Rick Green: At the Core with Walker Wildman and Rick Green

>> Walker Wildmon: We inform religious freedom is about people of faith being able to live out their faith, live out their convictions, no matter where they are.

>> Walker Wildmon: We equip sacred honor is the courage to speak truth, to live out your free speech.

>> Don Wildmon: We also rejoice in our sufferings because we know that suffering produces perseverance, perseverance, character and character.

>> Jeff Chamblee: This is At the Core on American Family Radio.

>> Rick Green: Welcome to At the Core with Walker Wildmon and Rick Green. I'm Rick Green, America's Constitution coach. Thanks for joining me on this Thursday. We were talking Tuesday about all the different things that we can be doing to make a difference. Certainly everybody doing their two, two, two, right. Two hours a week that you're volunteering and participating in establishing and rebuilding the wall so that we can restore freedom for future generations that could be hosting a Constitution class. It could be, you know, volunteering somewhere in your community, helping a candidate, lots of different things. And then of course, 2% of your fortune. That's right. Donating to American family or to wallbillers or to Patriot Academy or all the above, or candidates, but starting to invest in freedom with our fortune. So our lives, two hours a week of our lives, 2% of our fortunes, and then two times a week posting so that you're putting your sacred honor, your reputation on the line. Lives, fortune, sacred honor. So I thought it would be good today to follow that up with some of the in depth knowledge about the Constitution itself, especially with all these challenges by all these district judges trying to shut down Trump. We need to get a proper perspective on the proper role of the courts. So I'm going to jump into Constitutional Live. This is week seven in that Constitutional Live course and it actually breaks down Article 3 for judges. And we're going to cover that, as much of that as we can today.

David Barton and Rick Green dive into the judiciary on Constitutional Live

>> Rick Green: Welcome back to Constitutional Live with David Barton and Rick Green. This is Chapter seven. We're diving into the judiciary. And David, I can honestly say, you know, on one hand I got to go to one of the best law schools in America. Enjoyed it. But I learned far more from you and from diving into the original text than I ever learned in law school. Because they don't go back to these originals like you do.

>> David Barton: Well, you know, one of the problems we've got is if you believe in evolution as a form of philosophy of life, you believe in that, in everything. And so, that's what you see in education. Yeah, this stuff really, really works good. But we need to do something different. And so we had that whole thing of get rid of Phonics, it's worked great for 350 years. But let's go to whole language. Well, phonics is working great, but. Yeah, but that's so boring. Let's do something new. And it turns out we have a generation now, of illiterate kids. And so now even the state who started all that has abandoned it and said, let's get back. We did the same thing in history. You know, we don't care about our history. We care about our culture. History is the old stuff. We've evolved past that. So that's why right now in every major university in America, it's considered the elite. US news report lists those elites. Not a single one of them requires a course in American history for graduation. Not a single one.

>> Rick Green: Here you are going to get that supposed to be really good education, help to make good citizens. You're not even looking back and seeing who.

>> David Barton: We don't care who. We've evolved past that. And that's what you get in the.

>> Rick Green: Concept and math too, right? We went to new math.

>> David Barton: We went to new math.

>> Rick Green: We got all the old ways of doing things.

>> David Barton: You know, we're going to Common Core because that's going to fix everything. Now we're just putting, we're putting lipstick on a pig is what a math too. But that comes out of the philosophy that says, you know, old stuff is no good, never ever. Old stuff is no. You got to go to the new stuff. And it doesn't work. If an old way works and you get the right results, stick with it.

>> Rick Green: So why are judges so afraid to go back to the original and the old way?

>> David Barton: Well, it's what you were saying, it's what you're saying about law school, because they don't teach you what it used to be or the principles at work. They teach you what the decisions right now are. So everything you learn is starting sciences. We're going to study case law. And, and this is. You get the notion from this that judges are the ones responsible for all law. And so if you want to handle law, you got to handle what judges say. Because they will strike down the laws they don't want. They'll uphold, laws they do.

>> Rick Green: And that's certainly the attitude they teach themselves.

>> David Barton: That is the attitude they teach the.

>> Rick Green: High priest of the law. What they say is God.

>> David Barton: That's right. And so that is in there. And if you were to actually go back to history, or if you were actually to go back to the Constitution, you would have to alter that view. You'll find that, you know what of the 27 grievances in the Declaration, why we separated from Great Britain? Judges were for them. We got tired of British judicial activism. We don't think judges should make policy. So let's start our own country where judges can't make policy. And by the way, while we're at it, this thing, not only, of judges making policy, but Sam Adams, the other guy, said, we're tired of these lifetime appointments of judges because when they have lifetime appointments, they're not accountable.

>> Rick Green: That's right.

>> David Barton: So when we do our judiciary in America, we're going to make sure that there's no lifetime appointments and these guys are accountable. And yet how come?

>> Rick Green: So if they actually went back and studied it, they'd go, oh, well, that kind of messes up the system we've got now. I want to be one of them, those lifetime appointed judges. This, law professor's thinking, that's me down the road. So they don't want to teach.

>> David Barton: Hey, my founder is actually complaining. So they're not teaching truth as it existed. They're teaching truth as they want it to be. because, and see, this is what happens. It leaves them in charge of what happens to the Constitution. They become the small end of the funnel. Everything goes through me. Well, who with power wouldn't like that? You know, as Ben Franklin said, who could be a pharaoh and give power away? I mean, if you're a pharaoh and everybody comes to you for everything, would you give your power away? No way. And so that's what's happened with the law schools.

>> Rick Green: So you mentioned evolution though. So that's the evolving law.

