What is Wrong with the Amendment Process and What Can Be Done About It

0:00We no longer enjoy self-government and the rule of law at the national level, and the only hope for restoring those things is through the states as units of the federal system. Well, that's a pretty dark claim. Let me spend a little time to try to convince you that we have lost self-government at the national level. In order for the people to govern themselves, There must be a proper ratio between a population and representation. What is that proper ratio? Madison thought that there should be one representative in the House for every 30,000 people. There should be a limit of that sort for congressional districts.

0:47For the sake of argument, let's take Madison's ratio. This has capped representation in the House at 435 people, representatives. There are around 315 million Americans, and that yields a ratio of one for every 750,000 people, a meaningless ratio for representation. For example, if that ratio obtained in the first Congress in 1790, there would have been And only five members in the House, for four million people. Not too far in the future, the U.S. will have 435 million people, at which time there will be one representative for every million persons.

1:38So what is the solution? Increase the size of the House? No. Judged by lawmaking bodies around the world, 435 is about right for a lawmaking body. Any change in size that would correspond to a proper ratio would be too large for a lawmaking body. I mean, you might jack it up to 600, but that's not going to make any difference. You've got to get the scale right. For example, if we use Madison's ratio of 1 for every 30,000, there would be today 10,500 representatives in the House. This would be much too large for a debating society making laws.

2:26Now, what this shows is not that Madison's ratio is wrong for self-government, but that The United States has simply grown too large, structurally, for self-government. It is completely out of scale, and nothing can be done about it except to change the structure to get the scale right, and that will require deep constitutional change through amendments. Or consider the matter in a different light. A lawmaking majority of the House, Senate and the President is only 269 people. The small number rules 315 million people.

3:16And if a quorum is used, as it usually is, the lawmaking majority is only 135. This small number will spend this year around $5 trillion, an amount about equal to the entire gross national product of Japan, and larger than Germany. Never in human history has so much financial and political power been placed in so few hands. Nowhere has this ever happened. But the matter's worse, for most of the laws we live under are not made by representatives and Congress and all, but flow from regulations, regulations that flow from the bloated bureaucracies under the control of one man, the president. But worse. Could it get any worse? Worse.

4:12Most important social policy, morals, religion, speech, law enforcement, is made not in state Legislatures as the Constitution Requires, but by nine unelected politically well-connected lawyers on the Supreme Court. But even worse, the Supreme Court, through the exercise of judicial review of power not written in the Constitution or implied, holds itself out Start as having the final say on interpreting the Constitution. If that's true, as it is, for a lot of people, then farewell to the rule of law. That's just it. This is not an hysterical or cynical claim.

4:58It's just true. Since reform through national elections is practically impossible, not difficult, but impossible, we are left only with the states as a source of reform. Now, what can the states do? Jefferson Madison said that since the Constitution is a compact between sovereign states, and if you don't believe that, read Article 7. It says very clearly that it's a compact, quote, between the states, end quote. Creating a central government having only defined and enumerated powers, a state has a duty to protect its Citizens Against Unconstitutional Intrusions into a State's Reserved Powers.

5:44Now Jefferson called this act nullification. He's the first to use the term in public discourse. How does the Constitution draw the line between the powers the central government has and those reserved to the states? Well the answer is simple. If an alleged power of the central government is not explicitly stated in the Constitution, it does not exist. If a power is not explicitly prohibited to the states, it is reserved to the states. Since the powers of the states are undefined and unenumerated, some states might reserve a power, others are willing to give up. In that case, a state should be allowed to opt out of the federal act, intrusion into its reserve powers.

6:36Now a lot of people panic over that, but Canada has just that provision. In Canada, a province can nullify any federal act in the area of civil rights, just opt out of it. That will apply to the other states. In addition, a Canadian province has a constitutional right to secede, and by the way, any large scale federation should have those two rights, the EU, the United Nations, the United Kingdom, any of them. The American Federation was supposed to be the same, and it did act that way until the Civil War. Only three years after the Constitution was ratified, Georgia nullified a ruling of the The Supreme Court in the case of Chisholm v. Georgia in 1793 on the ground that an individual could not sue a sovereign state without its permission.

