How to draft legislation 2011/11/16

okay good evening this is the November 16th

2011 Constitution meet up in Austin Texas I'm John

Roland and uh we're going to have several things to discuss this evening first of all as members of the

group will know if they were reading their email um the SU court has finally

decided to take an Obamacare case and in particular they took the

case for which the lead uh litigant are the National

Federation of Independent businesses who also have what I consider

the soundest arguments uh the lead Council for the

nfib is Michael Carvin uh with whom I correspond

regularly and he has a brief which makes many of the same points I'm finally

making what I'm trying to do now is to get um people who fire amikas briefs in

the case to uh reiterate one main

point in as many different ways as they can and that is that the

language carrying into execution in the the necessary and improper

clause which is a restriction on Powers necessary and

proper and has never been interpreted by the

court should be interpreted to mean only to make a certain kind of legal effort

and not to do whatever is necess is might be deemed appropriate to get a

desired outcome so it's about effort not outcome

and I want everybody to just repeat that over and over and over again effort not

outcome because if that can become established in the Justice's

minds and at least five of them then we could be well on our way toward where

unraveling this U unconstitutional federal

government so uh everything's going to really depend on that so I have been busy corresponding

with everyone I know who is likely to be filing an amus brief in the case and

trying to uh encourage them to make those arguments uh even if they know everybody

else is going to make them because when you're dealing with with Justice of the Supreme Court they're just people like

anybody else they respond to repetition and if they can hear the same

thing being said by almost everybody in many different ways it may

resonate now we don't know yet when they might

hear the case however one thing was unusual about it they scheduled 5 and a

half hours for oral arguments that's about the most time that the

Supreme Court has scheduled for or oral arguments since it began scheduling for

oral arguments it used to just be done informally but in the last uh most of

the Decades of this century and the in the last um they schedule an a certain

amount of time and they generally stick to that pretty severely

so uh they're going to be hearing the case comprehensively hearing most of the issues and

uh hopefully by sometime in the spring uh we should get the hearing and

maybe by late spring get a decision

now

um as I'm sure some of you have begun to notice

um I have been adding ads to the constitution.org

website have resisted doing that for many years ever since you know the

beginning and uh because I didn't want to clutter it with ads I didn't think they really fit the uh the the Dignity

of of the site however the reality is that we have just been not been getting enough

donations and uh we needed the ads to uh generate enough Revenue to allow us to

continue to keep the site online to build and maintain it and to cover some

of our overhead so uh uh revenues from it are

increasing slowly um we get about 45 cents for

every click on any of the ads on it uh people don't have to buy anything it's

just enough that they click on it but if enough people do uh you know on a regular daily basis

then it could uh enable us to go on and do bigger and better

things now uh one of the things I wanted to talk to you about here

today on my candidacy site John roland. net and I am now formally

filed as a candidate for the nomination of the libertarian

party for the State of Texas and the for the US Senate uh I have begun

including uh a number of proposed bills and what I intend to do uh as

the months prede is to build is to include more and more

bills that are at or near completion as

bills words all of the ones you see here could be dropped into the

hopper after being signed and co-signed by a co-sponsor the

second uh as is they would not really need any

further or much further further work of course further work could be done in committee but uh it's generally better

when you introduce bills in Congress to introduce them in a form that's as near

as complete as possible if you can anticipate all the things that anyone

might want to change in them and provide ways of covering that

so you know you don't leave any holes you don't need anything leave anybody for anything to try to fill

in and uh then when you introduce it to provide solid

justification for all everything that you do have and answer all the questions

and objections anybody might have then you H off a lot of the opposition at you

know the outset of course there'll still be some who are going to object to anything uh just on general principles

uh but at least you don't want to give them more to pick on than it's absolutely

necessary and there's a fine art to doing that when I went to Washington DC in

1970 to lobby for various uh public interest causes as an unpaid volunteer

lobbyist I didn't go with money or votes what I had was skills

and so I volunteered to help members of Congress and the way I earned my access

and influence was to help them drive or review legislation started out by them asking

me to look over bills to see to advise them on whether they should support them

or if any if they needed changes what changes were needed so I was busy reading over bills

and finding flaws in them and advising the member but they the members also had

some legislation most of them that they wanted to introduce but they weren't satisfied

with the work product they got out of either their own staffs or the

Congressional resarch service which is a kind of a uh agency within Congress of

Staff members that does nothing else except do research and draft

legislation well the problem is that they don't always get it right the members can send them his

specifications and they don't quite get it or they're in a hurry or whatever and what they send back to the member

is very often just the opposite of what he wants so um one of the things I

learned in my more than two years stay in DC was that the way that lobbyists earn

most of their influence is not contrary to popular opinion by getting donations

for members they certainly do a lot of that but the main way they gain

influence is by doing the staff work often on bills for which the

lobbyist has no professional interest whatsoever but because they have the

expertise that are often able to craft legislation that no one else around is

has the skill to do and once they do that uh then the congressman will answer

their calls will'll visit them we'll listen to what they have to say and so forth so that is the key to building

influence and Power in Washington is being able to do do the work

competently so if it were not for the lobbyists Congress would not be able to

turn out even a tenth as much legislation as it does and most of what

they did would even be worse than what they do they turn out now

um there are more than 20,000 bills introduced in each house of Congress

every year only a small number of them ever even get a hearing much less get

passed but they so clog up the system because PE somebody has to go

through and evaluate these you know do I support it do I oppose it do I offer

amendments uh do we have a hearing on it uh should we pass it out a committee you

know what should we do with it this is a tremendous overload on what is

essentially a bottleneck the members and there's immediate staffs are a bottleneck a member of Congress only has

