Thought Commissions Make Orwell’s 1984 A Reality In Oregon: In this episode, we talk with Mark David Hall, a professor at George Fox University. We discuss how a man is being persecuted for his thoughts. Tune in now to hear how they are trying to get rid of this judge because of his faith, when it would be acceptable to have a litmus test, and how we can stand up for our amendment rights. 

Air Date: 04/25/2017


Guests: Mark David Hall, 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.  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 because of the difficulty in understanding the speaker at times. We apologize in advance.

Welcome

Rick:

You found your way to the intersection of faith and the culture, this is WallBuilders Live! Where we’re talking about these hottest topics on policy, faith, and the culture, always looking at it from Biblical, historical, and constitutional perspective.

Thanks for joining us.  We’re here with David Barton, America’s premiere historian and the founder of WallBuilders. Also, Tim Barton, national speaker, pastor, and president of WallBuilders. And my name’s Rick Green.  I’m a former Texas state rep. Find out more about all of us at WallBuilders.com and our radio website WallBuildersLive.com. Archives there so you can go back several weeks and listen to additional programs. Then at WallBuilders.com, our main website, you can get all kinds of great information and material. So check them both out, WallBuilders.com and WallBuildersLive.com.

Is  The Government Unaccountable To The People

David, Tim, always talking about the basic freedoms of the Constitution. But today we’re going to talk about one that people don’t typically think is happening in America. You read about it or you hear about it in other countries. But the thought police are real.  It’s happening, and it’s happening in some of these agencies and commissions where they’re literally going after people just for what they believe.

David:

Yeah, it’s an interesting thing but it is not unexpected based on what the Founding Fathers told us back in the beginning. Because when they were trying to separate from Great Britain and they put out these list of grievances, the thing that really ticked them off the most was when they had to deal with officials and the British government who are unaccountable to the people.

Part of that started back in 1765, 11 years before the Declaration when Sam Adams said, “These British judges, they keep running over us because they’re not accountable to us.” And it was with any agency.

They talked about in the Declaration, how that he has created all these agencies and sent swarms, as the Declaration said, swarms of officers to eat out our substance, live off us, and they’re not accountable to us. So, bureaucrats, bureaucracies, regulatory agencies, administrative agencies, that drove the Founders crazy because you don’t have any control over them.

The only constitution in the world that is older than the US Constitution that is still alive today is the Massachusetts Constitution 1780. It is written by Sam Adams, John Adams, and John Hancock, and Robert Treat Paine, and all these famous guys signed the Declaration.

In that Declaration of Rights, right up front, it says that the officers of all three branches whether executive, legislative, and judicial, are at all times accountable to the people and are their representatives.

So, I mean, they made it really clear. I don’t care what branch you’re in. I don’t care what agency you’re from. You will always be accountable to us. And now we’re going exactly the opposite direction in America. We’re creating all these regulatory laws and agencies and people who are not elected.

We had the thing with Senator Mike Lee, senator from Utah. He keeps this thing in his office of where every time a law is passed by the House, the Senate, and signed by the president he puts it in one stack. Then, every time a law goes into operation that came to a regulatory agency he put in another stack and last time I talked to him he had four inches in the constitutional stack and had 11 feet in the other stack.

So, most of our laws are being made by people we don’t elect, people who are not accountable to us, people we can’t get rid of.  The civil service act keeps us from doing it. And so now these guys are deciding they are running the country. Now they’ve decided, “If we don’t like what you think, if we can project what we think you might do, we’re going to nail you for it before you even are asked to do it.”

132 Inches Of Unaccountable Administrative

Rick:

Wait, wait, wait. David, I’ve got to stop you, brother. I got to get a visual in my head here. Four inches versus 11 feet? I had to do a little math as you could tell it took me a little while here. But that’s 132 inches, right?

David:

That is 33 times higher.

Rick:

Wow. So the four inches- that’s the stack of Constitution. These are laws that government actually has the authority given by the people to do, and they are accountable by accountable officials.

David:

Yep.

Rick:

11 feet, 132 inches of unaccountable administrative. This is government run amok.

David:

Well, a couple of years ago we had thirty-eight hundred new federal laws added to the books only 127 came through Congress. Thirty-eight hundred and 127 came through Congress.

Tim:

But that really should give Congress a lot more free time to do other things, right? That’s just to help them.

David:

Right.

Rick:

So they go make other laws and create other agencies that are going to make more rules, yeah.

