Section 16
Amendment by Implication
Peter Suber, Paradox of Self-Amendment Table of Contents

A. The lex posterior principle v. self-entrenchment

When a new statute is passed that is inconsistent with an earlier statute, courts first try to reconcile them. But if the statutes cannot be reconciled without resort to absurd or violent interpretations, then the most recent statute is given priority. The earlier statute is impliedly repealed, not in its entirety but pro tanto or to the extent of the irreconcilable conflict.

Two reasons are usually cited for the priority of recent law. First, it is the most recent voice of the people, the sovereign. They are undoubtedly able to repeal any existing law. They presumably know the provisions of existing law and intend to give effect to all their recent words. The weakness of this presumption is shown by the universal dissatisfaction with implied repeal, and the universal injunction to attempt reconciliation first. (This practice betrays the often conflicting presumption that the people intended that their act be compatible with their earlier acts.)

Second, statutes may amend or repeal other statutes, and the newer is more likely an amendment of the older than vice versa.[Note 1] Why this should be so is unclear. If the newer statute is taken to be the amending, not the amended, statute, then it may be by appeal to "legislative intent", which collapses into the first reason, or by some appeal to the nature of statutes as a rule of change for statutes. Statutes unquestionably are rules of change for statutes, but this fact alone cannot explain why only newer statutes possess the power of implied repeal, or why it is so difficult for a statute to amend or repeal inconsistent future statutes through self-entrenchment.[Note 2] Following common usage I will use the term "lex posterior principle" for the priority of new rules over old rules of the same type.

In a conflict between rules of different types, the superior rule in the legal hierarchy takes priority, even if it is older. For example, constitutional provisions always take priority over statutes. This is the lex superior principle. Any legal system displaying what I have called a reflexive hierarchy will also display many exceptions to the lex superior principle, or cases in which superiority is measured on a circular scale (see Section 21.D).[Note 3]

The third major rule of priority is the lex specialis principle, which favors the specific over the general in conflicts at the same hierarchical level. While the lex superior principle (normally) takes priority over both the other two rules, the relative priority of the lex posterior and lex specialis principles among themselves is unsettled. When a new rule is less specific than an older rule of the same hierarchical type, and when they are irreconcilable, then it is apparently permissible to favor either rule, according to independent considerations. For example, one court has held that when two amendments adopted at the same time are irreconcilable, the one receiving the greater number of votes takes priority over the other. In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 189 Colo. 11, 536 P.2d 308 (1975).

If the question only arose more often of the relative priority of these rules of priority, we might see steps taken down an indefinite regress or toward a theory of types.

The law of implied repeals is relatively well developed for statutes and cases, if only because there are so many of each and the question frequently arises. But the law of implied repeal for constitutional amendments is relatively undeveloped. Even at the state level where constitutional amendment is much more frequent than at the federal level, the theory of implied repeals is surprisingly inarticulate.

When an amendment says of itself that it is to amend or repeal Article A, then there is no question of its effect on A. But it if is inconsistent with certain provisions or judicial interpretations of Article B as well, then does it impliedly repeal the latter? The amendment more than satisfies the two criteria used for statutes: it is the most recent voice of the sovereign, and it is enacted under a power sufficient to amend any portion of existing law. Whether a new amendment impliedly repeals every portion of the antecedently existing text irreconcilable with it may turn on a court's judgment of intent,[Note 4] or on deference to the inherent power of constitutional amendments to plow under all obstacles in their path.[Note 5] The only ways, apparently, to allow preexisting portions of the text to preserve themselves against implied repeal[Note 6] is to deny the omnipotence of the AC, which has been done of course (see Section 8), to find such denial implied in the doctrine of the homogeneity of the constitution,[Note 7] or to permit effective or immutable self-entrenchment (Sections 8, 9).