>> David Barton: This is what they call the living Constitution. And now we'll get into this later. But the Constitution is a living document. But it's living through the people. Article 5 of the Constitution says if it needs to be evolved, the people get to do it. Now under law schools, they say if it needs to be involved, we, the judges will do it. We'll take care of telling you where you need to go. And I had a debate one time with a professor in University of Iowa and I went back on the separation of church and state and showed under the founders beliefs under their, they weren't secular, they didn't want a secular society. And I went through all the stuff and so I made my presentation and he gets to do it.

He says, okay. He said, I'll concede founding fathers weren't secular and they didn't want a secular society. He said, but my position is that we shouldn't care what they wanted. Forget we should not be bound by what guys 200 years ago. We should be bound by what we today want. And so I acted really shocked. I said, no way. I mean, are you telling me you think we should not do what the founders wanted? You should do what the people today want? He said, that's exactly what I'm telling you. Say, I'm so grateful. M glad to hear that. Because 86% of the nation thinks that all public meetings should begin with prayer.

>> Rick Green: Turned it on.

>> David Barton: I did. I said, 82% of the nation wants to have spoken, prayer in public schools. 76% of the nation, they want the Ten Commandments posted on. And he said, whoa, whoa, whoa. He said, wait a minute. Don't forget separation church and state. I said, wait a minute. You just said the people should be in charge. Now you've gone back to a 200-year-old thing. And see, that's what they do. They want to be in charge. They believe in a living constitution, but not done by the people. We'll take so they can choose then.

>> Rick Green: What they want to.

>> David Barton: And I'm going to impose my values on you because my values usually lose to the ballot box because people do like religion. I don't. So I'm going to impose it on you. And I'm going to tell you that the Supreme Court is the arbiter of all the law and land. And that literally is what happens. And it becomes what we call the fiction of the law. If you believe the law says a certain thing, you will behave accordingly because you don't want to break the law. We're not law breakers.

>> Rick Green: Even if it's a false perception.

>> David Barton: Even if it's false. And so what we do is self limit and self censor as a result. And I give you just a real easy example. Churches are told you can't say anything political in the pulpit. You're 501. Got news for you. Churches are not 501. Organizations that want to be like churches are 501. A church is tax exempt by its very nature.

>> Rick Green: Don't even have to go through that whole application.

>> David Barton: And by the way, even if you are a, 501 as a church, did you lose your right of free speech for being 501? Did you lose your right of association? Did you lose your constitutional right of freedom, religion?

>> Rick Green: But they think they did.

>> David Barton: They think they did. And so what happens is 370,000 churches across America refuse to say anything that an IRS official might construe to be. And so what's happened the last several years, I'm part of a group that we legally have challenged that we've gone after it because I've been involved in a lot of court cases, and we have solicited and singled out thousands of pastors who deliberately crossed that IRS line. We turned those sermons into the irs and they crossed it. You got to come after them. Because we know if we can get the IRS in court, we'll beat them on constitutional grounds hands down. Beat them on history, we'll beat them on logic, on constitution. And the IRS refuses to take the bait. They would rather have 370,000 pastors think the fiction of the law is you can't say anything than get in court and have 307,000 pastors find out you do have a right of free speech.

>> Rick Green: They were wrong.

>> David Barton: That's right. And so that's the way we are with the courts. We have this fiction of the law that says, you know, judges have lifetime appointments, so there's just nothing you can do about it. And, you know, judges are the ones who get to decide what's constitutional or not, and there's nothing you can do. And so we're told. And if we believe this, we become neutralized, we become paralyzed. Because, how can I get rid of a federal judge who's got a lifetime appointment? I'm not a lawless person. I want to follow law. I respect the Constitution. That's not what the Constitution says. And so what you said at the beginning of this was very significant in the fact that they don't teach this at law school. You learn more about the Constitution by getting out of law school and actually reading old documents than you did with anything else. And see, that's the fiction of the law. And that's what's happened. I particularly with the third branch. So going to the third branch, one thing to remind is, remember how the founders did this. Article one, see how long it is? Article two. Now we're at article three. This is the shortest of the ones. And going back to what the founding fathers said in the Federalist Papers, they said the judiciary is beyond comparison, the weakest of the three branches. And the general liberty of the people can never be endangered from that source. It is so stinking weak that we don't have to worry about them ever taking control if keep it the way.

>> Rick Green: They intend it to be.

>> David Barton: Yeah, ah, they've taken control because we've said, well, I didn't know I was supposed to give you control. I guess I'LL just. And see, that's where knowing those, John Jay, those six verbs, you read, you study, you teach, you know, perceive, then you defend and you assert. Now we're to the asserting point. You have to assert that the judiciary is not the supreme branch. It's the least of the three branches.

You got to get back to the Constitution, then you can assert that. So the only way to get there is we got to study it

It gets to make no policy. You got to get back to the Constitution, then you can assert that.

>> Rick Green: Yeah. So we have to know. So the only way to get there is we got to open it up and study it. So we're going to really blow away some of those myths in the judiciary and get people back into the actual language of the Constitution. And what these guys we've learned about here in this library said the way that the judiciary should work, and that way we can get it working that way again. So we're going to head back to Philly and learn about Article 3, the Judiciary.

