Paradox of Self-Amendment by Peter Suber [T]he function of a State legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State. So, the people of the states cannot control the amendment process. Bacon wondered whether ours was still a government of the people. He calculated that the number of federal and state legislators needed (in 1930) to propose and adopt an amendment to the federal constitution was 1300.[Note 19] To Bacon, Leser in effect put all the rights of the people in the hands of 1300 officials beyond the control of the people of the states. Our boasted limited government and inalienable rights were shams so long as 1300 tyrants could amend them away without any check from the people. If the elite 1300 truly hold the reigns of an omnipotent AC, then "we citizens have no rights in the proper sense of that term, but only privileges extended at the pleasure of this oligarchy."[Note 20] Bacon had discovered a monstrous threat to fundamental liberties —the sovereign power of amendment. The only possible check on infinite abuse and tyranny was the Tenth Amendment, which reserved some power to the states and the people, and which arguably took the power to diminish our rights out of the hands of the 1300 and gave it to the people in convention. Bacon did notice a real contingency ominously underlying our "inalienable" rights and "limited" government. But the foundation of the system was not rotten just because it was subject to amendment. If Bacon preferred an alternative, then we cannot say that he preferred a more democratic system, for the only way to put fundamental liberties beyond the amendment power is through an immutable rule, which gives one generation despotic and paternalistic power over its successors, or through continuing enlightened despotism, which forsakes democracy even more directly. Unlike Selden Bacon, the American lawyer, Kurt Gödel the Austrian logician understood that an omnipotent AC contained the risk of tyranny. Gödel studied the U.S. constitution in preparation for his oral citizenship examination in 1948. He noticed that the AC had procedural limitations but no substantive limitations; hence it could be used to overturn the democratic institutions described in the rest of the constitution. Albert Einstein and Oskar Morgenstern urged Gödel not to mention this fact to the examiner. In fact, they decided to accompany Gödel to his examination in Trenton in order to keep him out of trouble. At the government offices, the examiner congratulated Gödel for leaving Germany, which was under an "evil dictatorship" of a kind that could never occur in the United States. "On the contrary," Gödel shouted, "I know how that can happen!" Einstein and Morgenstern had to restrain Gödel long enough for him to finish the examination and take the oath of citizenship.[Note 21] The Tenth Amendment reserves to the states and people "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States." The phrase "to the United States" was added on the suggestion of Roger Sherman. Bacon believed that Sherman's addition was intended to point the Tenth Amendment "directly" at Article V, and that the resulting language "expressly" targeted Article V.[Note 22] Certainly the reference is not an express one. Bacon must rely on intent, if anything, not the text of the Tenth Amendment. Bacon's idea was that the amending power was the only power in the constitution not delegated to the United States nor prohibited to the States. That points the reference to Article V. Without Sherman's phrase "to the United States" the Tenth Amendment would have reserved all undelegated powers. Moreover, the rights of the people were reserved or entrenched by the Ninth Amendment.[Note 23] The Tenth Amendment speaks of "powers", not "rights", and hence does not duplicate the Ninth Amendment. "Unless that unlimited power of amendment by a handful of Congressmen and legislators was taken away by the Tenth Amendment, what was it that was reserved to the people?"[Note 24] This argument has some strength. Henry Taft rebuts it directly. "[T]he power to propose amendments has been delegated to the United States by Article V."[Note 25] Taft draws comfort from the Supreme Court in Hawke v. Smith, No. 1, 253 U.S. 221, 226, 228 (1920): The Fifth Article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress... Dodge v. Woolsey, 18 How. 331, 348....When [the framers] intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose [than they were in Article V in giving the power to determine the method of ratification to Congress]. This, however, cannot suffice, for the case that directly addressed the question of the effect of the Tenth Amendment on the power of Congress to select the mode of ratification held that Article V does not purport to delegate any governmental power to the United States, nor to withhold any from it. On the contrary, as pointed out in Hawke v. Smith (No.1)...that Article is a grant of authority by the people to Congress, and not to the United States. U.S. v. Sprague, 282 U.S. 716, 733 (1931). Sprague, then, agreed with Bacon that Article V did not delegate any power to the United States, yet it denied that the Tenth Amendment therefore reserved the power to deprive the people of their rights or powers to the people. How this was done was something of a cheat on Bacon and the others who relied on the historical analysis of Roger Sherman's intention. The Sprague court, in an opinion by Justice Roberts, did not care about Roger Sherman's intention, and did not even bother to rebut the claim that the language of the Tenth Amendment may actually have been intended by one of its writers to reach the amending power. Instead Justice Roberts relied on the "plain meaning" of Article V, which says that a proposed amendment may be ratified by state legislatures or conventions "as the one or other mode of ratification may be proposed by Congress." This language "clearly" gives Congress the discretion to select either mode. A contrary intention is not, at least, revealed by the language. Moreover, three prior cases asserted the same thing, if only in dictum. In a succinct conclusion, which not incidentally implies the permissibility of self-amendment, Justice Roberts wrote,[Note 26] 114