about 18 staffers and half of them are administra sometimes more than half so

the administrative staff takes care of things like constituent correspondents arranging meetings that

sort of thing and legislative staff takes care of legislative

business and there's a fairly clean divide between the two in most

offices and of course I M work with legislative

staff so I learned how to gain that kind of

influence now as it happens most of the legislation I held right were for things

that also interested me but uh I was prepared to write

legislation on other things as well so I learned the mechanics of how

you draft legislation now the first thing to realize is

that most statutes are restated and

codified into the United States code this is done by a an office in the

House of Representatives the office of the law revision Council it's basically a bunch of law

staff lawyers who are responsible to the US House not to the Senate and what they do they go through

they extract Clauses from actual bills uh number them sometimes reor them

and put them into the United States code now what you'll what often happens

in court cases and in other situations people will cite the United States

code not really realizing that there's a statute behind that that is the real law

Congress does in fact sometimes pass provisions of the US code

directly increasingly over the years bills are introduced which essentially

amend the US code so they write to it directly they add Clauses they amend

Clauses and so forth but uh there is also legislation

that never Finds Its way to the US code or if it does it does it in things like

delions where Provisions are are

deleted so when you're drafting legislation if it

impacts existing legislation then part of what you have to do is to go through the United States

code and find any conflicts and bring them out and put them in the

bill so it would contain Clauses like to amend such and such a uh you know

article in section uh to read such and such or may

maybe just delete it so you have to scrub the existing us code which you

means you need to know where to find things um and in a few minutes I'll I'll

show you an example of some of how that's done so uh what what my

lead act here is is the uh Firearms infringement repeal

Act

see I can Center it

here and of course this is written for the United States Senate since that's the house I'm running

for so this there's a standard

format for bills uh both in the US Congress and in

most state legislatures if you'll see on my other site uh I have other bills for the US

for the for the Texas uh legislature in which I followed the format for the

Texas legislature uh you may recall from earlier discussions where I have

proposed OS amendments to the Texas Constitution and I follow a format there

the four amendments to the Texas Constitution but this one is just

a a ordinary statute except what it does is it repeals

stuff now if uh you can direct the camera down at me here for a

second you won't be able to see on the screen anyway so I'll just talk your way

through it if you go to uh J N rol and.

nef Firearms you can get this so this would be the 101st 112th

Congress first session and I leave I have an S period

and a blank that's where the clerk of the Senate would fill in the number

after a number has been assigned and then I have a lead

sentence it says here states the purpose to retroactively repeal certain

unconstitutional legislation concerning Firearms now that word retroactively is

likely to be one of the most controversial uh

but it is an interesting choice and you might have to you might want to in

discuss it further Mr Roland of Texas introduced the following bill which was referred to

the Judiciary Committee now I already know what committee I would go to part of what I know about legis

drafting legislation for for Congress is the committee structure so I know that you know once

it was introduced it was would be referred

uh and then here's where the actual bill starts a bill to to retroactively repeal

certain unconstitutional legislation concerning Firearms then there's a the lead CL

phrase here being enacted by the Senate and House of Representatives of the

United States of America in Congress assembled

section one short title this act may be cited as the Firearms infringement

repeal Act of 2010 well of course I need to update

that and now it would be 2012 this was written by the way at a time when I was contemplating uh uh

running in a special election uh to replace a resigned K

Bailey Hutcherson but she decided not to resign so we we moved up all the dates

two years so section two is

findings the Congress finds a certain legislation concerning Firearms including the National Firearms Act of

1934 the gun control act of 1968 the Brady

Act various amendments and additions to these those act uh those acts to be and

have been unconstitutional from inception now it's important to realize

that besides the main acts that I cite here the

National Firearms Act and the K Control Act of 68 there have been a lot of amendments

or Provisions in all kinds of legislation that have introduced gun

control Provisions for example the lenberg

amendment uh which uh uh gives us a lot of trouble uh was part of the general

spending Bill Omnibus spending bill

so section three repeals the following statutes or

amendments are hereby repealed retroactively to their respective dates of

enactment uh the first is 26 USC section

5841 to 5845 and

5861 there's supposed to be a comma in there I need to correct

that um that is basically the National Firearms Act of 19 34 as

amended uh the second is 18 USC by the

way 8 26 USC means it's a tax act the National Firearms Act of 1934

was a tax statute it imposed a $200 tax on machine guns and pirate sought off

shotguns and then tried to make it illegal to possess an on which a tax had

not been paid and then made no provision for collecting the

tax so the Government tried to get around the lack of authority to forbid

certain types of firearms by imposing attack on them than uh uh making it illegal to

possess the thing if it wasn't taxed and to refuse to collect the TA the tax if

so even if you tried to pay the tax you say you know I'm here to pay the $200

tax and says oh we have no budget to collect to accept payments of taxes but

we do have a budget to prosecute you for being in possession of an illegal weapon

so you're under arrest uh and

uh that the constitutionality of that was uh litigated in a famous case Rock

Island Armory in which the initial decision was correct and later was

overturned on appeal but but you can find on our

website The Rock Island Armory case how it was how it was initially decided

correctly and later uh was overturned then these next two

concern uh parts of the criminal uh statutes the criminal code

18 USC is a criminal code and it's sections 922 to

924 926 926a 926b 926 C 929 and

931 and I have an incomplete here's where it's

not quite complete yet all statutory Provisions encoded in and here's where I

would add any additional sections I may have overlooked up

here and then I have another one 18 USC section 842

p and again I've left a BL a blank here to add some additional

ones now section four

remediation a convictions to be set

aside and here's where we get interesting uh situations see part of

the problem what a lot of people don't realize that they want that they're it's easy to say let's just repeal it