There is a lot of confusion in America about the proper role of the judiciary

Let's jump over to the courts, because this is really where, I think we have a lot of confusion in America today about the proper role. What does Article 3 actually empower our courts to do? And so much of our jurisprudence, you know, we talked last night about how we want. We don't want judicial interpretation. We want original intent. We want to deal with the genuine Article so much that we recognize when somebody is getting off track. The judiciary has always been an issue. I mean, if you go back to that Declaration of Independence that these guys gave us, they gave us grievance after grievance, 27 different grievances. Many of those were judicial tyranny grievances. They did not like judicial tyranny. they didn't like judicial activism. In fact, Sam Adams was one of the guys that was speaking out against judicial activism way back in 1765. I mean, he was already speaking out against, unaccountable judges. He didn't like the fact that the, king was appointed the judges, and therefore the judges were beholden to the king, not to the people. He didn't like the idea of lifetime appointments. I mean, all of these things were objected to by Sam Adams eleven years before these guys gave us the Declaration of Independence, and another decade before the, you know, two decades before the Constitution. So they had concerns about the judiciary, and they tried to design it in a way to where it would not be a danger to the rights of the people. And so what I want to do very quickly is run through four myths of the judiciary, the kind of concepts that we have right now in America about the judiciary that would be foreign to these guys. If they were alive today and could tell us what they think about the judiciary, these myths have really become a problem in the way that our system actually works.

Myth number one, the three branches are co. equal is not true

So let's jump right in. Myth number one, the three branches are co. Equal. How many of you ever heard that we have three equal branches of government? Right. It's what I was taught in school. Three equal branches of government. No, it's not true. I mean, the Supreme Court even has it on their website. They talk about the framers of the Constitution. The guys in this room created three independent and co equal branches of government. Did they? Well, how do we find out? We go to the instruction manual for the Constitution, the Federalist Papers, given to us by those three guys in the picture, Madison, Jay and Hamilton. Here we have. Let's see, I think this particular copy of the Federalist Papers. This is an 1818 copy. So this is just a few years after. All right, so here's an 1818 copy of the Federalist Papers. And in those Federalist Papers, those three guys went through every issue in the Constitution you can think of. They addressed every issue because what were they doing? They were trying to convince the people of New York and ultimately the nation to adopt the Constitution that they had been part of creating. So in those Federalist Papers, they make the arguments for how the system is going to work and they describe how the three branches will work together. I find it very interesting that James Madison actually tells us which of those three branches. So we've got our legislative, we've got our executive, we've got our judiciary. He tells us which of those three should be the most powerful branch. It's right there in Federalist 51. No mince in words. He says the legislative authority necessarily predominates. That's not equal. If one branch is dominating, that's not equal. Right. Why did he say that the legislative authority necessarily predominates? Why do you want the legislative branch to be the most powerful? Closest to the people. Closest to the people. That's exactly right. So they have to answer to us more often. Right. Every two years they got to come home and answer to us. Now, the President does answer directly to us, but every four years, judiciary doesn't answer directly to us. Judiciary answers to the other two branches, which we'll see in a moment. But he said that's why they necessarily dominate. Exactly right. So can you guess which of the three branches is supposed to be the weakest of the three? How about the judiciary? Here's Alexander Hamilton in Federalist 78. And this one is going to surprise you. So listen to what he said in Federalist 78. He said the judiciary is beyond comparison, the weakest of the three departments of power. The general liberty of the people can never be endangered from that quarter. M. Did he get that one wrong? If we take his words and we bring them to today, he got it wrong. But if we go back to his day and their perception of what the role of the court would be and how it would operate with the other two branches, he actually got it right. Had the court stayed in its proper place, it would continue to be the weakest branch and our libertine would not be endangered. Here's how I explained it. I mean, so long as the judiciary, and he even saw that coming, I mean, so long as the judiciary remains truly distinct from both the legislative and the executive, liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments. So if the judiciary begins to act like the executive.

>> Rick Green: Quick break, folks. We'll be right back. You're listening to at the Court with Walker Watman and Rick Green.

>> Jeff Chamblee: At the Core Podcasts are available @afr.net Now back to At the Core on American Family Radio.

David Barton and Rick Green discuss the proper role of the judiciary

>> Rick Green: Welcome back to At the Core with Walker Wildmon and Rick Green jumping right back into Constitution Live as we study the proper role of the judiciary.

