors deciding the law and fact, we don’t want juries to decide the law anymore. We’re judges, we”€™ll decide the law. You jurors can decide the fact, but we”€™ll decide the law.”€Â 

From Law to Court

Well, the jurors used to be the one that had the law and the facts. So at that point in time, where Congress did that, Congress also came up with the Federal Court of Appeals system, and instead of the people being the final word, we’re now going to have judges tell other judges what they do and what they can’t do. 

The Federal Court of Appeals were not birthed back in the Constitution, back with the Founding Fathers, because we had juries. Well, now that we’ve taken juries out of that, now we come up with the Federal Court of Appeals system, and now the judges are in charge of the law instead of the people being in charge of the law. So that’s where we went from being Courts of Justice to Courts of Law, and that’s not the same thing as justice, that’s what we saw with the Fugitive Slave Law and so many other examples.

Then what changed in the 1950s to just become courts, and if you look up the definition of a court today, this is a place to settle a dispute. 

Now wait a minute.

“€œWe have a dispute over marriage? I’m a judge. I’ll settle that. This is what you’re going to do with marriage.”€Â 

Wait a minute, we have justice on this side, we have God’s definition on this side. “€œDoesn’t matter. I’m a judge. I’m ending this right here.”€Â 

No longer is it about law, because we regularly have judges strike down laws that were enacted by legislatures. 

By the way, the Founding Fathers would have gone through the roof over this.

Pastors Only Briefing Trip


Pastors Only Briefing Trip


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 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.

Judges were Not Meant to Have Final Say


When you look at the first 13 judges that the Founding Fathers impeached, they took judges off the Court for overturning the law of Congress.

Judges could give their opinion, and it’s always called the opinion of the court, and if they said, “€œThat’s an unconstitutional law,”€ Congress would go, “€œWe hadn’t thought about it. Good idea!”€Â 

They would change the law, but they never got the final word.

And so for judges, who are unelected, to have the final word, that’s anathema to everything. 

Dr. Swain:

It just seems like everything is upside down, because the executive branch, they should have been the weakest branch with the judiciary, but they’ve become so much stronger than the legislative. And that is not what the Founders intended, and it’s not in the interests of We the People.

If you look at America, this is a country where the overwhelming majority of people profess to be Christians, and as Christians, they have a guidebook, which is the Bible. We’ve totally moved in a direction that’s ungodly. The Bible means nothing to many of our leaders, the ones that are making the most important decisions that are affecting our lives. 


Christians have to get reconnected to the Bible, and with the Bibles, and the Constitution, and the Declaration.

Dr. Swain:

I think that everyone should read the Declaration of Independence. They should read the Constitution, they should study the Bill of Rights. They need to know all of these things, and they need to hold politicians accountable and do some cleaning in the House of Congress. 


If they’ll read the Constitution, one of the things that stands out is the absolute shortest article in the Constitution, of all the three branches, is the Judiciary. 

The Judiciary is Supposed to be the Weakest Branch of the Government

You look at what they’re allowed to do, and it ain’t much. Judges aren’t supposed to be doing much at all. You look at what they’re doing today… but it’s because most people don’t know that document, and they are not being The People. 

We the People have to be the people and say, “€œYou guys took an oath to uphold the Constitution, and this is what it says you can do, and that’s not what you’re doing. Time to get you out and get somebody else in.”€

Dr. Swain:

We have love of country, love of God, all of this is important, and it’s part of love of family. If you don’t stand up for the Constitution, if you don’t know your faith principles, then you’re not going to be able to protect your family. 


That’s right. And that is a key, and that’s what government’s supposed to be doing. We’ve got to get back to reading and knowing those documents. And by the way, if you read the Bible, the Bible is really clear in First Corinthians 6. 

“€œChristians, wake up! Don’t you know you’re going to judge the world?”€

Then why are we running from judicial processes? You have to know what a judge is supposed to do and how the judiciary operates, because we’re going to be the judges of the world. 

And to say, “€œI don’t want to get involved.”€

Sorry. You’ve already been assigned that task. If you’re going to be a judge, start learning how to be a judge. You need to get involved in judicial process.

So, action items that we can do—that folks need to do. 

Number one, do not run from jury service. 

Get Involved

If you had a chance to be involved in judiciary, you get involved in judiciary. If you haven’t registered to vote because you don’t like jury service, go register vote, but get on that jury role, because we need good people there. You want to fill that spot so that you can bring justice to people who come before those judges.

So get involved. It may also mean getting involved in judiciary, like make sure the Tennessee Plan doesn’t come to your state. So go to your legislators and say that. 

If you’re in Tennessee, work with your legislators to get constitutional again. Get back to following your constitution. Work with legislators to make sure that we make the judiciary a justice place again. 

And the Constitution does this. I know that document. Get involve judiciary. 

Second thing is get used to judging the law and the facts. 

You said, “€œRead the Constitution.”€Â 

If you read the Constitution, you don’t have to have a law degree to say that’s an unconstitutional law. 

“€œI read the Constitution. You can’t do that. That’s not constitutional.”€Â 

We the People are the ones who are qualified to be the judges, so we need to do that with juries and judiciary, but we need to judge the law and the facts. 

Then the third thing we can do is seek justice. Yes, we used to have courts of justice. Now they’ve become places to settle disputes. 

So don’t say, “€œOh, let’s just end the argument.”€Â 

The Bible and the Judiciary

No, you want to do what’s right. If that makes an argument, so be it. You want justice. God is a God of  justice. He wants us to rule the way He would have ruled.

If you get into a dispute and say, “€œWhich side is God on? God’s on this side? I’ve got to take His side.”€Â 

That’s justice. That’s what you want to say, and that’s what every single citizen can do. It will help rebuild the foundations of freedom. 


Well, we’re out of time folks. That was The Bible and the Judiciary, a Foundations of Freedom program with David Barton and Dr. Carol Swain. This week we had David Barton and Glenn Beck on Real Religion, David Barton and myself on Courageous Church, David and Congresswoman Michele Bachmann on God and Government, and then close it out David and and Dr. Carol Swain on the Bible and the Judiciary. 

All four of those programs available right now at our website at Hope you’ve enjoyed this special week. You’ve been listening to WallBuilders Live.