all the problem is that there's been a period of time during which it was being

enforced first and it's not enough to just repeal it going forward you need to

deal with the situation that occurred uh the results from it having been

enforced uh for a long time so you can't just cut it off you

have to deal with the Legacy that is has

created so in section A or I provide convictions to be set aside any person

convicted under any of the above repeal Provisions shall be entitled to have his

or her conviction set

aside including any continuing disabilities removed except as provided

Below in section five upon application

therefore to any US court of competent jurisdiction

now there's it it provides for an exception and later on we're going to

examine what that exception is and why it's needed there section B compensated compensation

for wrongful conviction any person convicted under any of the above

repealed Provisions shall be entitled to receive

compensation at established rates for wrongful conviction including any

attorney feeds and court costs now one could argue that there should be

an amount name here but there is an established rate for such things and I

would prefer to have that uh handle in another section of the code now one of

the things I might do is refer to that other section at this point uh where it

would spell out exactly what the standards should be now here's where we get to our

exception section five exception for disability removal removal of a

disability to keep in bare arms is not required under this act if any of the

following conditions have been met a the disability was imposed by a

court of competent jurisdiction for actions committed on a

territory for which Congress has exclusive legislative

jurisdiction and either one it was imposed as part of a

sentencing order of the sentencing order upon

conviction of the defendant for an act committed on that territory and as

prescribed in the statute under which he or she was

convicted or two it was imposed upon unanimous verdict of a jury of

12 on proof Beyond A Reasonable

Doubt

proof Beyond a reasonable doubt that the defendant poses a threat a clear and present

danger to himself or others if the right is not

disabled now what what is what is that intended to do well first of all it

recognizes that there may in fact be constitutional authority to prosecute

someone and the District of Columbia or other Federal Enclave

territory just not on state territory um the second is that uh it

provides for disablement of the rights if he's proven to be incompetent or a

danger to himself and others now in fact this will apply to almost no cases that

I'm aware of um because in almost every case the

government has pursued a criminal prosecution and just use that as an

element in the sentencing however when we remove the

criminality of the original conviction we may still have a situation

where someone is crazy or uh you know

you know or has some other disability you know that would

make it unwise for him to be to have his uh disabilities of uh uh carrying the

right to keep and fair arms restored but in almost every case it

would require a re hearing uh to establish

that and of course the federal government has no authority to on that

subject except on federal Enclave territory so uh not stated in here although

implied is that some of these cases might have to be dumped on the

states and there would need to be an orderly procedure to allow the state to decide whether it wanted to prosecute

for the same of crime u under state

law but uh the federal government at least would be uh releasing all these

guys and discharging them from their criminal convictions and even

compensating them so the states would suddenly have a lot of cases dumped on

them and probably would only want to hear or perhaps even want to try or even

be able to try more than a small part of them so this is the these are the kind

of considerations that one has to uh make

in drafting legislation of this kind U if you don't do this then you're

immediately going to get a flood of opposition saying well what happens if we release all these guys you know a lot

of them are dangerous are they just going to be allowed to get out go out on the streets and commit crimes with their

guns now uh and you need to be able to have an answer that no uh we do have

Provisions here for the states to take over the case and file and try their own

charges if they care to do so so you're you're trying to head that

objection off at the pass as it were now as I pointed out this bill is

not really quite finished it could be filed in this present form but it would require a

little more work and uh before I actually file it I

would probably want to do all that work you know finish the the sentences that I

you know left hanging there and perhaps uh spell out a few more things about you

know handing off jurisdiction to the states and that sort of thing but the

general outline of the way it would have to be done is is laid out

here now you often hear members of Congress arguing on the campaign

trail that they would not or promising that they would not impose any more gun control

legislation you you do not often hear about them saying I I would repeal existing

legislation and you certainly don't have an examples of members of Congress

filing a bill like this there's been no bill like this file by

anybody even though there are plenty of members of Congress who of course according to their rhetoric would seem

to be in favor of this kind of thing and of course you have to ask why

have they never filed anything like this is well I have my

theories but I would like to have the my theories put to a test by getting my

myself elected having me file this and seeing what would

happen I think it would be very very interesting that's where we would find

out what members of Congress really are

proun and of course I have uh other

legislation like this not all of it on my website yet some of is still in early

stages of development but uh here's a criminal jurisdiction act this is sort of

interesting in several

ways a bill to to find the territorial boundaries of the United States United

States penal legislation

Now by original understanding there were three kinds of

jurisdiction territorial personal and subject

matter uh that was understood from the very beginning throughout the 19th century through much to the 20th century

but in the 20th century if you start examining the law books the law

dictionaries the you know the the legal literature you

find uh an attempt by The Establishment to

write territorial jurisdiction out of the

law some say oh it's just a form of subject matter jurisdiction no it's not

uh or uh it says oh well it's not really that important or or well you know just

you know generally to deprecate it well the reason for that is because the The

Establishment at the federal level has been trying in effect to ex extend

Federal jurisdiction to everywhere in the universe not just throughout all the

states but or all the oceans but in every country

everywhere well nobody elected them to be the world government and certainly not the

universal government but they found uh restrictions on territorial

jurisdiction to be inconvenient so they just have been systematically trying to

ignore it or write it out or uh deprecate it or do whatever they can

to avoid having to uh be subject to those kind of

restrictions uh the situation can be understood I like to provide a kind of a

thought experiment uh centered on the four

corners area where New Mexico Colorado Utah and

Arizona meet at a point in this

hypothetical uh Jim is pursuing

Bob with a gun Bob is running away trying to get away from

Jim and uh they go circling

around the Four Corners now you know there's a sort of a m of

stand there and a marker with an x on it

so you can walk up the ladder and look down and take pictures of the of the boundary

