powers, the states, by amendment, could call it back. Ofrncourse, the government exceeding its powers would not consentrnto limit itself.rnThe Hamiltonians, on the other hand, believed thatrnCongress should control the amendment process. AlexanderrnHamilton insisted on congressional approval of proposedrnamendments or the calling of a new Convention because of hisrnbasic bias in favor of a strong central government, and had norndoubt that the states would use the amendment process to increaserntheir power. As he told the Convention on June 22,rn1787, “state government will ever be the rival power of the generalrngovernment.” He intended that the states, once they createdrnthe national government, would not be able to control it.rnHamilton was correct that the amendment process wouldrndetermine the nature of the central government. The harder tornamend, the stronger the central government created; the easierrnto amend, the weaker the federal government and the more responsivernit would have to be to the governed. By amendment,rnany decision of the national governmentâ€”by the SupremernCourt, Congress, or the executiveâ€”can be modified or overruled.rnAny power claimed by the national government can bernreclaimed by the states and people. The amendment processrnwas, therefore, a critical battlefield in the war between the Virginiansrnand the Hamiltonians. It remains so today.rnWhen the Virginia Plan came to the convention floor, Madisonrnnoted that “several members did not see the necessity ofrnthe Resolution at all nor the propriety of making the consent ofrnthe National Legislature unnecessary.” Colonel George Masonrnof Virginia responded that amendment was a necessary alternativernto revolution and noted: “It would be improper to requirernthe consent of the Natl. Legislature, because they may abuserntheir power, and refuse their consent on that very account.” Afterrnthe initial debate, the Committee on Detail proposed thatrn”On the application of the Legislatures of two thirds of thernStates in the Union, for an amendment of this Constitution,rnthe Legislature of the United States shall call a Convention forrnthat purpose.” This seems to have been a mangled attempt torncompromise the differences between the Virginians and the nationalists.rnThe proposed article, on the surface, provided for arnstate-initiated procedure in which the congressional role seemsrnministerial, i.e., that it “shall call a Convention for that purpose.”rnThe problem, of course, was that the congressional rolernwould not be purely ministerial since, by the call. Congressrncould control how it would be made up, how it would operate,rnand what the convention could do.rnThe Virginians apparently realized the problems built intornthe proposed article since the next version corrected them. ThernCommittee on Style reported a new article providing thatrn”Congress, whenever two-thirds of both Houses shall deemrnnecessary, or on the application of two-thirds of the Legislaturesrnof the several States, shall propose amendments to thisrnConstitution.” The language required that Congress send tornthe states for ratification any amendment proposed by twothirdsrnof the states. At this point, Gouverneur Morris of NewrnYork and Elbridge Gerry of Massachusetts moved to change thernstate-initiated method to require Congress to call a conventionrnrather than simply pass the proposed amendment to the statesrnfor their consideration. The added requirement of a conventionrnchanged the state-initiated procedure from a straightforwardrnone controlled by the states to one so uncertain and complicatedrnthat it has never been used. Madison accepted thernMorris-Gerry motion. The states’ ability to propose amendmentsrnwas effectively eliminated.rnMadison knew that the last-minute Morris-Gerry motionrnseized from the Virginia delegation a victory almost within itsrngrasp. But, as George Washington wrote two days later, “ThernConstitution, which we now present, is the result of a spirit ofrnamity, and of that mutual deference and concession which thernpeculiarity of our political situation rendered indispensable.”rnThe Virginians had to compromise for what they saw as therngreater good.rnBut they certainly would not have agreed with the FederalistrnSupreme Gourt Justice, Joseph Story, who praised Article V asrnan effective “safety valve” in his 1833 treatise. Commentaries onrnthe Constitution of the United States. The “efficacy of a safetyrnvalve,” responded the 19th century scholar Sidney Fisher, “dependsrnon the promptness with which it can be opened and thernwidth of the throttle. If defective in either of these, when thernpressure of steam is too high the boiler will burst.” Article V,rnFisher concluded, is an “iron fetter” rather than a safety valve.rnThe heart of the problem, of course, is the self-defeating consentrnmechanism which requires the body to be limited to agreernthat it should be limited.rnOnly in America, Tocqueville wrote in 1835, have the peoplernacknowledged the right of judges to declare laws unconstitutional.rnIn France, the constitution is supposed to be immutable,rnand the received theory is that no power has the rightrnto change any part of it. In England, the constitution changesrncontinually, or, in reality, does not exist, because Parliament isrnat once a legislative and constituent assembly. Whatever it enactsrnis constitutional.rnFrench judges, on the surface, have more power than Americanrnjudges, since they have the right, and they alone have thernright, to interpret a constitution which cannot be amended.rnBut as Tocqueville notes, were they to exercise the right to declarernlaws unconstitutional, they would encroach on rightsrnmore sacred than their own, namely those of the society inrnwhose name they are acting. “[N]o danger of this kind is to bernfeared” in America, Tocqueville concluded, because “the nationrncan always reduce its magistrates to obedience by changingrnits Constitution.” However, Tocqueville turned out to bernwrong; because of our flawed amendment process, Americansrnare not able to reduce magistrates to obedience.rnMadison in Federalist No. 43 wrote that a Constitution couldrnbe too “mutable,” on the one hand, or, on the other, so hard tornchange that we “perpetuate its discovered faults.” A constitutionrnthat cannot be made to conform to the values of the governedrnmay lead to revolution. A new constitutional convention,rnwhile it may lack the violence, terror, purges, and guillotines ofrna revolution, certainly threatens, and could produce, a differentrnsociety. Most people do not want a revolution or a new constitutionalrnconvention. But they do believe that basic revisions ofrnthe Constitution could bring Congress and the Gourt underrncontrol. The patch, Jefferson said, should fit the hole, and thernproper patch in this case is the state-initiated amending processrnwhich Madison originally proposed.rnJefferson wrote that the basis of our experiment is that “menrnmay be trusted to govern themselves without a master.” Madisonrnsaid that all “our experiments rest on the capacity of mankindrnfor self-government.” If they are wrong, America is wrong.rnSelf-government means the citizen is free to act, and the Madisonrnversion of Article V allows for such freedoms. If threefourthsrnof the states want to change the Constitution, theyrnshould be able to do so.
January 1975April 21, 2022By The Archive