Rick Green

This is the Intersection of Faith and Culture. It's Wall Builders. We're taking on the hot topics of the day from a biblical, historical and constitutional perspective. You can check us out at our website, wallbuilders.com. I'm Rick Green, America's Constitution Coach and a former Texas legislator. Here with David Barton, america's premier historian and our founder at WallBuilders, and Tim Barton, national speaker and pastor and president of WallBuilders, you can get copies of the programs, the archives, sharing with your friends and family, get some good tools that will educate, equip and inspire you and your family, all at WallBuilders.com. That's WallBuilders.com.

And if you're not familiar with the program or never heard of it and you're wondering what do these guys do, ever heard of it and you're wondering what do these guys do, do they actually build walls? Yeah, we rebuild foundations. That's what we do. So think about the scripture in Nehemiah that says arise and rebuild the walls that we may no longer be a reproach. Back then, if you didn't have the outer walls, you were run over. I mean, you couldn't defend your city, you couldn't defend your nation, and for us, it's the foundation, it's the principles that have been destroyed and without those we lose our nation and obviously are not even defending our nation at the southern border. So we're all about rebuilding the walls, meaning rebuilding the foundations of America, which means you got to go back and know what the foundation is. You got to study who we are as a nation. You got to study our founding documents, study the founding fathers. What was the mindset that went into creating the nation? Why did they think equal justice was so important? Not social justice, but equal justice, which is biblical justice? Why did they think it was so important for you to have due process? Why did they think it was so important for you to have the freedom of religion, the freedom of speech, the ability to be the press or to have a free press, the ability to petition your government for a redress of grievances, the ability to assemble all of those things? There was a reason that they put that into our Constitution. There were reasons that Jefferson even used the language in the Declaration of.

We hold these truths to be self-evident that all men are created equal, that we're endowed by our Creator, not Congress, not government, not our neighbors. So all of that it's for a reason and it builds a strong nation and it's why America became the greatest nation in history. And running from those things is why we're falling apart. So we've got to get back to those foundational truths. So we call Thursday programs, foundations of Freedom Thursday, because it's a chance to talk about whichever one of those foundational truths you want to talk about. So be sure and send your emails in, ask your questions and we'll get to as many of those as we possibly can.

All right, David and Tim, let's jump in. First question is from Patrick, and he's asking about the Supreme Court, which we talked a little bit about last week as well. But his question is actually regarding the jurisdiction of the court and the power of the court. So here's how he says it. He says does the Supreme Court of the United States have the final say with deciding constitutional law? Now, before you guys answer, I would say if we polled on this, I bet 90,. You guys answer, I would say if we polled on this, I bet 90, I don't know. Five, nine percent of Americans think that the answer to that question is absolutely yes. They have the final say and they're the only ones. So let's start there. That would be popular opinion anyway.

David Barton

I would say, answering that question, Rick, you're going to love this answer. This is exactly what you expected from me. I would say the answer is yes, because I think they're the only branch reading the Constitution today. I don't think, Congress does.

Rick Green

Oh, you mean the current court,

David Barton

 the current court, so I think right now, currently the Supreme Court of the United States is the one who reads the Constitution most frequently. Now, theoretically, from what the constitution established, absolutely they don't have the final sound constitutional law and constitutional law really doesn't exist. The constitution exists. You don't have constitutional law. That that's a kind of a progressive thing that they've made over time. Here's constitution no, no, you have the constitution all

Rick Green

 I didn't even think about that. That's a great read into that, because that also is our perspective. It's like it's the living, breathing constitution, right, that phrase is actually the living. I never even thought about that. When people say constitutional law, they're literally living out the whole living, breathing constitution thing.

David Barton

Yeah, there is the constitution, that's all. You got the constitution and everybody takes note to uphold it if you're in the federal government, so all three branches know exactly what it says. So why do we say today, only one branch understands it, that that only the court knows what constitutional law is? No, no, everybody supposed to read the constitution, supposed to know when they get in there? It's supposed to be all three branches, and every federal, every federal person sworn in, should be able to handle the constitution. 

Tim Barton

Well, dad, I'll point out you said that Supreme Court is the only one that can understand constitutional law and said that again. I mean, really we're talking about interpreting the Constitution because, as you pointed out, constitutional law is kind of just taking the collection of the interpretation of the Constitution, saying this is what the law is based on, that kind of former precedent, and really this goes back to a lot of the progressive push back in the early 1900s. Instead of going back to the constitution and say, well, let's just look at what the last court decided and that will be the precedent we reference, and that's what's kind of become the foundation for what's known as constitutional law is just what's the most recent or the most overarching precedent. But the Supreme Court is not the only ones that can read and decipher and interpret the Constitution. And this is where you guys I've said this so much, so often Constitutional Alive, which has now been out for a long time.