Mark so uh Jim is firing his gun and finally

he fires his gun and hits Bob

now at the time that uh

the gun is fired that fires a fatal bullet he's standing in

Colorado his head is in Utah his hand holding the gun is in

Arizona and poor hapless Bob is in New

Mexico when he was when he's hit but he doesn't die right

away he managed to cross fall off and get to Arizona I mean to Oklahoma where

he dies and Jim flees to

Texas now in he's caught in

Texas and you have requests for extradition by several different

authorities New Mexico wants it Colorado wants it Utah UT wants him Arizona wants

him Oklahoma wants him and two Indian

tribes want the navos and the fuds because it's part of their

reservation so you got uh five states two Indian reservations and what is Governor Perry

supposed to do with those extradition requests now he knows that

whoever uh um he sends the guy off to the others

are going to sue him so he goes to Greg Abbott and of

course Greg Abbott doesn't know what to do you know so he turns to you know one

of his staff and they're not sure what to do and

uh finally one of them has a bright idea let's ask John

Roland so they tell him so I they describe the facts to me and they say Utah has

jurisdiction now why is that because under

the common law understanding of where a crime is committed is committed where

the act the mental Act is

committed where five El there five elements of a crime

men's Rea uh guilty mind actus Reus the actual

act uh causation

harm and concurrence concurrence means that actus

men Rea and actus Reus have to occur at the same place they don't have to be at the same

place the harm occurs so so Oklahoma is out of the picture he only died

there um Utah has jurisdiction because his

head was in Utah and that's where the mental Act of

that would irreversibly caused the injury

occurred and course we can presume that some people that were around Witnesses

with video cameras so we can get exact triangulation of where all of these

events took place now you could construct a

similar uh hypothetical let's say that

uh uh somebody

uh fires a

uh gun from uh let's say

Mexico and hit somebody in Texas who would have jurisdiction would Texas no

he would have no real authority to extradite the guy although they probably try to do it

anyway because under the law of Nations the nation who on from whose territory

the offense was committed has jurisdiction and and if uh a guy was on

the boat in the middle of the Rio Grand River right on the boundary line so you

couldn't be sure then there could be an argument as to who had

jurisdiction um but if you thought he was in Texas and he fired a shot and a

guy in New Mexico got hit Texas would have

jurisdiction so those are the principles the original principles of uh that

Define the territorial jurisdiction of a crime these these go back hundreds of

year hundreds and hundreds of years but they're being ignored in modern

times now the federals the feds try to seize jurisdiction over any crime that

occurs anywhere for example they prosecuted Manuel Nora for crimes committed in

Panama of conspiring to smuggle drugs into the United

States well the only trouble is leaving aside the fact that there is no Authority for the crime

itself uh he wasn't on US Territory when he did it so strictly speaking the US

government had no territorial jurisdiction it was

unconstitutional and that's true of a lot of uh crimes that the the federal

government prosecutes so one of the things this bill tries to do is to deal with the

situation and what we're doing here is we are clarifying the the

boundaries of criminal jurisdiction territorial

boundaries section two findings the Congress finds that certain legislation

concerning crimes to be and to have been to be and to have been

unconstitutionally applied to in exclusively State territory and

that the territorial boundaries of penal

jurisdiction needs to be defined section three enactment and

repeals with the following exceptions all criminal or penal statutes shall apply if at all only to acts committed

on territory outside of the exclusive jurisdiction of the

states which excludes enclaves created under the United States

Constitution Article 1 Section 8 Clause

17 so in other words it exclude state territory from federal

jurisdiction and then it lists the various crimes

treason counterfeiting piracy felony on the high seas offenses against the law

of Nations as of 1787 because that froze the meaning of

it in time violation of military or militia discipline enslavement violation

of Rights by state agents agent or deprivation of the privilege of voting on any of the grounds barred by

amendments to the US Constitution and three piracy shall

consist only of warlike acts committed by a non-state actor against persons or

property of a country foreign to him letters of Mark and

reprisal make the person whom they are issued a state actor and under

declaration of war all citizens are to be regarded as state actors with respect

to the foreign State defined in the Declaration the territorial jurisdiction

for piracy is unlimited four the territorial

jurisdiction for offenses against the law of Nations is unlimited five the territorial

jurisdiction for treason is unlimited but personal jurisdiction is limited to

citizens of the United States words a foreigner can't be commits

treason the following statutes or codes are hereby amended retroactively to

their respective dates of enactment to make clear the territorial limits on their

applicability then I have a gap here and this would be filled in with

details now again section four of remediation a

convictions to be set as aside B compensation for wrongful

conviction and then in section five I have a different kind of transitional Provisions from the previous