David:

It’s a real problem and right now so many of the attacks on our constitutional freedoms are coming through unelected agencies, administrative agencies, regulatory agencies, bureaucrats, regulators, etc.

Rick:

Definitely out of control. Quick break, we’ll be right back.  Stay with us. You’re listening WallBuilders Live!

Moment From American History

This is Tim Barton from WallBuilders with another moment from American history. Founding Fathers John Adams and Thomas Jefferson originally worked closely together but later became ardent opponents.

This troubled Dr. Benjamin Rush, a signer of the Declaration, who knew both of them very well. In the Bible, 2 Corinthians 5:18 tells us that God has given each of us the ministry of reconciliation. Dr. Rush believed this and set out to bring the two back together.

It took a while, but Adams and Jefferson once again became close friends. Looking back on his role in helping bring about this reconciliation Dr. Rush stated, “It will give me pleasure as long as I live to reflect that I have been in any degree instrumental in effecting this reunion of two souls destined to be dear to each other and motivated with the same dispositions to serve their country, though in different ways.”

For more information about Dr. Benjamin Rush and his other remarkable achievements go to WallBuilders.com.

Coming After Us For Our Thoughts

Rick:

Welcome back, thanks for staying with us here on WallBuilders Live! Later in the program, Mark Hall will be with us. Right now, guys, we’re back to this whole agency thing and it’s happening in all these different levels, state and federal. Too many unaccountable officials.

David:

Well, it’s happening. And you mentioned Oregon, Mark David Hall, a great professor there. We’ve had him on before. Oregon is one of these kinds of goofy places in the nation right now when it comes to constitutional rights.

You have all these human rights commissions and regulatory boards. They tell Erin and Melissa Klein that you’re going to be fined $135,000 because you wouldn’t bake a cake for a homosexual wedding. You think you own your business?  You think you have the right to choose your clients?  You don’t.

Well, there was no elected agency that got him. It was a bureaucratic agency that essentially bankrupted them, tried to take their home and everything they owned. So in Oregon, this nonsense happening.

But it’s not the only place. We see it all over the nation whether it’s Kentucky, whether it’s Washington state, whether it’s Arizona, where you have these regulatory agencies that are coming after them.

But this story happens to be from Oregon where we have a judge and this commission, a judicial commission is going after the judge because they believe that he thinks wrong thoughts about marriage. He hasn’t acted out anything but because they think he thinks the wrong thoughts they’re trying to throw him off the court.

Tim:

So they’re not going after him for anything he did. Just a clarification, right?

David:

Nothing at all for what he did.

Tim:

He hasn’t done anything wrong.

Rick:

But he thought it, Tim. It was in his head so it might come out later. Can’t we be like Tom Cruise was- a Minority Report?

Tim:

Minority Report, yeah that’s right, yeah.

Rick:

Where they stop the crimes just because you thought about doing something.

Tim:

Well, you know, I mean, Jesus said that murder first begins in the heart.

Rick:

Oh no, it is a dangerous road.

Tim:

But I think now we’re talking about something a little different.

Rick:

Yeah, that’s not what Jesus was talking about. That’s for sure. But Mark David Hall has been keeping an eye on this case. He’s actually been an expert court witness in some of these type of cases in Oregon and so he is very familiar with what’s happening with this one.

Rick:

George Fox University professor and a frequent guest here on WallBuilders Live. Stay with us, Mark David Hall our guest on WallBuilders Live.

DVD On Common Core

David:

Hi, friends! This is David Barton of WallBuilders. The current condition of education in America is abysmal. Not only is educational achievement plummeting, but every year, some 19 percent of high school seniors who graduate is completely illiterate. They can’t read at all but it was not always this way.

For generations, we taught students how to think. But after the progressives took over education in the early 20th century, things began to radically change. Education shifted from thinking to learning, which made the emphasis on the teachers rather than the students. And that elevated indoctrination above knowledge.

At that time, progressives also made massive changes in the way we tested students. They extended school from 8 to 12 years. They introduced graded education and they added compulsory education. Statistics prove that these changes have harmed education rather than helped it. And now the progressives are pushing common core.

In our new DVD On Common Core, we give you eight reasons why this current approach is so dangerous to our kids and our culture. We also show you an amazing history of education. So get this new DVD at WallBuilders.com.

Getting Rid Of A Judge Based On His Faith

Rick:

Welcome back, thanks for staying with us here on WallBuilders Live! Mark David Hall back with us from George Fox University. Always good to have you, professor.