If amendment by implication is possible, then amendment of the AC by implication is possible. Many scholars, but only losing plaintiffs, have argued that this has in fact happened to the federal AC —that Article V has been impliedly amended by the Tenth and Fourteenth Amendments. Since both these amendments were adopted under the AC they allegedly alter, we are dealing with arguments for genuine, although mediate and implied, self-amendment at the federal level.

No clauses of the original constitution have been construed by courts to limit the power of Article V. Of the amendments, only the Tenth and Fourteenth have been argued to have such an effect.[Note 8]

Although no one has argued that amendments other than the Tenth and Fourteenth have impliedly amended the AC, one might plausibly argue that each has necessarily done so. Take the Fifteenth Amendment (Black Suffrage) as an example. It established the right of blacks to vote and was adopted after Article V. Did it therefore limit the power of Article V to destroy their right to vote? If an amendment impliedly repeals all preexisting provisions inconsistent with itself, and if inconsistency in this context is measured by the deontic test (whether one rule permits what another forbids or vice versa), then it seems that any amendment that expressly permitted something previously impermissible (voting by blacks, women, or 18-year-olds) or forbade something previously permissible (unreasonable searches, legislative appointment of Senators, sale of liquor) thereby limits Article V by impliedly repealing its power to do otherwise in the future. Prohibition (the Eighteenth Amendment) would limit the power of the AC so that the repeal of prohibition (the Twenty-First amendment) would be impermissible.

Here is a more reflexive form of the same problem. Article IV, §4 guarantees a republican form of government. Would we violate that guarantee if the AC were used to enact the complete self-repeal of the AC, leaving behind no official power to amend? A strong case could be made that such self-repeal would compromise our republican form of goverment. But just as strong a case could be made that the self-repeal of the AC would impliedly repeal Article IV, §4 pro tanto.

One may conclude that amendments either do not impliedly repeal all preexisting provisions irreconcilable with themselves, or that if they do, such repeals (especially those of the amending power) are ignored in practice. A simpler solution is that, while an amendment and the AC may be "inconsistent" by the deontic test, their conflict is nevertheless "reconcilable" by allowing the amendment to stand until repealed and by giving the AC the power of repeal. What seems undeniable, however, is that any significant amendment will be inconsistent with the AC by the deontic test. Indeed, if "significant" means permitting what was once forbidden or vice versa, then this is a tautology. Not only would this bar repeal of valid amendments under the inference model, but even the enactment of valid amendments. Any interpretation of the lex posterior principle is empirically false if it makes every significant amendment into (1) an immutable limitation on the AC, (2) an implied repeal pro tanto of the AC, (3) impliedly self-entrenched as a consequence of its implied powers of repeal, or (4) an impossibility ab initio. Again, this is proved empirically by the acceptance of the Twenty-First amendment, adopted under the AC. This is another area in which doctrinal difficulties, normally ignored, require us to reject the inference model.

B. Was the adoption of the Tenth Amendment a case of self-amendment?

The argument that the Tenth Amendment amended the AC pro tanto is much more plausible and historically important than that for the Fourteenth Amendment (see Section 16.C below).[Note 9] Outside the courts the debate is best summarized by Selden Bacon,[Note 10] arguing that the Tenth Amendment must be understood to have amended Article V, and by Henry W. Taft,[Note 11] arguing against. The debate was stimulated by the adoption of the Eighteenth Amendment (Prohibition) in 1919. Prohibition was arguably the first constitutional amendment that deprived the people of rights they had previously enjoyed. But there is some disagreement about this. Bacon argues that the Eighteenth Amendment uniquely violates the "reserved powers" of the people and states guaranteed by the Tenth Amendment, but some courts have wondered why the same cannot be said of the Thirteenth, Fourteenth, Fifteenth, Sixteenth, and Nineteenth Amendments.[Note 12] In any event Bacon maintains that an amendment that deprives the people of any of their rights must be ratified in state conventions, not state legislatures. Ratification by convention would manifest the consent of the people, supposedly required by the Tenth Amendment, whereas ratification by legislature would merely provide the consent of the states.