Bill within number one within 180 days of the enactment hereof the secretaries

of state of the interior

and the Attorney General of the United States shall report to Congress Congress

on a complete inventory of all enclaves properly created under United States

Constitution Article 1 Section 8 Clause 17 incl excluding any that were not

properly seated by Act of a state legislature that specify the meats and

Bounds of the parcel now what is that last clause mean well during the 1940s a lot of States

seated jurisdiction to any parcel the federal government might choose to

buy without specifying the meats and Bounds a lot of military bases and cour

houses got set up that way that's unconstitutional the legislature has to

specify the boundaries so I what I'm doing here is

uh retr seeding all those Parcels unless or until the state

legislature uh re uh uh seeds them uh with meets and downs

descriptions of each number two all enclaves not seed by

state legislator State legislative act that specified the meats and Bounds shall be

deemed to have been retroceded to the state unless the state shall

correct it session with a meets and Bounds

description within 180 days of receipt of the inventory

report three within one year of receipt of the inventory

report the boundaries of all federal enclaves shall be clearly marked with

signs monuments fences painted lines or other marks that inform any person

crossing the boundary of which jurisdiction lies on each side of the

line in other words creating signs saying you are now entering Federal

jurisdiction you are now entering State jurisdiction and leaving Federal jurisdiction so there would be no doubt

in anybody's mind what kind of jurisdiction they were under and for an amount of 100 million

is hereby appropriated to pay the costs or marking the boundaries now that might not be enough

but it ought to be enough together with that the rest they can take the rest out of their administrative you know our

maintenance budgets so this accomplishes several

things not the least of which is it alerts people to the fact that for a

long time the jurisdictional boundaries have been obscured and once the signs were erected

people would be regularly alerted to what jurisdiction they were in and

therefore invited to inquire you know what law as am I subject to here as

opposed to over there and not automatically assume that all federal laws apply everywhere which

they don't so uh part of the purpose of this

is to build public awareness of the limits of the law

in particular the territorial limits so uh it's intended to accomplish

a number of things and he throws in a an expenditure to sweeten the pot for uh

particular members of Congress who have such enclaves in their district for

might create a few jobs for their constituents so as a old friend of mine

Jesse quar San Antonio once put it nothing happens in politics unless you

first create an Avenue of corruption he said a Channel of

corruption so sometimes you have to sweeten the pot with a earmark here in

order to get a needed reform made but that's a small price to pay if it's

made so these provide a couple of examples

of uh leged bills now here's one that really is ready to

be dropped in nothing more is needed these are amendments to the US

Constitution and what I've done here okay the for standard

form although most resolutions are proposed as joint resolutions that is not

correct uh the president does not have to sign a uh a resol resolution

proposing an amendment to the Constitution and a joint resolution is supposed to be signed by the president

so a concurrent resolution is where both houses of Congress AG pass something

jointly but does not require the president's signature and so that is appropriate for

amendments to the Constitution and the this leads off proposing clarifying amendments to the

constit ution for the United States resolved by the Senate and House of Representatives of the United States of

America in Congress assembled 2third of each house concurring

therein that each of the following articles without the numbers and titles

are proposed as amendments to the Constitution of the United States which shall be valid for all intents and

purposes as part of the Constitution when each is separately ratified by the

legislatures of 34s of the several States within seven years after the date

of its submission for ratification now that's now then I

proceed to just list all of my proposed amendments uh the original 12 proposed

amendments 10 of which became the Bill of Rights were proposed in in much this

a format much like this so you don't have to have one resolution for every uh

proposed amendment Congress will have plenty of opportunity to debate whether to include

each one but uh I go ahead and throw them all in in one bill and then let them

struggle with it because of course part of the purpose of submitting a bill like this is to

Rally public support and initially I would hope that

enough people would like some of these to Rally behind support of them and of

the and spillover for the bill as a whole and if they opposed any of them

they could oppose them without opposing the rest of the of them so this would be a way of stirring

the pot of a public debate and which would hopefully even if they were never

proposed or even if they were never ratified the debate itself is likely to

be extremely useful in moving public discourse in the right

direction now I have another concurrent resolution like this for uh remedial

amendments and another for substantive amendments those are amendments that would actually change something in the

Constitution but this first group is only to clarify the second group is to correct

mistakes made in the original Constitution which most people could probably agree or were

mistakes and uh the third is to deal with situations where uh you know the

Constitution just doesn't cover it and we've tried to cover it in awkward ways

that are unconstitutional and this would provide an opportunity to actually make it

constitutional now I might not support all of them myself I tried to write them

in a way that I could support them but uh again this has educational

value and uh I suspect that if I were to introduce all of these in the first few

weeks after taking taking office they would tend to dominate public discussion for the next several

years so right off the bat by using a

kind of a shotgun approach um I would try to change the

whole political dialogue and hopefully that dialogue

would uh feed on itself and build on itself and you know build public awareness build public support

uh and get people debating in the in the hallways and the restaurants and the you

know mess Halls wherever anybody gathers uh to uh uh consider uh the merits of

these things and we might have another constitutional moment like the original

ratification of the Constitution so anyway uh that's my

uh uh main points to be made this evening does anyone have any

questions in all of your activity one thing that's

uh very prevalent in the news is our beloved War on

Drugs what part of this activity that you're

proposing would be able to shed a light on the horrors

of that misregulation okay the War on Drugs is based upon two Clauses the Commerce

Clause and then the necessary improper clause and the basis for it uh began

with the case 1819 case of C

Maryland uh which was about uh the national bank opening a branch in

Maryland and Maryland trying to tax it and the Chief Justice Marshall for the

Court ruled that uh it could not tax it because it was an instrumentality of the

central government now the fact that it was also a commercial bank which has happened to

hold Federal uh money uh collecting taxes you know

receiving tax Collections and dispersing funds and so forth uh he construed to make it all

federal instrumentality uh I happen to think that was

incorrect uh the proper decision would have been to separate out its handling

of public funds from its handling of private funds but if it was to be taxed it

should be taxed on the same basis that Maryland would tax it one of its domestic Banks so it it couldn't

constitutionally impose a greater tax on an out ofate Bank than it could on its own Banks had to tax them

equally anyway in his opinion Marshall said in effect that

necessary and proper only meant convenient

and ever since then there have been a succession of opinions that has uh crept

forward a little bit every time uh to expand Federal

power the the key one was wicker V filburn in 1942 in which a farmer was prosecuted

for growing his own and consuming his own corn that was subject to price and

production controls and the argument in the opinion was that

uh eating his own corn had a quote substantial effect on interstate

commerce and therefore it could be not only regulated but

criminalized well in fact there's nothing in the power to regulate that

implies a power to criminalize uh the first statute criminalizing anything under the