Mark:

It’s great to be here.

Rick:

A great article, George Orwell is turning in his grave. For those that haven’t read 1984 that’s a good homework assignment for our listeners out there. But Mark what is going on in Oregon? Talking about getting rid of a judge simply for his thoughts and his beliefs.

Mark:

It is just a kangaroo court for sure. There is a local judge who had been appointed to his position by a Democratic governor, a guy named Vance Day, just a solid person. By all accounts a great judge.

But Oregon commission of judicial fitness and disability has determined that he is unfit for office. They’ve issued a report that has basically eight counts against him. I’m not really capable of speaking to the seven of counts. Although I think there are huge problems with them.

But the one of particular concern to me is that as a matter of religious convictions. He has said that he cannot participate in same-sex wedding ceremonies. So he came up with the plan to avoid that and we can maybe talk about that later. But first, let me just say it is not a requirement of being a judge in Oregon that you participate in same-sex wedding ceremonies. It’s an optional duty that you can choose to do or choose not to do.

If it were a requirement I think the case would be a little more complicated, although, I still think his religious convictions should be protected. But since it’s not a requirement it just should not be an issue.

Rick:

And like you said, he made a way for those that wanted same-sex weddings to occur, they could still go get their ceremony, just not with him. He wouldn’t have to participate in it.

But you mentioned in the article, one of the most troubling things, and even if they are and I didn’t go through the other accounts either. I mean, even if there was something there that the commission hung its hat on by listing one of the basically, “problems” with this guy, is that he’s a Christian with firmly held religious beliefs. Now a future commission on a future case could grab just that one part. And we’ve got a precedent here against this man’s faith. That would be unconstitutional to get rid of a judge based on his faith.

The 1961 Decision Torcaso VS Watkins

Mark:

It sure seems like a religious test for office. Which, of course, is prohibited by the U.S. Constitution, America’s Founders prohibited it. Religious test for office for federal offices. The Oregon Constitution prohibits religious test for state offices. It just to kind of doubled down to a U.S. Supreme Court in Torcaso vs Watkins the 1961 decision declared all remaining state test for religious test for office to be unconstitutional.

So it’s utterly ridiculous. Again, you could read the commission’s report is not exactly holding this as a requirement but it sure seems as if they’re establishing a religious test that says, “If you’re a Christian, or a Muslim, or an Orthodox Jew, who has religious convictions that marriage should be between one man and one woman that you are unfit to be a judge in the state of Oregon.” And this is just completely wrong.

Let me hasten to say that I think it’s perfectly reasonable to say that judges should be able to be objective if they have cases involving people regardless of their sexual orientation. But again, there’s just no evidence whatsoever that he’s done so.  So yes, I think this Oregon Commission is just completely out of bounds on this one.

Rick:

I wonder, I’m going to throw this at you because we didn’t plan for this part of the conversation. These commissions, what are your thoughts on Oregon and Washington and other places where these unelected commissions? I guess most of them are appointed probably by a governor, but still, you know they’re handing down these decisions, and like you said, it definitely makes me think of a kangaroo court because there’s no real accountability and they’re putting people out of business. In this case, it’s a judicial commission but it’s still potentially removing judges. I don’t know, I just feel like there’s no there’s no accountability with these folks.

Elected By The People, Removed By The Commissioner

Mark:

There is a huge problem. If listeners go to my article you can see I don’t really address these other counts but I say there are serious questions about them and I link to a response to these other counts.

Basically, it’s an administrative body. So this body basically selects someone to investigate the problem and prosecute the problem. This person has the complete resources of the state behind him or her. The administrative body then serves as a jury and judge. Vance Day is on his own to defend himself.

The most basic canons of judicial process are ignored. For instance, in some of these other counts involve accusations by someone who was in a Veterans Court. Judge Day was not allowed to cross-examine this person. He was not allowed to depose this person. Basically, the commission just went and got his testimony and used his testimony to support several of the counts against Judge Day with no ability for Judge Day to respond to the accusations. It’s just a complete kangaroo court. This sort of thing, we should not have anything of this nature in America at the state level, at the local level, and the national level.

But you’re exactly right. These administrative bodies where basic candidates of judicial process were being ignored are becoming more and more prevalent. That’s the sort of body that went after the Bakers here in Oregon and in many of the other states. So yeah, you put your finger on a very important problem.