>> Rick Green: So if the judiciary begins to act like the executive or like the legislative, if the judiciary begins to make law instead of apply law, judiciary is no longer in its proper role, then you bet it's going to become dangerous. But he's saying so long as it stays truly distinct and does only its role, we're going to be fine. And then he went on to describe why it couldn't harm us. He said, the judiciary has no influence over either the sword or the purse. Who's got the sword? Executive, Executive branch. Who's got the purse? The legislative branch. So the judiciary doesn't have the sword, doesn't have the purse. He says no direction either of the strength or, or the wealth of the society, and can take no active resolution whatsoever. It may truly be said to have neither force nor will. That's why Andrew Jackson could say, that's a nice opinion you got there, Supreme Court. Let me see you enforce it. Now that's what George Bush should have said when the court was trying to tell him how to run the war on terror, what to do with Guantanamo Bay. He said, wait, wait, this is my job over here as the Executive. I appreciate your opinion. I'll Take it into consideration. But you can't tell me how to do those things. It's part of my duty under the Constitution. See, used to these guys pushed back and forth so that the process would continue to work. This guy you may not have heard of before, William Giles, he was one of our original, Congressmen. He was in that very first Congress. He helped to give us our Bill of Rights. He served with under four different presidents. Very distinguished, founding Father, just not somebody we read much about today. But he did a lot of commentary, on the Constitution itself and on the judiciary. Check this out. This is a long quote, so stay with me on this one. Superficial observers take it for granted that the three departments of the government are coordinate and independent of each other. It is to be observed that the words coordinate and independent are not to be found in any part of the Constitution. According to the Constitution, the establishment of the Judiciary Department was entrusted to the Legislative Department. Is the Judiciary Department formed by the Constitution? It is not. It is only declared that there shall be such a department, and it's directed to be formed by the other two departments. Why? Because they owe a responsibility to the people. So the Constitution, he's saying, did not just set up this Judiciary that no longer has any accountability to anybody. What it did was it said, we want a judiciary and we want these two branches to design it, to put it in place. And then the Judiciary is going to be accountable to those two branches because they owe a responsibility to us. He goes on to say, the number of judges, the affirmation of duties, the fixing of compensations, the fixing the times, when and the places where the Court shall exercise the functions are left to entire discretion of Congress. Now, get this next part. Congress may postpone the sessions of the courts for eight or 10 years and establish others to whom they could transfer all the powers of the existing courts. It is not me. This is one of the founding fathers. He said, the spirit as well as the words of the Constitution are completely satisfied provided one Supreme Court be established. I love the way Steve King says congressman from Iowa. He put it this way. He said, constitutionally, Congress can reduce the judiciary to nothing more than Chief Justice John Roberts sitting at a card table with a candle. I like that picture, right there, don't you? I mean, what he's saying is Congress has some authority here. Congress doesn't have to just lay down and let the court do anything that they want. Three separate branches not equal three separate branches that are the checks and balances on each other. And we haven't been checking. We haven't been creating a balance when it comes to the court. We've made them the end all be all, because we haven't gone back and read the Constitution to see what their real power is. And, and the Congress itself has not been doing its job. They're not fulfilling their duty and their role to be a check on the power of the court. So what are some of those checks that they could actually do? Well, first of all, they're the ones that create all the inferior courts. Remember last night when we went through the powers of. The enumerated powers of Congress and one of those was to constitute tribunals inferior to the Supreme Court? That's our appellate courts. That's our district courts. The Congress creates those courts. Look right there on, article three, section one, page 28, article three, section one. Judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time, ordain and establish. Congress can create a new court. It can abolish an old court if it wants to. And we've done that before. So when you hear guys talking about, hey, you got a judge that's just off his rocker, you got a judge that's just, you know, abusing his power. And I mean, we don't even have to go into all the examples. Impeachment is not the only option. You could actually abolish that court. That guy is going to come to work the next day. There's no job, there's no salary, there's no secretary. There's nothing there. His court's abolished. And Congress can turn around and create a new court absolutely within their power. They've done it before. We ought to do it more often. The other thing they can do is they can set the agenda. They can actually take an issue away from the courts. This one blew my mind. Nobody told me this in law school because you got to think about how we teach in law schools now. It's all about the judiciary being the high priest of the law. They don't want we the people to be reading the Constitution and understanding how this. I mean, it's a mindset of, If you've been through law school, you know better than everybody else, it's a terrible idea. We need to make sure that we the citizens. You realize the Federalist Papers, this was written for the average upstate New York farmer. Now, I'm going to admit that's some hard slogging right there. I have a hard time getting through the Federalist Papers. It's hard reading. But every time I come, that's what David Barton tells me. He says, I understand, son.

They wanted everybody to understand the Constitution today. That was the deal

It was written for the average upstate New York farmer. I understand why you are having a hard time. That was the deal. They wanted everybody to understand the Constitution today. Look, I am a lawyer. I have been through that mindset, and it is not a good thing. When I say the high priest of law, what I am referring to is, you remember, used to they would say, oh, don't worry about it. You don't need a Bible. I am going to tell you what the Bible says, remember? I mean, that is kind of how it was. We didn't want it in the hands of the people. Constitution is something just like the Bible ought to be in everybody's hands. Let everybody study it for themselves.

The Supreme Court acknowledges that Congress has the power to take issues from courts

So, anyway, back to this issue of the Congress, being able to take an issue away from the courts. And they do this all the time. It's usually a small issue you don't hear much about, but they can do it with big issues, too. Here it is at the bottom of page 28. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make. Now, what that means is that the Congress has the power to say, here's an issue. Let's take under God and the Pledge of Allegiance. We can take that issue away from the courts and say, you don't even get to review this issue anymore. Congress is saying it's constitutional. You don't even get to decide anymore. We've actually passed that in the House twice. Haven't been able to get through the Senate, but we passed it to the House twice. And then the courts don't even get to review it anymore. Here's an example of the Court, actually, the Supreme Court acknowledging that Congress has the right to do that and that Congress had done that. And so an issue that came before the court dealing with writs of habeas corpus. They said, we can't decide this issue. The court has taken away our authority on this. I mean, the Congress has taken away our authority on this Supreme Court acknowledging that the Congress has the power to take an issue out from under their review. The provision of the act of 1867, this is, ex parte McCardle is the case. The provision. This is the Supreme Court, with Chief, Justice Chase writing the opinion. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed, it is hardly possible to imagine a plainer instance of positive exception. Meaning the congress is saying, this is an exception. You cannot consider this case anymore. We, meaning the supreme court, are not at liberty to inquire into the motives of the legislature. We can only examine its power under the constitution. In other words, all we can do is make sure that congress does have the power to take an issue away from us. When we look at the constitution, we can only examine its power under the constitution. And the power to make exceptions to the appellate jurisdiction of this court is given by express words, those words that we just read. Without jurisdiction, the court cannot proceed at all in any cause. It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal. And judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the constitution and the laws confer. The court said, yes, congress, you can take away issues. Why do we not do it anymore? Because congress is scared to death to pick that fight. There's 1867. Congress is scared to pick the fight. Because you might even remember a few years ago whenever the whole terri schiavo thing happened. Y' all remember that? And you had a lot of courts hearing that case, state and federal courts, and there was a congressman that stood up and said, we should impeach some judges over this. They're outside the bounds of their authority. It was a firestorm, man. the media went crazy. They said, oh, look, that's congress taking power away from the courts. That's congress trying to intimidate the independents of the judiciary. No, that's congress doing its job. That's congress holding the court accountable. If congress is wrong, then we the people will stand up and say, no, you shouldn't have impeached that guy. No, congress is over. But see, the problem is, if we the people don't know that they have the power to do it, Congress is never going to get too far in front of the people, because they know if they do that the media is going to attack them and we're not going to be there to back them up. So we the people first have to understand what the proper power of the congress is, Then congress will actually start exercising that duty. So that's myth number one.