Commerce Clause was was uh an 1884 statute on the shipment of Tainted meat

in interstate commerce which was allowed to stand and that became the the uh the foot in the

door for that line of reasoning so what I do

here is first of all I CL clarify the meaning of Commerce and then I clarify the meaning

of necessary and proper clarification of Commerce Commerce shall

consist only of transfers of Equitable interest

and possession of tangible Commodities from a sailor or lesser to a purchaser a

l e it shall not include transport without such transfer of Interest nor

extraction primary production manufacturing possession use or disposal

nor shall it include the other activities of those engaged in such transfers it shall not include Energy

Information or financial or contractual instruments Commerce among the states

shall not include sales or leases within a

state then clarification of necessary and proper a power shall be construed as

necessary and proper for carrying into

execution that is to make a limited reasonable effort strictly

necessary to for a proper public purpose as defined in the Preamble and not to do

whatever might be deemed convenient to get an

outcome for which the effort might be made the powers to tax spend promote

regulate and prohibit or punish shall be construed as each be construed

as distinct with none derivable from any of the others and None Shall be

exercised as a way to avoid the lack of a power to do one of the

others now there's some question of course about whether this would really be

sufficient um it's very hard to write one that would be more

restrictive I think that it's does in fact cover what needs to be done

here but time will tell if it were enacted it would

certainly o overturn all those precedents all the going all the way back to

Mulla certainly wicker R comto and a lot of other uh

opinions so uh and of course we could clarify

further in the legislative history of this exactly what was intended

here but to try to keep it reasonably short uh what I'm doing is emphasizing

that carrying into execution is is only to make an effort and not to get an

outcome and I think if that were done that it would accomplish the purpose purpose that of course is what I'm

trying to do in the present case uh in that the Supreme Court has taken

on the patient protection and affordable health health care act building on the

brief of Mike Carvin for the national Federation of Independent businesses so uh

basically uh this amendment would do what the court might do if it makes the

right decision in that case and addresses the meaning of carrying into

execution properly now if it doesn't this would become especially

necessary if it does then uh well if this amendment might not be

necessary so uh we can always hope but we'll just have to see in the

meantime I think it's useful to propose these amendments uh to

as a way to entrench and solidify the line of argument they

represent so this would it basically would shed the light

on the intentional ausc of the limits of the

powers and we also

remove the general mindset that's

allowed these uh various aspects of the War on Drugs

to be put in place well I can't we can't say that it would remove the

mindset because mindsets are hard to remove but it would at least remove the

ambiguity in the language that they can seize on to try to achieve their

objectives where we're trying to do here is to uh Pro make the language of the

Constitution more more much more specific it was originally written to be

very brief but in the brevity lies a lot of risk of

ambiguity and in fact that's what we had what we W up with were brief but ambiguous

provisions and subsequent Generations have seized on that uh to try to pursue

their own agendas it's just like in contract law or of course in statutory law as well

you initially uh adopt a statute or a contract that's fairly General it might

be fairly short and then after you have some experience with it maybe the

parties to it trying to press the boundaries of it uh taking advantage of any loopholes or ambiguities in the

language that you have to revisit it and and tighten up the

language so essentially what we're doing here is we're tightening up the language of the

Constitution now when we do it's going to wind up being a much longer Constitution uh these uh amendments

taken together would more than double the the length of the Constitution but I'm afraid that at this

stage in our history we we really don't have a lot of choice but to do that uh

there have been several attempts that achieving what I'm trying to achieve using just a few amendments Randy

Barnett had 10 and people glazed over at that then he proposed just one people

glazed over at that but that one really didn't addressed any of these

problems and the ten didn't do it very clearly so uh what I'm finding is that

to really address them they have to have a level of specificity

that is going to make them long and numerous there just no way around it that's the only antidote to the

ambiguity that's given people license to sure do whatever they want to do yeah

even if we completely report took the presidency in Congress the

courts have a an inertia that would carry the old jurisdiction forward at

least for the lifespan of all the present members of the Court plus the

Next Generation that comes on to the court so you're probably looking at at least 40 Years of of of inertia behind

any political change that might occur and then of course you have to go back to the law schools and change the way

that you educate lawyers and rewrite a lot of law review

articles and textbooks and so forth so really realistically you're probably

looking at about 60 years to change the way the courts make decisions if you

didn't adopt amendments and this would be a

Swift and precise way to Short Circuit that unfortunate Prosperity right now

how would the

unconstitutionality as the Federal Reserve for this picture well I'm glad you asked me

that people are going to begin to think we've cons conspired on this subject

well these have just been building up well I look at what we've got we've

got the drug on the War on Drugs is is destroying a big chunk of our society

and our own credibility and the Federal Reserve and all this crap that's going on with

with fiscal irresponsibility now the Federal Reserve writes smack in the middle of it and the core of it is

actually Congress how would this address and and as we discussed with the

clarification how would this clear up the picture so that we can get rid of this fiscal irresponsibility and

apparently the Federal Reserve is a really big component of that

how does that part of the picture get disassembled

well I will show you in a

second kind of trying to wondering why some of these are bigger than the others

but

as I'm watching your work across the screen obviously the Federal Reserve is a safer