Article V gives Congress the power, and apparently the unfettered discretion, to decide whether ratification of a proposed amendment shall be done by convention or by legislature ("as one or the other mode of ratification may be proposed by the Congress"). Bacon argues that however unlimited this discretion was in 1789, the Tenth Amendment limited that discretion in 1791 and required ratification by convention for every amendment that would limit the people's rights. Bacon insists that[Note 13]

if the power to be conferred by the [proposed] amendment is one that the people alone could grant (before Article V was adopted), then the people reserve that power for themselves, and take it away from the legislatures.

It followed that ratification of such amendment must be by the convention method, not by legislatures.[Note 14] He summarizes his position as follows:[Note 15]

The Tenth Amendment, in short, said: If the Federal Government wants added direct powers over the people or the individual rights of the people, it must go to the people to get them; ...the right, at the option of Congress, to get such added powers from any other source [such as state legislatures] is wiped out.

Because the Eighteenth Amendment was ratified by state legislatures, not state conventions, Bacon believes it was adopted defectively and was therefore void.[Note 16]

After the adoption of the Eighteenth Amendment in 1919 the Supreme Court heard four separate challenges to its validity, and upheld it each time. Hawke v. Smith, No. 1,253 U.S. 221 (1920); National Prohibition Cases, 253 U.S.350 (1920); Dillon v. Gloss, 256 U.S. 368 (1921); and Coleman v. Miller, 307 U.S. 433 (1939). Each of these cases said in dictum that the Tenth Amendment did not amend Article V. That question was addressed directly in U.S. v. Sprague, 282 U.S. 716 (1931), and decided in favor of the validity of Prohibition and the absence of any implied amendment of the amending clause.[Note 17]

If the Eighteenth Amendment and the cases upholding its validity raised Selden Bacon's ire, he was plunged in despair by the holding of Leser v. Garnet, 258 U.S. 130 (1922), which upheld the validity of the Nineteenth Amendment (Women's Suffrage). Several states had tried to rescind their ratifications of the Nineteenth Amendment by stating in their constitutions that their regrettable votes were utterly inoperative and void. The Supreme Court disallowed the rescissions, stating,[Note 18]

[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]

Unless and until [Article V] be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification.

Undeniably we are left with a clear statement of law but no solution to the problem of 1300 tyrants on a long leash, capable of erasing all that we hold dear. The Sprague court did not address the threat to our liberties inherent in an omnipotent AC. Possibly it refrained because the difficulty of amendment means that the monster is partially under control, or because, in fact, the monster is ourselves. A desire to limit the amending power, or to make it more difficult —not the same thing— shows a distrust for democracy or a denial that in general the people deserve what they get.

The clear statement of law in Sprague is that the Tenth Amendment has not impliedly amended Article V. It follows that no self-amendment has occurred from that direction. Sprague also says that, apart from the explicit limitations stated in Article V itself, two of which have expired (repealed by sunset clause), the federal amending power is omnipotent. The law in the United States is that roughly 2000 people can, legally, repeal all the constitutional limitations on government and guarantees of liberty.[Note 27]

Note that Prohibition was finally repealed by the Twenty-First amendment (1933), for which Congress stipulated the convention method of ratification. It is the only amendment to the federal constitution ratified in state conventions. The convention method was chosen to prove that the people actually disapproved Prohibition, to satisfy many of the wounded interests left over from the controversial ratification of Prohibition itself, and to demonstrate the widespread conviction that the amendment process had been craftily manipulated for Prohibition by a small minority of religious zealots alienated from the popular will.[Note 28]