Y'all made this point so well in the Federalist Papers. The founding fathers were so clear about that. The branches are not co-equal that the legislative branch necessarily predominates. It's the one that's the most powerful, it makes the laws, and that the Supreme Court is, without comparison, the weakest. I mean by far it is the weakest.

And so the idea that you're going to say the weakest branch is the only one that can determine what is constitutional is a crazy proposition when it goes back to original intent.

But, dad, to your point, the way that we've operated the last several decades, everybody's looked at the Supreme Court to determine constitutionality and really by default, the Congress has given their power over to a different branch of government. Almost, I mean we could say they were kind of politically protecting themselves so that they can say, hey, it wasn't us that said this wasn't constitutional, that was the court. You know, for me, just reelect me, because I'll always do what makes you happy. And so we have seen the willful negligence of Congress in so many scenarios, and at times even the president, to uphold the constitutional standard and allow the without comparison, according to the founding fathers, the weakest branch be the ones to determine what is constitutional. But it's such a great point you made that this notion even what's constitutional law, it's really just a culmination of what's been the precedent over the last several decades

David Barton

 and you go back to what's happening now, like what President Biden's got all these proposals on changing the court. He's doing that because he thinks that they are the source of all law and he doesn't like what the court's deciding. So we're going to fix that system so that we can be in charge again. No, no, no, just read the Constitution. I know it's a novel idea for President Biden and I know it's a novel idea for most Democrats. But, quite frankly, if the court were to come down with a ruling tomorrow that says 9-0, hey, it's okay to have requirements that remove guns from citizens. Does that mean that's constitutional law? Because it clearly violates the constitution. So it goes back to what we're talking about. It doesn't matter what the court says, it matters what the constitution says. Constitutional law should not exist. The Constitution does exist and everything we do should be held up to that.

Now there are times when the court did get involved in earlier years where they said wait a minute, congress, you overstepped your bounds. That's not part of what the Constitution says you can do, and so there was some constitutional law sometimes in that. And there's times I think the court got it right that the Congress tried to do too much and the court was the one drawing them back and saying wait a minute, that's not one of the enumerated powers. You can't get into that area because it's not given to you. So it's the idea that it's not constitutional law. But it was checks and balances among the three branches, saying here's what the Constitution is, and if you get too far over the line, we're going to call your attention to the Constitution, not to our previous precedent, not to our decisions, not the fact that we've ruled on this eight times previously and you're not listening to us. That's not it at all. It is what the Constitution says and all three branches are supposed to uphold that Constitution to the best of their understanding.

Rick Green

And just as a summary as we move on to another question, David, I remember you saying years ago and I really adopted this and and, and, ironically, even Newt Gingrich adopted it when he was running for president. I don't remember if that was a waiter or 12, I think it was a wait actually. But um, you know that that basically the, the, all the branches, have some say in this and that two out of three can win if there's a real fight over whether or not something's constitutional. So if the president thinks that it's not constitutional and he vetoes it, congress can come back and pass it again or override his veto. If the court rules something unconstitutional, the president and the Congress can get together and pass that law again and there's a way to have that give and take.

And then, of course, the states can have a final say in whether or not something's constitutional by putting a rubber stamp through a constitutional amendment to say this is constitutional, even if the court said it wasn't. So it all comes back to what does the Constitution actually say and what did they originally intend? And so, kind of keeping with that time machine of going back to what did they originally intend when they passed it. We've got a question about what it was like back then when they were debating these things. This one's from Sergio and he said what are some distinctions that can be drawn between the federalist and the anti-federalist, and what role did the Whig Party play in shaping early American political discourse?

Tim Barton

Well, Rick, as you frame that question, if somebody wanted to know what it's like back then, I think only one of us can speak to what it was like back then of us can speak to the experience of what it was like back then.

Rick Green

Ouch, you know what. What was the? What was the love bug guy's name that recorded? Your uh bulletproof Washington Dean Jones, yeah, Dean Jones. I remember him saying one time that you know he just imagines that David Barton was actually right outside the window when they were debating these things and actually looked up and, you know, climbed up on a, on a stool or something to look through the window. Just remember him telling that story and I always think about that when I think about how do we know the original intent? David Barton was there.

David Barton

Well, I do remember one time George told me about this stuff that had gone on. Yeah, right, 

Tim Barton

was that George W Bush or George Barna, or like which George are you referring to?