question

here we go legal

tender Congress shall have the power to Define legal tender only on territory

for which it is exclusive jurisdiction

and state legislatures only on exclusively State

territory neither Congress nor the states shall make anything legal tender

that does not consist of or is backed by gold silver or energy

for use nor use anything but legal tender to pay its debts or accept

anything but legal tender for the payment of taxes Federal Reserve that's right by by

fractional banking that's right all it takes the the focus is on

the Le is on legal tender once you take care of that the rest tends to take care

of

itself and that's one of those

a specific item absent in the brevity yeah now this

could actually be under clarifying amendments uh it's included here under

substantive because

uh of the uh the original Constitution

provides no authority to the Congress to make anything legal tender any

anywhere all it says is that the states shall not make anything but gold or silver legal

tender so it needs a power to declare legal tender but if this defines the the

territory limits on that power to be Federal territory no or put another way nonstate

territory non-state now that could include but that doesn't that then

exclude Federal jurisdiction over anything that involves the state only for as far as legal tender is

concerned okay but that makes it pretty clear yep now it does create an interesting

problem and which uh I don't address here I intend to

leave it as a challenge because the feds can only to make gold

silver energy legal tender for the payment of its for the receipt of its St

taxes and if there is no legal tender defined

that way within a state then they have a little problem how are they going to

collect taxes in that state well the answer is they can but uh

they might have to require people to pay their taxes in a federal

enclave and they wouldn't be able to to do anything about them if they were not

in a federal Enclave

now uh that raises another some other interesting

issues um you notice that I add energy to gold and silver M yes cuz there's not

really enough gold and silver anymore to make tokens you know of a size that is

convenient to be used for coinage um a single grain of

gold of which 275 I'm sorry

single I'm sorry a single grain of gold which uh you can look it up on my site

to get the exact amount the way it works out a single grain of gold is about the

sinus of a grain of sand is worth to that today's prices

about little under $4 or about the price of a gallon of

gasoline now you could tokenize it as a coin you could could bury the the grain

of gold in the middle of a glass or plastic disc transparent you can look to it you

can put it through a scanner you can verify that he was you if he de a little grain of gold so yeah you could do

it but little grains of gold you know as

ordinary currency well uh

maybe but but my theory is that the natural unit of that's appropriate for

currency is jewels of energy which you collect from oil coal

gas the sun uh uh hydroelectric dams whatever you use

to gather energy of course that's free energy the technical term in physics for available

energy so uh you would pay for things with effect

je certificates for jewels of energy and that would be the natural basis for a

currency because generally speaking the supply of energy expands pretty much at

a pace with the expansion of the economy whereas gold and silver do not

they would tend to be deflationary in their effect as there the supply of them is

not expanding so by using something that does grow with the economy like energy

uh you're ured of a stable backing for any currency

system and we sort of have a precedent for that already because barrels of oil

are denominated in US dollars so if a barrel of oil from Saud

Arabia is $100 well you can trade barrels of oil as though they

were $100 bills and uh or of course you could use

the $100 bill backed by a barrel of oil as as

currency so uh and that works as long as it's backed by that of course it's not

really backed by that it's uh because they're not promising to give you a barrel of oil if you hand them a $100

bill they they might try to insist that you take something else for in exchange for it so uh the idea is here that to

use something as backing you have to accept the thing backing

it uh in exchange for it or you have to give it over when it's

redeemed um and in order for that to work the giving and the taking has to be

acceptable both sides you don't have exactly so the the the offering of

whatever the backing is has to be of some use to the person accept deal right

and energy is something that can be understood by Ordinary People what about energy

loss well of course energy loss is like anything else you can lose gold and silver

too but you don't you don't lose it from like putting in the bank generally something like that or buying

here here and then and then money goes end up in Washington you don't lose the money between here and there no and you

don't lose the certificates either because ultimately when you redeem them at that point you generate the energy

that they are backpack so yeah this would be like you

were making a comment free energy talking in terms

of known conversion factors and that's before you get it to

the point where you use it which would be impacted by efficiency or

inefficiency which would bring in so idea of energy loss so for example

if you got paid in energy units you could you know when you get your utility bill from the city of

Austin utilities you can just hand them a certain number of energy credits a

certain number of jewels and that would pay for the jewels of energy you got from uh the City of

Austin as El electricity yeah it's like they would they would bill you for right

they would bill you in units of jewels that's right okay now of course they use kilowatt hours right and turning into

dollars right and that's what avoid having to turn it into Dollars you'd be

dealing directly in jewels of energy or it could be kilowatt hours but I think

Jewel Jewels is a is a metric measure so I I recommend that ultimately will and

even water has its equivalent in terms of jewels of energy the cost of water is essentially

the cost of the energy it took to to deliver it to your

tap and that's largely true also a trash pickup and uh

sewage so almost everything we buy or sell or use the the price of it is

largely dominated by the energy that went into delivering it that's

been known by those who wonder about it and most everybody else's AB bious to it

for years is the actual cost of food is really driven by the cost of the

energy required to produce it that's right and it's the interesting thing about that is that in the 19th

century 98% of the energy in a grain of weed came from the

Sun either directly from sunshine or from the Sun producing

rainfall in the La by the end of the 20th century 95% of it came from oil

coal and gas only about 5% of it from the

Sun that other 95% came in the form of

irrigation storage planting harvesting

insecticides uh fertilizers fertilizers storage uh

processing uh Transportation so all of those things add up and they add up to a lot more

energy than than the than the sunlight that originally grew the the grain

weed which of course the implications of that are that if there were a failure of oil coal and gas all of a sudden we

couldn't produce all the food that we need to stay alive and that's a really really gross

oversimplification what no mistaken about is some of these other crises do come to

pass and we saw it a little bit a couple of decades back where Farmers had their

energy fuel cost Skyrocket again a little bit but it was it was almost critical I was

living in agricultural state where it was very much part of the news where

they they weren't going to be able to get the crops in the ground or harvest them because they couldn't and the the price of the food

ultimately reflected to a very large degree and was increased in proportion

to the cost of their energy and that's assuming that the

process continues and is able to complete the cycle and what I what I saw

happening is we were reaching a crisis point where the cycle was going to be stopped yeah and of course any Sudden