Myth number one: Congress dominates. Which branch is the weakest judiciary

Three equal branches of government. No, they are not co equal. Which branch dominates? Congress dominates. Congress dominates. Which branch is the weakest judiciary? Which of course leaves the executive right there in the middle. Alright, so myth number one, that we do not have three equal branches of government. Myth number two, federal judges hold lifetime appointments. Do they? No. How long are they appointed for good behavior? There you go. So it is not lifetime appointments. It is for good behavior. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior. So we are still on Article 3, Section 1 there. That's the middle of that paragraph for Section 1. So they hold their offices during good behavior. So the question then is, what is good behavior? Well, we can go to the Judiciary act of 1802. John Calhoun is the author. He said we all fully in at once understand what is good behavior in a judge, and if he acts contrary, it would be misbehavior. Okay, well, that didn't help us much, did it? So he says there's a remedy, and the remedy in that case given by the Constitution is impeachment. So what is bad behavior or misbehavior? And what would be a proper misbehavior for which to impeach a federal judge for? Oh, we'll just give you some examples. We've got six different clauses establishing impeachment in the Constitution. In fact, let's just look real quick so we understand how impeachment actually works. Flipping back to Article one. So we're going back to Congress for a moment here. In Article 1, Section 3, on page 8, we find that the Senate is the one that will try all impeachment. So fourth paragraph from the top, on page eight, the Senate shall have the power to try all impeachments. And then right below that, the next paragraph, it says, judgment in cases of impeachment shall not extend further than to removal from office and disqualifications to hold and enjoy any office of honor, trust or profit in the US but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to law. So that means if you're convicted of impeachment, if you're, removed from office and you're barred from holding any future office, that doesn't mean you're off the hook at that point. You're still going to be liable with your local DA back home or wherever the crime actually occurred. So it doesn't mean impeachment is the only thing that can happen to you. It's just the only thing that Congress can do to you. And if you go flip back one more page there, okay, it's, right above section three. It's the last part of section two. The House of Representatives shall choose their speaker and other Officers and shall have the sole power of impeachment. So you say, wait, House has the sole power of impeachment. Senate has the sole power to try all impeachments. Easiest way for me to understand this is like a grand jury and a regular jury. The House of Representatives is like the grand jury, if you think about it. If you were. If a prosecutor said that you had done something wrong, they take their best case before the grand jury and say, we think this person should be indicted and go on trial. You don't really get a chance to present, yourself. It's all the worst stuff about you. If they say, if all of that's true, then this person needs to go on trial. Then you go to trial with the regular jury, and the jury gets to hear all the good and all the bad. So they're going to hear the best case against you, they're going to hear your defense, and they're going to decide guilt or innocence. So the grand jury is deciding whether or not you go to trial. The jury is deciding whether or not you're guilty or innocent. Impeachment. The House is like the grand jury. They decide whether or not you should go to trial, whether or not you should be impeached. That doesn't mean you're guilty. And then the Senate, tries the impeachment, and they decide, like a regular jury, guilt or innocence. So that's why you could be impeached but then not convicted, which is what's happened several times. And President Clinton was one of those examples. So he was impeached, but he wasn't convicted by the Senate. So we've actually had several cases of impeachment throughout our history. 62 times there's actually been an impeachment investigation. 19 times there's been a conviction and an actual impeachment. All 19, in, judicial cases. So that guy right there was the one, I guess about. Been about 15 years ago. His name is Alcee Hastings. He was impeached as a federal judge for taking bribes. Then the good people of Florida said, well, that obviously qualifies him for Congress. So he got elected to Congress after being impeached. For him being a federal judge, I'm thinking, man, what happened to our qualifications for Congress? And he said, well, wait a minute. I thought if he got impeached, you're barred from running for office. So you go back to that language. It says, disqualified to hold and enjoy any office of honor, trust or profit. So I guess being in Congress is not an office of honor. Maybe no no, that shouldn't be negative like that. We shouldn't be disrespectful. Actually, what happened? And it happened only it's been a while actually since the Senate convicted on impeachment and did both, removed them from office and barred them from holding any future office. It's their choice. They can do just one or they can do both. In the case of Alex C. Hastings, they didn't do both. And so he was able to run and serve in Congress. okay, so what, what are some examples of a breach of good behavior and impeachment? Here's some of the causes for impeachment throughout our history. A lot of people think today high crimes and misdemeanors means you've got to commit a really bad crime or really bad misdemeanor. It actually means a misdemeanor or crime at a high level. In other words, one of your officials and these guys, the founders believe you can be impeached even if it was just something that was immoral. So it may not be illegal, but it feels immoral. So look at some of these examples. One judge issued an order contradicting an act of Congress.