David Barton

There's only one George in history. What are you talking about?

Tim Barton

 King George.

David Barton

 Back to the question of federalists, anti-federalists. Today, what we have in our political parties are federalists, anti-federalists, really to use the old term their own steroids. I mean it's really enhanced, but here's kind of the way it was back at the beginning and you really can make the contrast with John Adams and with Thomas Jefferson. Thomas Jefferson was probably a leading anti-federalist, john Adams was a leading federalist and you can kind of say one is kind of pro-Federal government, the other is kind of anti-Federal government, but neither one of them would have been for violating the Constitution If something the Federal Government is not supposed to do and the Constitution makes that clear neither one of them would have been for doing that. So I'm going to talk about Federalists and Anti-Federalists. Understanding they both had a line, but here's the difference, I think, between the Federalists and anti-federalists. Understanding they both had a line, but here's here's the difference, 

A federalist says it's okay for the federal government to do it unless the constitution says it cannot do it. And an anti-federalist would say it's not okay for the federal government to do it unless the constitution explicitly says it can do it. And so there's. They both are based on the constitution. But one would say, look, if the constitution doesn't say no, then it's okay for us to do it. The other says, well, if it doesn't say yes, then you can't do it. And so that would be the arguments they would have had back there at that point in time. Now what happens today is you have the federalists to say if we can, we will. It doesn't matter what the Constitution says. If we can pass a law to expand federal government, to get more agencies to do more things, we will.

The Anti-Federalists today would be the ones saying hey, wait a minute, there's only 17 categories of things the Constitution allows us to do, or some people say 18. It's one clause in the Constitution you can divide into or you can leave as one. But enumerated powers, there's a very small, limited list of what the federal government expressly can do. And what has happened is nobody disagreed with that back in the federalists and the anti-federalists. But there were things around the fringes, things around the edges, the nuances that were there that they would have. Nobody, for example, would have gone for a federal department of education not federalist, not anti-federalist. That was absolutely out because education is a 10th Amendment issue. That is clearly a state issue.

Today we argue about whether she'd be federal or state. That would never have been an argument back then. So I would say that's the difference between those two groups. They both agreed on what the Constitution says, but one says unless it explicitly says that you can't do it. And the other one would say unless it explicitly says you can't do it, then then it's, it's okay to do so. That's why I'd look at those two wigs. The wigs come in because you had really a time when um, 

Rick Green

because they were wearing them right, right, isn't that?

David Barton

oh, hey, that that's. That's your lack of spelling, bro. You need to go back to to school and get spelling right. It's a silent h in that you gotta have a silent w-h-i-g whig

Rick Green

 I'm a phonics guy.

It sounded like the same thing and I need a wig anyway, 

David Barton

you must have come through common core when they took out phonics. That is no, you would be the generation before this when California took out phonics, so wigs, you would be the generation before us when California took out phonics. So Wiggs at that point in time really had kind of become the anti-federalist, the federalist. They kind of went away for a while and then they came back with Andrew Jackson and the anti-federalist went away. And before Jackson, under James Monroe, you only had one party and it was federalist, anti-federalist, whatever you can call it. And then when it came to Jackson, they had what were called the Democrat Republicans and Andrew Jackson said well, I like the Democrat part, I'm not going with the Republican part. And so you had the Democrat party.

That became the party, and the opposite of that were the Whigs, and the Whigs were considered in British government. They were the ones that were the more conservative members of the legislature, they were the more conservative members of parliament and so that's kind of like the opposition party in America. The Whigs kind of took the place of the anti-federalists, but those guys had gone away. And then the Whigs joined with other third parties to eventually become the Republican Party. So they were always the party that was the more anti-federalist. The more limited government, the more. We don't need more federal government, we need less federal government, and the Democrats from the time of Andrew Jackson Ford were pretty much if we can, we will with the federal government.

Rick Green

All right, guys, we're going to take a quick break. We've got more questions coming your way. You're listening to the Wall Builder Show on Foundations of Freedom Thursday. Stay with us, we'll be right back.

Break

Rick Green

We're back here on WallBuilders. Thanks for staying with us on the WallBuilders Show Foundations of Freedom Thursday, which means you can send your questions in to us radio at wallbuilders.com. That's radio at wallbuilders.com. If we don't get to your question today, keep sending them in, because we love hearing from you. It helps us kind of know what people are interested in, both on the history, and it could be history. It could be specifically an issue that's happening right now in Congress or that people are dealing with in the culture. Maybe it's something in your particular state that you'd like us to address that we haven't gotten to yet. So please send those into us Radio at wallbuilders.com. We'll get to as many as we possibly can. All right, gene's up.