Change in the cost of energy or any other such thing especially energy can

be disruptive because it takes a while to adjust to it and while during the

adjustment period a lot of the normal flows of production can be

interrupted and we saw that with the Oil Embargo of 1973 the oil producing countries

increased the price of oil by about a factor of five well the the immediate response to

that was uh gas lines at the pump yeah

1973 when that happened I I had be residing in Denver

at the time we were experiencing gas Wars yeah and a week or two later we

were sitting in line at the gas station yeah we went from gas

Wars to curtailed availability yeah just in a matter of days and what's

interesting about that is that over the next few years the currencies of every country

inflated by about a factor of five so that at the end of that period

they were paying about the same amount in terms of real value of their money that they were before the oil

embargo so the market adjusts itself if he created an artificial

shortage by you know withholding production all

ultimately U the market will respond by uh rebalancing at about the point where

it was previously but of course along the way it can be very

disruptive so those are some of the kinds of lessons that need to be taken to heart in the discussion of these

policy issues yeah because as as you're pointing out um there will be some

serious ramifications some of them immediate and some of

them sequential MH

that well it might trigger a few Wars for one thing you know the World War II was

largely well World War I for that matter but World Wars 1 and two were largely resource

Wars uh World War I was largely uh of the countries that lagged

behind in acquiring colonies against the ones that were leading in acquiring

colonies uh they thought that the colonial Powers were had too much of an

advantage that they were exploiting the wealth of the you know Asia Africa and

Latin America to the detriment of the central European countries that didn't have

colonies well it turns out that they was not as much of an advantage as they they

thought of course World War II was largely over resources like

oil uh most of the Axis powers were really fighting a war to get control of

oil supplies so this is dang all over again yeah so it's a

uh uh we we see a recurrence pattern

here um now of course we didn't have nuclear weapons then now we do in fact

too many countries have nuclear weapons and then no telling what that's liable

to lead to and now there are more resources that are likely to be scarce we just passed 7

billion people whether we'll be able to get to 8 billion is a big iffy

question um because we are pushing the limits of our ability to produce

food there are all kinds of ideas out there for increasing food production

but most of them are sort of speculative we don't have the solutions

yet and in order for the solutions to arrive in time to be useful we will

already need to know what they are and the fact that we don't know where they are that we still have to

develop them means there's no way they can arrive in time to be useful so the next decade or two are

going to be extremely tragic it's going to be a really rough

World well to my to my awareness uh it's

been a a significant item lodged in the back

of my mind that's that's going to a much more critical issue and much

sooner than food is water yep well we're well of course we're

already already seeing that here in Texas water's about become a new gold

yep all of these arguments about food and energy and it is

squat yeah we may have to build a pipe a water pipeline for Canada may be more

important than a gas pipeline um because the last significant rain we

had in Texas was September of last year and this September we missed that

rainfall and we have little Prospect of getting anymore until September of next

year so we're likely to have desert conditions developing here in Texas

unlike anything we've ever seen before uh uh so it's it's liable to be

pretty rough uh we could be turning on our water taps and nothing comes

out cuz we don't we don't mind archa archaic water here the way that some

places do there are whole regions of Arizona and New Mexico that are now

mining their water that was laid down hundreds of thousands or millions of years years ago they're nearing the

bottom of their equ when they run out there's going to be a mass migration out of those

States well when Texas only has to hit the bottom of its

lakes and when it does uh we're going to be in trouble we're really close now

yeah well you can already walk across like Travis or at least out to uh what do

they call it uh sometime Island now sometime

yeah so um we need to prepare for things

getting worse and what I'm of course my aim as a

member of the Senate would be to precisely to prepare prepare us for it uh there limits to what we can

do but we need to face the fact that there limits to what we can do and do what we can well part of that is with

what you're describing here there's clarification and once we get clarification then all of the energies

that are being directed to things that have new business consuming our time and energy will cease right we most of our

problems are solvable in principle if we just co-operated in the right way at the

right time you know but we're not doing that now

the market alone cannot be dependent upon to do that uh we Libertarians are fond of you

know preaching that the market is a solution to all problems and in a sense it is in the long

run but you know it's it's easy to say that

um the Invisible Hand will guide the market and that uh it will eventually

you know achieve equilibrium yes but uh the Sahara Desert is an

equilibrium you know so an equilibrium does not necessarily mean there are any

people left alive um but that doesn't mean of course

that governments know how to intervene because they mostly don't so if markets can't do it and

governments can't do it we are you know what altern natives do we have

left the answer is is nothing is obvious but we we better come together as a people

and be become much smarter very willing to work together to

to explore with one another to find Solutions uh which are we sort of Mark

it like but not necessarily uh driven by

prices so uh as I said there are solutions they're not obvious but we

need to prepare to develop them at least if there were if there

were enough convergence of thought that would help some of the

possibilities appear yeah but we are nearing the end of our

time slot here at the library so if you don't have anything else I guess as a good time to uh uh end

the meeting any last words anybody have or questions

or no

okay