Before leaving this topic I must remark on the boldness of U.S. v. Sprague, 44 F.2d 967 (1930), the New Jersey District Court case that was overturned by the Supreme Court. The District Court in Sprague actually held the Eighteenth Amendment void, and to do so it disregarded or even "reversed" three recent Supreme Court decisions. It finds an amendment of the constitution to violate the constitution, which is much rarer than to find a violation to amend (see Sections 8.B, 21.C). It is the only case ever to hold a federal constitutional amendment unconstitutional, either before or after ratification. The audacious and erudite opinion by Judge Clark[Note 29] does not agree with the plaintiff that the Tenth Amendment has amended Article V,[Note 30] but instead relies on "principles of political science"[Note 31] that require representative decision-making in a democracy. Judge Clark virtually admits that he is inventing law.[Note 32]

An alternative ground of his holding is that, even if Congress had discretion under the principles of political science to select the method of ratification, it abused its discretion by choosing legislative ratification for the Eighteenth Amendment.[Note 33]

Judge Clark closes with the hope that one day someone will challenge the Eighteenth Amendment under the Due Process clause of the Fourteenth Amendment. For if vaccinations do not violate due process because they are actually effective against an actually undesirable disease like smallpox, Jacobson v. Massachusetts, 197 U.S. 11 (1905), then the Prohibition amendment must be tested both for its actual effectiveness and for the actual undesirability of intemperance. His opinion, he says, is based on a "tired eye scrutiny" of the constitution.[Note 34]

C. Was the adoption of the Fourteenth Amendment a case of self-amendment?

The Eighteenth Amendment had already been challenged under the Fourteenth Amendment by the time Sprague was heard in the District Court. In Peter Hand v. U.S., 2 F.2d 449 (CA.7 1924) an opponent of Prohibition challenged the validity of the Eighteenth Amendment on the ground that the Due Process clause required ratification by convention. The court held that the Due Process clause required no such thing, and felt no need to elaborate. The plaintiff had also argued that the Fourteenth Amendment impliedly amended Article V,[Note 35] first by limiting Congress' discretion to call for ratification in state legislatures, and second, by "nationalizing the people" and putting aside the federation of states and state rights. The latter argument is not elaborated in the opinion, but it may have concluded that some form of national referendum is a method of ratification required by the Due Process clause. Again, the court spends little time and few words rejecting the plaintiff's theories. Unfortunately we know no more about the alleged amendment of Article V by the Fourteenth Amendment.[Note 36]

D. The lex posterior principle self-applied

The lex posterior principle allows newer rules to amend or repeal older rules in case of irreconcilable conflict, when both are on the same hierarchical level. It may be considered a rule of construction,[Note 37] but it operates as a rule of change. That is why it is disfavored: it results in the repeal of a rule not directly intended to be repealed. As a rule of change, could it be applied to itself?

The answer is yes. For example, suppose that the lex posterior principle were made a positive statute directing courts in the interpretation of a criminal code, and that subsequently the legislature adopted a statute saying, in effect, "in cases of irreconcilable conflicts between criminal statutes, preference shall be given to that which favors the defendant." The new rule could offer any different rule of priority, provided that it were silent on its effect on the lex posterior statute and conflicted irreconcilably with it. If we follow the new rule of priority, the lex posterior statute will be followed when it favors the defendant, abandoned otherwise. If we follow the lex posterior statute, we favor the new rule of priority, thereby causing the self-repeal pro tanto of the lex posterior statute.

Notes

1. Note that while statutes are a rule of change for statutes, this power can normally be exercised only by later statutes over earlier ones. A statute cannot in general amend or repeal future statutes, for example, by stipulating its own priority in case of conflict with subsequent legislation. For a rare of example of the latter, see the Canadian Bill of Rights, discussed in Appendix 3, note 2. Other examples will occur whenever a statute has a provision prefaced by words such as "notwithstanding any other paragraph of this section", or "nothing in this section shall be construed to deny...." If other parts of the statute are later amended, the older "notwithstanding" clause will presumably still control. However, this may be due less to the self-elevating character of the clause than to the legislative intent revealed by the self-elevating language.