Next Gene's question is right out of Exodus, Exodus 20, 1 and 2. The preamble is clearly a religious pretext, making the Decalogue a sectarian religious text. Won't the ACLU atheists use this against its public school use? Okay, so basically saying all right, if you put this in the schools, you're actually propagating the God, not the gospel. I guess I don't know how you say. Basically saying you're pushing a particular religion in the schools and that is a typical objection to the efforts that we've made on this.

David Barton

And what I mean. What you face here is you say, ok, well, the Ten Commandments hang in government buildings all over the place. They're the basis of civil law in America. This is, this is a legal tax. And you go, but wait a minute. The first two verses are very clearly God-centered. So it may be a legal text, but it's a religious legal text. Why don't we have Sharia law or something else? And so what you've got is Gene asking that question of how are you going to get around this in a court case.

And so let me read Exodus 20, verses one and two. Here's what it says. And God spoke all these words I am the Lord, your God, who brought you out of Egypt, out of the land of slavery. And then he starts with the commands you shall have no other God before me, you shall not make a graven image, et cetera. So that kind of preface to the 10 commandments. It's really significant. And this is where one of the things that came out in the earlier Ten Commandments cases in the 70s and 80s is that there's all these different versions of the Ten Commandments. Well, that's because in Hebrew there are no verse numbers. It's all one paragraph, top to bottom. And it's interesting that I am the Lord, thy God, that we just read in that kind of preamble. That is actually the first command in the Hebrew view of it, because if you don't start with the acknowledgement of God, then why shouldn't you kill someone? If you don't acknowledge God, then why should you commit adultery? So they start with that as the first command and I think that's really important.

Tim Barton

And, dad, when you say Hebrew, we're talking about the Orthodox Jews. Even to this day, they would say that that is the first command. So when we're saying Hebrew view, this is where it's interesting. When people say, well, you're establishing a religion, and, of course, when people say that they are misunderstanding what that phrase was intended to do, it was a reference to something going on more specifically in their era, when in Europe, every single nation, largely speaking, if there was a king, the king chose a establishment of religion. It was a state established church, and so this is where King Henry VIII had been Catholic and he then got offended with some things in the Catholic church, specifically that he couldn't get a divorce because he wanted a different wife, because his wife kept giving him daughters instead of sons. So he found the Anglican church and then says everybody in England, we're going to be Anglican now. So the Anglican church. And then says everybody in England, we're going to be Anglican now. So the Anglican religion was the official established religion of England. After you have Martin Luther in Germany, Germany becomes a Lutheran nation and so we're all going to be Lutherans in Germany. If you're in Italy or France, at that point it was still Catholic and and this is where you saw kings. They would choose what that belief system was.

But, interestingly enough, when the founding fathers are doing the foundations of America, with the declaration leading into the constitution and then, ultimately, the bill of rights, when they're saying we're not going to establish a religion, they're referencing what was happening in Europe and in Europe. They weren't establishing Sharia, they weren't establishing Islam, they weren't establishing Buddhism or Hinduism. These were, whether it's Anglican or Lutheran or Catholic, you're talking about different sects of Christianity and what they're saying is we're not going to allow the federal government to come and say everybody has to practice these specific theological beliefs. However, they did not believe in a secular nation. It's where this notion of the separation of church and state. They believed in separate institutions, but they never advocated for secular institutions, and this is very clear. When you look at the founding fathers every single signer of the declaration who became a governor they would do prayer proclamations as governor. Well, if they believed in separation of church and state, then why, as governors, as a political leader, were they calling on their state to times of prayer, which is clearly religion? Because what they understood is that when they're separating church and state, they're separating institutions, but they're not secularizing any institutions. They're not saying we want the government to be secular.

And this is where, when you back up to that establishment clause, when, dad, when it comes to the 10 commandments and I'm trying to connect these dots for people when people today would say, well, you're establishing a religion, that's because we've confused what the founding fathers were trying to resolve. They were not trying to remove Christianity. They were trying to say we're not going to enforce specific doctrinal beliefs from a certain what we would know today as denominations. Back then they were known as religions. Because if you were Anglican, that was a religion. Episcopalians was a religion, Congregationalists was a religion. Baptist If you were a religion, that was a religion. Episcopalians was a religion, Congregationalists was a religion. Baptists were a religion. Today we would say denominations. Back then they said religions.