The legislature can use impeachment to rein in the courts, Hamilton says

He's impeached drunkenness in private life, impeached rudeness in the courtroom, profanity, judicial high handedness. So see, these guys understood that the court is a branch of government that you've got to hold in high esteem. You've got to be able to respect who's on the bench. And therefore if they're having any misbehavior, as they put it, then they should be impeached and you get them off the bench so that you don't have that kind of example. In fact, Chief Justice Marshall was concerned about this idea of being impeached for overruling an act of Congress. He said the president doctrine seems to be that a judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment. Yeah, I think that might be a pretty good idea sometimes these days. Here's the way Hamilton put it. I think this is a great word picture for us to recognize. Impeachment is a bridle in the hands of the legislature. Think about if you got a wild stallion, right, it's out of control. You need that bridle to rein it in so that it can do its proper function. Same thing with the courts. The legislature can use impeachment to rein in the courts. It's the bridle, Hamilton said, to reign in the courts and keep them in their proper place. Each branch is furnished with constitutional arms for its own effectual powers of self defense. Remember I said if one branch encroaches on the other, that branch has to push back. They all three, according to Hamilton, have their own constitutional arms for self defense against the other branches. James Iredale was a delegate to the Constitutional Convention. He was also one of our original Supreme Court justices. He said, every government requires impeachment. Every man ought to be accountable for his conduct. Impeachment will be not only the means of punishing misconduct, but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty. But if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very territory of punishment will perhaps deter him. In other words, if somebody's unaccountable, if you allow the judiciary to be unaccountable, there's nobody that's ever going to hold them accountable for what they're doing. Of course they're going to do things that they're not supposed to do because there's nobody that's going to hold them accountable to it. But even if they're a bad person, if they know somebody's going to hold them accountable, they're likely to not do the bad thing because they don't want to be caught and punished for it. So we need to be using these constitutional arms that Congress was given. Myth number two. Federal judges do not hold lifetime appointments, are appointed for good behavior. And these guys gave Congress certain constitutional arms to use. They ought to use them more often.

>> Rick Green: Our folks got to interrupt for another quick break. We'll be right back. Stay with us.

>> Rick Green: You're listening to at the Corps at the Corps podcast are available at afr.net now back to at the Corps on American Family Radio.

Myth number one: The judiciary is to protect the minority from the majority

>> Rick Green: Welcome back At the Core with Walker Wildmon and Rick Green. We're listening to Constitution Alive. Learning about the courts, the proper role of the courts under the Constitution.

>> Rick Green: Okay, so we don't, we don't have judges appointed for life. Two more myths. Myth number three. The primary responsibility of the judiciary is to protect the minority from the majority. In fact, the Supreme Court says on their website the purpose of the Bill of Rights is to protect the minority from the majority. I'm sorry, I kind of thought that Bill of Rights was for everybody. Doesn't it apply to all of us? I mean, sometimes I'm in the minority, sometimes I'm the majority. But I don't think my rights under the Bill of rights change. Right? I mean, I'm, you know, I'm a country bumpkin. I come up here to the northeast. I'm in the minority as a country boy. Right. If my race or my religion puts me in the minority in a particular organization, that doesn't change my rights under the Bill of Rights. It doesn't change, the power of the government versus my individual rights. So a bad idea to think that the Bill of rights is only to protect the minority from the, from the majority. But that's often what we hear, and it's often the reason for a lot of the Supreme Court decisions. The heckler's veto. The idea of allowing the individual or a small group to force their opinion on the majority because we're somehow protecting their rights. It's a bad idea. It creates bad law. Washington and Jefferson, two totally different political parties. One's a federalist, one's an anti federalist, but they totally agreed on this idea. The fundamental principle of our constitution requires that the will of the majority shall prevail. If you get away from that, you are going to start getting bad law. Lots of examples of anti majoritarianism. You take gay marriage. 72% are against it in America, and yet we keep having it forced on us by the courts. You take prayer in school. 82% of Americans say they want it, yet the courts keep siding with the minority, teaching both evolution and intelligent design. 68% of Americans say to do that, yet the courts keep preventing us from being able to present both sides. Abortion. 70% of Americans want some sort of restrictions on abortions. Always having all kinds of overturning by the court because they side with the minority over the majority. Ten Commandments hanging in the school. 76% of Americans say do it. Courts keep, overruling it because they're siding with the minority. Under God in the pledge. 90%, I think it was Robert Kennedy said, you're always going to have 20% against everything. Well, in this case, we got 90% for it. And yet the courts still often say no to that. That's the ninth Circuit, of course, and out there on the left coast. Fortunately, the Supreme Court said you got that one wrong and didn't give them jurisdiction, on that one. But anyway, so, you know, it's just a bad idea to think that the minority should have the, that the Bill of Rights is there to protect, or that the judiciary is there to protect the minority over the majority. It means what we should do is protect everybody's rights. Everybody should have equal protection. Under the law. And that means if I have a different view than the rest of you, I shouldn't be able to force my view on you. You can't force your view on me, but that doesn't mean that I can stop you from expressing your view. It means that you can't make me be a part of that. You can't make me believe like you or actually participate in what you're doing. A girl wants to get up and pray at a football game because the kids elected her. And she can sing a song, read a poem or say a prayer. It is her choice. She ought to have the freedom to do it however she wants. Just because one kid in the audience says, well, I don't want to have to listen to a prayer. That is not having to participate in a prayer. You are just having to understand that we don't have life, liberty to never be offended in this country. These guys didn't say that, right? They said life, liberty and pursuit of happiness. We are going to be offended by other people. I am going to have to listen to somebody say a prayer I don't like or worship some God I don't agree with or participate in some activity I don't agree with. Man, that's freedom. We ought to be strong enough in our own faith or our own belief system to not be so easily offended and run to the nearest government official, try to shut down somebody else's activity. That's minority. Forcing their views on the majority.