7:29Now, the Georgia House of Representatives that nullified the Supreme Court ruling passed a resolution declaring that if any federal agent, quote, if any federal agent, quote, entered the state to enforce the court's ruling, he would be guilty of felony and and Suffer Death Without Benefit of Clergy." Other states agreed with Georgia and passed the Eleventh Amendment to confirm it. Even earlier, only two years after the Constitution was ratified, Jefferson advocated state nullification of Hamilton's cartel of private banks, falsely called Bank of the United States and the mother of the Federal Reserve.

8:16The Philadelphia Convention had flatly rejected giving the central government power to charter corporations. That had been discussed and the answer was no. Jefferson explained the logic of nullification to Madison as follows, quote, The power of erecting banks and corporations was not given to the general government. It remains then with the state itself. For any person to recognize a foreign legislature in a case belonging to the state itself is an act of treason against the state. And one acting under the authority of a foreign legislature, the Congress, whether by signing notes, issuing or passing them, acting as director, cashier or in any other office relating According to it, shall be a judge guilty of high treason and suffer death accordingly."

9:11Boy, in those days, giants walked upon the earth, not the pygmies we have today. That's how you handle federal agents, who intrude into the reserve rights of the states. So serious matter, you don't do that. Okay, there was hardly ever a time up to the Civil War when nullification was not a part of the American Federal System. We've forgotten that. I don't have time to go over the cases. I'll just mention that Wisconsin, for example, repeatedly nullified what it judged unconstitutional rulings of the Supreme Court in the late 1850s. And nullification worked. It kept the central government in check. As of 1860, the central government had only a small debt from the Mexican War.

9:59It imposed no inland taxes, but lives simply, off land sales and a tariff on imports. Its military force was only 15,000 troops. The sword was in the hands of the states and the states prevented the central government from becoming the tyranny it is today. Not the Supreme Court, not the Congress and not the President, the states, S-T-A-T-E-S. We've forgotten what they are. The Civil War did not destroy the constitutional right of nullification and secession. However, the central government did acquire de facto power, which it has increased incrementally and to which the states have largely acquiesced.

10:44So we can't expect the states to act quite as strongly as they did in the past, but they can act. Let us pause for a moment to consider just how powerful the states are. If Texas were an independent country, it would have a GNP about the same as Russia. And California is larger than Texas. If the 11 states in the 48 other states, if the 11 states of the Confederacy were an independent country, it would be the fourth largest GNP in the world and close to the second and third. There is no reason why polities of this size and scale should be jerked around by a law-making majority of only 269 in Washington or 135 if a quorum is used or nine unelected Supreme Court justices. Though timid the states have never ceased to interpose and nullify recently they nullified the ID Act by just ignoring it and California has nullified the medical marijuana thing which the Supreme Court and the Congress have told them to do and they

11:51Now, Article 5, we've already heard about, we know what it says. I should point out that from 1790 until today, there have been over 10,000 amendments proposed to Congress. How many have gotten out the gate? Only 30. It's impossible to make any serious constitutional will change by going through Congress. And Professor DeRosa has mentioned that, what, 300 petitions or so from the states. The answer of Congress is no. Well, I think I'll just wrap this up. One of the things I find interesting about this, let me make this point, that Article V is originally drafted by Madison, which they discuss right up to the end said that if two-thirds of the states proposed amendments, the Congress, sorry, if two-thirds of the states proposed amendments, they would have to be sent to the states for ratification, right?

12:59In other words, Madison already had the single issue amendment thing stated, so if two-thirds of the states wanted a balanced budget amendment, Congress would have to call a convention to see whether it would be ratified or not. It's interesting to point out that the Confederate Constitution saw this weakness and they corrected it as follows. Any three states in the Confederacy could propose an amendment, and only two-thirds were needed to ratify. So if we had the Confederate Constitution, as far as Article 5 goes, then three states could propose a balance of budget amendment. Congress would have to send it to the states for ratification, and only two-thirds would be needed.

13:44We could get on with it. We could get on with a lot of things. The Confederate Constitution, by the way, is a wonderful constitution because it had 70 years of experience of centralization. And what they did was they kept the U.S. Constitution simply reformed. Well, I'll just end it by saying that near the end of the convention, that Gouverneur Morris, who has a lot to answer for, proposed another reading of Article 5, and it passed. So we have the absurd Article 5 we have today. We should go back to Madison's Article 5. as long as if this hadn't been thought of. Thank you very much.