would have a more accurate gauge as to whether the people arernin fact consenting to the decisions of the national government,rnespecially those of the Court.rnWe should adopt Madison’s solution to restore some consentrnof the governed and to provide a check on the Court and thernfederal government. Congress should not have any approval orrnveto power. As Madison said, “The assent of the National Legislaturernought not to be required thereto.”rnMadison’s Article V required Congress to propose anrnamendment on application of two-thirds of the states:rnThe Congress, whenever two thirds of both Houses shallrndeem necessary, or on the application ofhvo thirds of thernLegislatures of the several States, shall propose amendmentsrnto this Constitution which shall be valid to all intentsrnand purposes as part thereof, when the same shallrnhave been ratified by three fourths at least of the Legislaturesrnof the several States, or by Conventions in threernfourths thereof, as the one or the other mode of ratificationrnmay be proposed by the Congress.rnMadison believed his amendment process was appropriaternsince the states—whose sovereignty had been established byrnthe Treat}’ of Paris in 1783 —were creating the Constitutionrnand should, of course, be able to change it. Madison’s versionrnof Article V was not opposed until the Convention’s closingrnhours on September 15, when Gouverneur Morris of NewrnYork presented an amendment that changed Madison’s proposalrninto the never-used convention method we now have.rnMorris’s motion deleted the italicized portion of Madison’s proposalrnand replaced it with new language providing that Congressrn”on the Application of the Legislatures of two thirds of thernseveral states shall call a Convention for proposing Amendments.”rnMadison, apparently as a political necessity, accededrnto Morris’s change but noted that “difficulties might arise as tornform, the quorum, etc., which in constitutional regulationsrnought to be as much as possible avoided.”rnOur present Article V, because of Gouverneur Morris, suffersrnfrom a fatal flaw. It makes Congress a gatekeeper underrnboth methods for proposing constitutional amendments: underrnthe first. Congress has a direct veto—hvo-thirds of both Housesrnmust approve the amendment before it can be proposed to thernstates; and under the convention method, it is unclear whatrnpowers that convention would have and whether they could berneffectiely limited. Congress also has the power to fashion therncall of the convention in a way to make a good result unlikely.rnThe convention approach is so uncertain that it has not been,rnand never will be, used.rnArticle V requires Congress to consider proposals for limitingrnthe power of the federal government. Gouverneur Morris’s versionrnof Article V twisted the basic constitutional legal relationshiprn— instead of a delegation of power from a principal to anrnagent which, of necessit)’, would be revocable, the Constitutionrnbecame a contract between the governors and the governedrnwhich could not be changed except bv the mutual consent ofrnboth parties. The governors generally choose not to consent.rnIn 1787, the states, like Dr. Frankenstein, built a creature andrnlost control of it.rnThe Madison Amendment process would give an accuraterngauge of whether the people are really consenting to the decisionsrnof the Supreme Court. The Court would decide casesrnjust as it does now, but the people—through three-fourths ofrnthe states—would hold a deliberative vehicle to enable them torncorrect its errors. The amending power becomes a realisticrncheck on the Court. Indeed, the existence of the power is itselfrna check.rnThe present amendment system —because of the congressionalrngatekeeper—grants the three national branches of governmentrna practical immunity from change. Since the first 11rnamendments were adopted, only one amendment, the 22ndrn(presidential term limits), has curtailed the power of a nationalrnbranch. (The 27th, the ban on Congress raising its own pay,rndoes also, but by its peculiar history—proposed in 1789 as partrnof the original Bill of Rights and adopted in 1992 —it effectivelyrnavoided the restraints of Article V.) The remaining amendmentsrncover housekeeping (electoral college, presidential succession),rnand at least one, the 16th (income tax), adds a majorrnnew national power. But most amendments limit the power ofrnthe states—the direct election of senators (previously elected byrnthe state legislature). Prohibition and women’s suffrage (previouslyrnstate issues), anti-poll tax, and the extension of the franchisernto 18-year-olds.rnCongress is willing to propose amendments which will weakenrnstate power if ratified. But, as the proposed amendments forrnterm limits and the balanced budget show. Congress will notrngive the states and the people the opportunity to ratify amendmentsrnlimiting national power. Congress prefers that thernCourt, rather than the amending process, act as our system’srnagent of constitutional change. The present clause is a one-wayrnstreet. Madison’s amendment process would make the streetrnhvo-wa)’. The states would be able to amend the Constitutionrnwithout first obtaining the consent of the government they wantrnto control.rnThe Madison process would focus debate on federalism andrnour current government. Perhaps the states would wish to reexaminernthe sweeping, nationalizing decisions of John Marshallrnand the more recent decisions that have turned the statesrninto regional offices of the federal government. Perhaps theyrnwould choose a different role for the national judiciar}-. Whateverrnthe people decide, the Supreme Court would no longerrnhave the last vord. A state-initiated amendment process wouldrnprovide the constitutional system Madison wanted, one that isrnmore balanced and based on self-rule. We would then be ablernto approach Jefferson’s goal of a government that is as good asrnthe people. trnOn the Carnival’s Last Dayrnby Richard MoorernI’ve often heard the Ferris wheel’srncacophony of female squealsrnand, also interesting, have thenrnobserved a gang of clever menrnpulling the stupid thing apart,rnheedless of beaut’ and of art.rnFEBRUARY 1998/21rnrnrn