Myth number four: Only judges are capable of determining constitutionality

Last one, Myth number four. Only judges are capable of determining constitutionality and their primary responsibility is judicial review. Is the court the final arbiter? Here's the what the Supreme Court says on their website. As the final arbiter of the law, the court functions as guardian and interpreter of the Constitution. Are they the final say? Are they the only ones that can determine constitutionality? Do the other branches have any say in the constitutionality of a law? Encyclopedia Encarta Encyclopedia says the Supreme Court's principal powers judicial review, the right of the court to declare laws unconstitutional. Well, here's Madison. I mean, if there's any expert that came out of this room. Constitution. Is Madison right? Father of the Constitution? He said the argument is that the legislature itself has no right to expound the Constitution, that whenever its meaning is doubtful, you must leave it to take its course until the judiciary is called upon to declare its meaning. It's kind of like when President Bush signed the McCain Feingold law and he said, I think it's unconstitutional, but we're going to have to wait for the court to decide. No, wait a minute. The president has constitutional arms and can say, I'm going to veto the law because I think it's unconstitutional. You don't have to wait on the court. Each branch has a voice. Madison was saying, that's silly to wait on the court. He said, I beg to know upon what principle it can be contended that any one department draws from the constitution greater power than another in marking out constitutionality. The father of the constitution says each branch has power to determine constitutionality. Nothing has yet been offered to invalidate the doctrine that the meaning of the constitution may as well be ascertained by the legislative as well as by the judicial authority. And here's why. Elbridge Jerry is one of the guys that sat here and signed the Declaration of Independence. In fact, he's the guy we talked about last night, the little guy that got up and was told that he was going to swing in the air for an hour or more before he was finally dead by colonel Harrison over there. Here's what Elbridge Jerry said. He said, it's quite foreign from the nature of the judiciary's office to make them judges of the policy public measures. Let's back up and read that again. Think about what he just said. It's quite foreign from the nature of the judiciary's office to make them judges of the policy of public measures. He's saying the court has a proper role, but it's not to be the judges of the policy of public measures. That's why we have legislators. A judge is not accountable directly to us. We want the legislators deciding what our policy will be on. You pick it. Abortion, gun, rights, campaign finance, health insurance, you name it. Any of those public policy issues. Elbridge Jerry's saying that's just kind of foreign to let a judge decide that. Because a judge is not answering to the people. A judge is not out there campaigning among the people to find out what the will of the people is. A legislator is. He's saying the legislators ought to be deciding those issues. They ought to decide whether or not something is actually within the purview of the legislature and the Constitution. Jefferson said the same thing. He said the opinion which gives to the judges the right to decide what laws are constitutional and what not would make the judiciary a despotic branch. The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. He's saying if you give them the final and only say on determining Constitutionality going to be despots. We're now going to be ruled by an oligarchy, he said at one point. And the reason is you got nine people now that have the final say on everything in the whole country. They're unelected. And we're not letting the 535 in Congress and the one at the other end of Pennsylvania Avenue be the ones to have a voice in that as well. Hamilton said the legislative department is more immediately the confidential guardian of the people's rights and liberty. So what you said earlier about they have to answer more quickly to us is exactly right. So the legislative department is the right place to decide the policy of public measures, not the court. And so when you take the legislative department out of the picture and say no, it's what the court decides, that's the final say. And these other voices and, opinions mean nothing. You end up with a real problem. You're ruled by despotism. John Roberts got this right in the healthcare decision. He said, members of this court are vested with the authority to interpret the law. We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation's elected leaders who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices. Now, I know that's a hard pill to swallow. I'm not a fan of the health care law. I personally think it's unconstitutional. What he's saying is you guys knew when you elected Barack Obama and you elected a Congress that was for national health care, that that's what you were going to get. So there was no question of what we were going to get. And he's saying it's not the court's job to save you from yourselves. If that's what you choose, that's what we the people chose. If we the people want something different, we got to choose something different. He's saying it's up to you. It's not up to the court to save the day. Now, obviously, I think he shouldn't have created a way to make it constitutional by calling it a tax instead of the commerce clause and all that.