Rick:

And we see the same kind of judicial type commission dealing with Judge Roy Moore in Alabama who’s elected by the people and now Commission removes him. We got all these federal agencies with these administrative courts that again, it’s like with FDA, FTC, all these different agencies that have their own process and you don’t get to a jury. I have big concerns and I hear horror stories of people being put out of business or fined.  It seems like we need to put some daylight on that and really consider whether that’s the kind of judicial system that upholds American exceptionalism and kind of freedoms we’ve enjoyed. Hey, there’s your next book, Mark. You need to get on that, we need that.

Mark:

Alright, we’ll work on it. Can I say one more thing about Judge Day?

Rick:

Yes, please.

Prosecuted For A Thought Crime

Mark:

Because listeners might think that he actually refused a specific request to participate in the same-sex wedding ceremony, that never happened. Never did a same-sex couple come and ask him to marry them and he said, “no” because of his religious convictions. So there was a brief period of time where he had a plan in place, he told his staff, “If two men or two women come and asked me to marry them just tell them I’m unavailable.” But that never happened during that time. Then eventually he just said, “Ok, I’m not going to do any weddings at all.”

So, in my article, I tried to be clever, and you mentioned a reference to Orwell, he is being prosecuted for a thought crime. He did not actually refuse to participate in a same-sex wedding ceremony.

Even if he had, I think there are good defenses you could make. But because he did it, there is no case, no controversy, it’s completely inappropriate that Oregon commissioned a judicial fitness is using this as account against him. So it’s a kangaroo court. And I encourage your listeners to look at this little article because it is a real serious problem. It’s a travesty.

Rick:

I’m glad you brought that back up because I forgot to even mention that at the beginning and ask you about it. Just the just the whole idea that that action didn’t take place here.  These were his own thoughts and beliefs and that’s what the commission is acting upon, it’s a very scary thing.

The article is called “George Orwell Is Turning In His Grave” we’re going to have it at our website today.  You can get it at WallBuildersLive.com. And before you go, Mark, I know you’re working on two new books coming out one is Great Christian Jurist in American history. And then also America’s “Godless” Constitution, Deist Founders, and Other Myths About Religion and the American Founding. Really looking forward to those and having you back on when they’re ready.

Mark:

Super. Thank you very much. Have a good day.

Rick:

Appreciate it. That’s Mark David Hall.  Stay with us folks will be right back with David Barton.

Pastors Only Briefing Trip

Tim:

Hi, this is Tim Barton with WallBuilders and I want to encourage all the pastors out there with the 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 then I’ll tell you the 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 Pastors’ 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.

The Constitution Does Not Have A Litmus Test

Rick:

Thanks for staying with us here on WallBuilders Live. We’re back with David Barton now. Thanks to Mark David Hall for joining us. I don’t know guys,  I could feel it on the break there. You were both thinking Rick’s talking too long in this interview. So I’m offended just by your thoughts and I’m going in my safe space because thoughts alone are bad enough.

Tim:

Well, Rick, I can tell you what I was thinking wouldn’t be enough to offend you but it wasn’t what you thought I was thinking. I had different negative thoughts that were offensive.

Rick:

It was worse.

Tim:

See, if you actually knew what I was thinking. How ridiculous that we’re even having to have a conversation about the situation. You know, one of the things that Professor Hall talked about that I thought was significant, he pointed out that the Constitution does not have a litmus test, a religious litmus test to have a position of public trust to hold office.

Although, generally speaking, it’s true. It did make me think, back in the Founding time part of the reason they didn’t want you to have a religious litmus test was they didn’t want, again, even back in the First Amendment, we didn’t want, “In order to hold office you all have to be Baptist, or Catholic, or  Anglican, or Methodist.” Or whatever it was. And so every denomination had their own specific set of beliefs and therefore you couldn’t have a religious litmus test to make sure that, “This guy is a Congregationalist, this guy is a Quaker or he cannot hold public office.”

But I thought one of the things that we’re kind of moving in a different direction in our nation is now it’s not just about denominations. We’re seeing more Muslim elected officials which, ok fine, if people want to elect them we’re free to elect whomever we want to elect.

The Time When A Litmus Test Would Be Needed

But I thought here’s where the only time, perhaps, a religious litmus test might be significant is because if you have a Muslim elected official or a Muslim judge, if this is a Muslim who believes in Sharia law, which the majority do, well, Sharia law now is in complete contradiction of the Constitution.