And so, dad, as you're pointing out, when you go to think of the Stone v Graham case of 1980, when the New Supreme Court says, well, you can't have the Ten Commandments, one of the things that was argued is that to display a copy of the Ten Commandments it would be so controversial because there's these deep doctrinal, theological disputes over the Ten Commandments. Well, most Christians today have no idea that Jews or Catholics or even Protestants might have a different numbering of the Ten Commandments, because we look and read and go well, those are all the same words, so we're all reading the same thing. But there were secularists who were trying to remove God, remove morality, remove biblical standards from government or education in this case, and so they found ways to try to drive wedges between the American people saying, well, no, this is so controversial. Well, I would argue that none of us even knew there was a controversy, so it couldn't have been that controversial. But this is part of that argument where people said or in this case the Supreme Court said you can't have the Ten Commandments because it's too controversial.

The Founding Fathers did not view the Ten Commandments as controversial. It was the foundation of common law. Common law was a foundation of law in England and some of Europe, but the foundation of law in America. Without the Ten Commandments there would have been no common law. Without common law there's no American law. This is the foundation of all law which, to add to your point, is why the Ten Commandments is displayed so often in federal courts. It's displayed in the US Supreme Court, all over the place.

David Barton

And what goes with this is because we have gone through roughly. I'm going to say what are we now? We're about 50, some odd years of the lemon test that said you can't do something religious unless it has a secular purpose. People are looking to see if there's a secular purpose for religious things. They're trying to get back into public life. And the court has awakened and we were talking about this earlier. It doesn't matter what constitutional law says, it matters what the Constitution says.

And so this current court has gone back and read the Constitution and said you know, all this constitutional law stuff and Lemon tests and others, that was all wrong. They caused the Constitution to be real clear. And so they've gone back to saying look, there's nothing. The Constitution requires an absence from religion. You don't have to cut religion out. You don't have to cut religion out. You don't have to make it all secular. Matter of fact, if it's been historical and traditional we've been doing this for a while it's part of it.

And so in this case you say okay, if you're going to say you can't have the 10 commandments because it's religious, then what do you do with the oath clauses in the constitution? Because the founding fathers said that those were very religious clauses. You're invoking God. As a matter of fact, they put it in federal law. You say so, help me God, as a testimony, as an oath, when you're sworn in and in lower offices, when you're a witness, you say so, help me God. You go back to George Washington. On the day we finished the Bill of Rights he said it is the duty of nations to acknowledge Almighty God and he went through what the other religious duties that nations have. John Adams said our constitution is made only for a moral and religious people. So because we've had 50 some odd years back since 1971, I guess that's 53 years now that the court has said we can't do that. People are so used to that and so if you've got a court that's willing to look at what history is, then they're willing to go back and allow that religious acknowledgement back in.

So I don't think that's going to be necessarily a hurdle in the courts Now. It's going to be raised in the courts Already. The lawsuits are going. People are saying, hey, you can't do religious stuff in schools, like Ten Commandments.

But the courts that have opened the door have done so because they recognize that's part of our history and you don't have to have a secular, god-free culture to be constitutional. So, even though that is an argument, it is going to be raised. It has been raised and the laws that have already passed, like Louisiana, it's going to be raised in the federal courts as it goes up. The only reason that law got passed was the courts have backed down on that position that everything has to be secular, be constitutional. So I think they're going to be in okay shape here. But the answer is yes, that definitely is a religious clause to open the Ten Commandments, and whether that's the First Commandment or whether that's the preamble in the Protestant version, the language is all the same and that's all part of the Ten Commandments and I think the court is going to go in the direction of. It's okay to say that and have that even in the classroom with students.

Rick Green

All right, folks, be sure to send those questions. Radio@wallbuilders.com, radio@wallbuilders.com. I hope that today, actually after you get more of these foundations, after you learn from these questions and we go back into history and we study these things, I hope that you'll be motivated to do more, that you won't just sit on the sidelines. Be motivated to do more. That you won't just sit on the sidelines. That faith without works is dead. That you will take your faith. You'll live out your faith in every area of the culture, including how we treat our neighbors and what our society looks like. Get educated on these things. Get more information at wallbuilders.com. Take our biblical citizenship class, host that class, become one of our constitution coaches and host those classes in your home or at your church.

Just got back from a coaches’ conference, got to hear all these great testimonials of what's happening in communities where they're hosting these classes. It's absolutely phenomenal and you can be the catalyst for a restoration of those biblical values and constitutional principles. You can be the one to lead the way in your community. Every single one of us can do something. Every single one of us has a voice that needs to be heard. Our values need to be counted. Step up and be a part of the solution. Folks, thanks so much for listening to WallBuilders.