Rick Green: Courts are not the only ones that can determine constitutionality

Agree with what he did there. But I do very much agree with what he's saying right here, that, hey, we. We're the ones. We the people make the decision in who we elect. I don't think we were fooled. We knew exactly. When I say we, the nation, knew what it was going to get, we got it. We didn't like it. Now you got to turn it around if you don't like it. So the court is not the only one that can determine constitutionality. The other branches get a say in that as well. And you might say, well, okay, Rick, well who gets the final say? Or what do you do? If Congress passes a law, president signs it, the court says it's unconstitutional. How do you respond to that? Well, exactly like Hamilton said in the Federalist Papers, he said if Congress passes a law and the court overturns it, on constitutional grounds, then the Congress can come right back and pass it, maybe change it a little bit, if they feel like something the court said made sense, or pass it just like it was before. And if the president signs it again, two out of three win. If the President says no, I actually agree. The court got it right. I was wrong to sign that before and I learned something from their opinion. I'm not going to, I'm going to veto it and I'm going to side with them. Two out of three win. So it, it will work if everybody will use their constitutional arms. In fact, that's happened before. The partial birth abortion ban was initially ruled unconstitutional. They came back through and Congress passed it again. And now it's the law of the land. That can happen. But both, all three branches have to understand their proper roles. You know, I'm picking on the courts here, but the court, Court also has to push back whenever they're being ramroded. So the real the folks that aren't using their constitutional powers right now though are the executive and the legislative. They need to be using those constitutional arms of self defense. They need to be weighing in on constitutionality, not just assuming the court can be the only one. So very quick review. Myth number one, we don't have three equal branches of government. Which branch is dominant? Legislator. Which one's weakest? All right, myth number two, they don't are not appointed for life. What are they appointed for? Good behavior. I personally would like to see a constitutional amendment that defines that and says they're appointed for 10 years or 12 years or whatever you want to make it. So there's that clear day of accountability to have to be reappointed or else not on the bench anymore. But at this time, it's for good behavior. We just need to recognize what good behavior is. Myth number three, the primary responsibility of the judiciary is to protect the minority from the majority. Nope. The Bill of Rights protects all of us, regardless of whether you're in the minority or the majority myth number four. The courts are not the only ones that can determine constitutionality. Each branch has the right to do that. The court is accountable. It's accountable to us through the other branches, not directly to us, but to us through the other branches. Here's Sam Adams, John Hancock and John Adams. All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are their substitutes and agents. That means that those people in government are our substitutes and agents and are at all times accountable to them. We've got to have accountability in all three branches. James Wilson, second most active member in this room in the Constitutional Convention, he said, here the people are masters of government. Elsewhere, the government is master of the people. I want to maintain the people as the master of the government, not the other way around. The only way we do that is what Rhett started off telling us last night. Consent of the government. We, the people, had to get up and give or refuse our consent. We've got to be engaged in this process, and that includes letting our voice be heard on how the judiciary should work. And the only way that's going to change, folks, this is not going to be an overnight change in one election. It's going to take a generational change where we the people study the Constitution and understand and know what the proper functions of each branch are. And then we hold those representatives accountable. And we start saying to our members of Congress, do your job. Those aren't just rights that Congress has. Those are duties that Congress has. Congress is supposed to reign in the courts, and if they don't do it, the court is going to stay out of control. So we've got to get some good people elected. and there are a lot of people there that want to do this. We just don't have enough members. What we need are some more members of Congress that have enough backbone to make a freight train take a dirt road. You know what I'm saying? That's the kind of backbone we need. We need some good, bold leaders in Washington, D.C. to lead on this issue. So there we are on the courts. When we come back in our next section, we're going to talk about the Bill of Rights. So we're going to go through all 10 of those and talk about those specific guarantees. Stay with us. We'll be back with more on constitutionalized. The, just powers of government can only come from the consent of the governor. That's you and me. That's a lot of myths of the Judiciary, and I think most law students come out of law school believe in all those things. Most Americans believe, believe those four myths. So hopefully we're busting those myths, getting to the truth so we can get back to the, world.

No topic in the Constitution covered as often as impeachment

>> David Barton: We talked earlier about how that our public education now, our government education, not public education, our government education is so poor that we don't have a clue what that is. I mean, that is one of the difficulties we have is we don't know the Constitution. We especially don't know the role of judiciary. We've been told otherwise. But I want to go back to something you said in the second myth, talking about federal judges have lifetime appointments.

>> Rick Green: Yeah. One of the simplest ones, plain language right there in the Constitution.

>> David Barton: Clearly they do not.

>> Rick Green: Yeah.

>> David Barton: then how do you get them off their bad behavior? You listed some examples and that deals with impeachment. And people think impeachment is an extremely high bar to reach, extremely hard thing.

>> Rick Green: Congressmen are even afraid to draft them impeachment because they'll be labeled some, you know, radical because it's so unusual.

>> David Barton: Now just, you know, if we go back to that big battle plan view, that 30,000 foot view, there is no topic in the Constitution covered as often as impeachment is.

>> Rick Green: Really. So if you look at the big picture, this is an item we don't do anything on. And this is covered with, man, we.

>> David Barton: Treat that like it's radioactive, like it's going to blow up on us if we touch it. And it was so important that they put it in there five times. Now the other thing that's happened is it's in there five times. But what has happened is our law professors, our judges have raised the bar so high that we don't even try to go after them anymore. And it's because that high crimes and misdemeanors. Now, we've talked in previous sessions how important it is to use the language at the time it was written, not the way it is now.

>> Rick Green: So if I'm in that room, if you're in that room, if I'm in that room with those guys and we're debating this, what does high crimes and misdemeanors mean to me back then?

>> David Barton: We talked in a previous, session about Noah Webster and the impact he had on the Constitution, and especially what his dictionary did in defining words. So here's the guy who was there at the time. He's a founding father, he's meeting with all these guys. They take his language, put it in the Constitution. If he tells us how the word's defined, then we're going to know how.

>> Rick Green: they I would say that's a pretty good source.

>> David Barton: So this high crimes and misdemeanors our.

>> Rick Green: Folks out of time for today. That was constitutional live. We were learning from today. That's our full Constitution course. You can get [email protected] you can also get the rest of today's Lesson on Article 3 on the on the courts. All of it is in that course. So check that out. Today you can sign up as a coach for free and get access to all of our Constitution courses for free. So check that out [email protected] thanks for listening to at the Core with Walker Wadman and Rick Green.

Preborn is fighting a spiritual battle to save innocent preborn babies

>> Rick Green: Have you ever wondered why our society is so ravenous to abort babies? Well, according to a former Satanist, the demonic forces have a bloodlust for the innocents. They sickly believe that the blood sacrifice empowers evil. Make no mistake, we are fighting a spiritual battle as we protect the most innocent among us. Babies in their mother's womb. PreBorn stands on the front lines of this battle. Their network of clinics are positioned in the highest abortion areas, often next to abortion mills where unspeakable evil takes place every day. PreBorn offers God's love and life to protect hurting women and precious preborn babies. Please make your most generous gift to empower good and rescue precious souls every time a baby is Saved, which happens 200 times a day. Good conquers evil. For just $28, you can sponsor an ultrasound that doubles a baby's chance at life. Donate securely today. Dial pound250 and say the keyword baby. That's pound250 or go to preborn.com preborn.com.

>> Speaker A: The views and opinions expressed in this broadcast may not necessarily reflect those of the American Family Association or American Family Radio.

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