David:

And actually, wants to replace it. It is a new system to replace the Constitution. Sharia law is a complete, comprehensive system of life and living. The Constitution has to be set aside where Sharia law rules. This is real simple. And you do not get the same justice standards, you do not get the same due process standards, and you do not get the same free speech standards. So if you are a Muslim judge says, “I uphold Sharia.” You have just said, “I am going to actually overthrow the Constitution.” is what it amounts to.

Tim:

So, maybe even the most simple way to do this would not even be to say, “Do you believe in Sharia?” Say, “Do you support the U.S. Constitution?” Because that also would probably eliminate a lot of negative officials who we didn’t want in those positions.

If they don’t believe the Constitution, even though they swear to uphold and protect it, most of them don’t support it. But that’s one situation where a religious litmus test might actually be significant when it comes to upholding the Constitution.

Rick:

So it’s not a religious litmus test it’s a constitution litmus test.

David:

Yeah, it’s a constitutional litmus test. And I thought about how many violations- I started writing down phrases as Mark was speaking. “Administrative body” which is what the commission is. “Full resources of the state against him.” So he’s got to do it out of his pocket. They can use unlimited resources and time and attorneys against him.

“He has on his own to defend himself.” “Not allowed to cross-examine or depose his accuser.” Now, that’s Fourth through Eighth Amendment. That is unbelievable. “No jury allowed,” Seventh Amendment.

Tim:

I think we’ve just violated a whole bunch of things right here.

David:

That’s right. But who’s going to prosecute because the prosecutors are prosecuting him? They’re not going the other way and they’re using the resources of the state not to uphold the Constitution but to prosecute a guy who is willing to use the Constitution. What’s called the Confrontation Clause or the Compulsory Witness Clause, there are all these clauses in the Constitution. He wants to use and they won’t allow him.

So this reminder, this is exactly what happened in Europe. They had what we called the Star Chambers, the high commissioner’s court, the admiralty courts. And in those chambers, it was all hearsay witnesses.

If somebody made an accusation you could not confront them, you could not call witnesses in your behalf, you could not see them, it’s the same stuff. And that’s what they objected to in the Declaration of Independence.

They talked about the fact that the king is not allowing us to have juries. Matter of fact, John Adams said, “In those high admiralty courts, no juries are allowed. What an abomination.” And so that’s where we are now.

The Trial Of Crimes Shall Be By Jury

And you know as Mark pointed out, the law says that you can have your choice of whether you want to do this or not. And he chose not to and now he’s being prosecuted for doing what the law says because his thoughts are wrong.

And so I just went through and pulled out just some quotes that really struck me on this thing about juries. Because it says, “The trial of crimes in the Constitution except in cases of impeachment shall be by jury.” Article 3 Section 2 paragraph 3. The trial of crimes, he’s been tried for a crime. So a thought crime but they’re going after him.

And so when you, for example, at the Constitutional Convention John Francis Mercer, a delegate the Constitutional Convention, he says, “The trial by jury is the Democratic Branch of the judiciary power, it’s more necessary than representatives and the legislature.”

You go to Richard Henry Lee, one of the guys who helped frame the Bill of Rights, “The jury trial, especially politically considered, is by far the most important feature in the judicial department in a free country.” I’ve got 15 or 20 of these quotes on juries that this is the most important part. And he’s been denied a jury trial and he’s been denied the right to compel witnesses on his behalf, the right to confront, and the right to confront his accuser. This is unbelievable stuff but it’s going on by the government through unelected agencies. This is the kind of stuff the Founding Fathers were so explicit in warning against.

Rick:

David, who is responsible at this point for reining in these agencies? Obviously, we the people ultimately, but do we need to be calling on our congressmen and our state legislators and saying, “Do your job, rein these guys in, get rid of them. You should be doing this as an elected official not farm it out to these guys.” I mean, what’s the best way to reverse this?

David:

Well, this is where our public outrage has to go up. It has gone up in Congress and they’ve introduced what’s called the Reins Act which is none of these regulatory laws stand unless they’ve been voted on by Congress. But they have to do that at state level. And the state level they need to hear from- as he pointed out, this is a judge is appointed by a Democratic governor. And they’ve had Democrat governors for a long time in Oregon. They need to go after this out-of-control administrative thing here that is not allowing him to follow these specific clauses in the Constitution.  Any kind of a letter, or a note, or a phone call, or whatever. It doesn’t take many to raise the level of attention in the state and that’s something every citizen can do and should do whether you live in Oregon or not.

Rick:

There you go folks, good action steps for you today. Thanks so much for listening. You’ve been listening to WallBuilders Live!