When a constitutional rule stipulates its own immunity to future amendment, or its own priority over future amendments, it is self-entrenched. For the effect of self-entrenchment on the paradox of self-amendment, see Sections 8, 9. For the view that entrenchment is the temporally symmetrical correlate of the lex posterior principle, see Section 9.D. [Resume]

2. See the previous note and Sections 8 and 9 above. [Resume]

3. The relation between the lex posterior and the lex superior principles is well laid out by Alexander Hamilton in Federalist #78. [Resume]

4. For example, Carman v. Hare, 26 Mich.App. 403, 182 N.W. 2d 563 (1970), vacated 384 Mich. 443, 185 N.W.2d 1. Carman held that an amendment is presumed to be intended to amend only those provisions of the text that it explicitly cites. The court is here applying a requirement of "germaneness" as a condition of amendment, found in the constitutional law of many states. Its effect is to make amendment by implication either impossible or a question of intent. [Resume]

5. A good example of the latter is Lester Bernhardt Orfield, Amending the Federal Constitution, University of Michigan Press, 1942, at p. 12:

[A]n amendment is of even greater import than the original provisions of the constitution since it automatically repeals all clauses inconsistent with it.

Orfield cites the following authorities for his proposition: Johnson v. Tompkins (C.C.Pa. 1883), Baldwin Fed.Case No.7416; Osborne v. Nicholson (C.C.Ark. 1870) I Dill. 219, Fed.Case No. 10595; University v. McIver, 72 N.C. 76 (1875); and Grant v. Hardage, 106 Ark. 506, 153 S.W. 826 (1913). [Resume]

6. I presume that no provision is exempt from explicit repeal, except possibly (1) self-entrenched provisions, for which see Sections 8 and 9, and (2) the AC itself, for which see Part One. [Resume]

7. For example, Prout v. Starr, 188 U.S. 537, 543 (1903) (the Eleventh Amendment does not bar inquiry into violations of the Fourteenth Amendment even when the inquiry takes the form of a suit against a state Attorney General):

The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity.

Prout relies on what I have called the homogeneity of the constitution, the theory that new amendments and conflicting preexisting sections coexist in the manner of inconsistent sections of the original text, none amending any other, and none hierarchically privileged because it is newer.

For a recent case that might be interpreted to deny the homogeneity of the Eleventh and Fourteenth Amendments, see Fitzpatrick v. Bitzer, 427 U.S. 445 (1975). The Supreme Court allowed an award of attorney's fees pursuant to a statute adopted under Section 5 of the Fourteenth Amendment, a statute that otherwise would have been barred by the Eleventh Amendment. Hence Bitzer might be read for the radical proposition that even statutes adopted under newer amendments partake of the lex posterior principle and impliedly repeal or at least supersede inconsistent earlier constitutional amendments. This would extend the lex posterior principle in a way that overturned the lex superior principle. [Resume]

8. Lester Orfield, op. cit. at p. 100. [Resume]

9. The Tenth Amendment in its entirety reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Resume]

10. Selden Bacon, "How the Tenth Amendment Affected the Fifth Article of the Constitution," Virginia Law Review, 16 (1930) 771-79. [Resume]

11. Henry W. Taft, "Amendment of the Federal Constitution: Is the Power Conferred by Article V Limited by the Tenth Amendment?" Virginia Law Review, 16 (1930) 647-58. [Resume]

12. U.S. v. Sprague, 282 U.S. 716, 734 (1931). [Resume]

13. Bacon op. cit. at p. 781 (emphases in original). [Resume]

14. Ironically, the same principles and fears that motivated Bacon led to the proposed Reed-Walter amendment to Article V, which would (inter alia) have abolished the convention method of ratification. See James P. Murtagh, "Procedure for Amending the Constitution and the Reed-Walter Amendment," Pennsylvania Bar Association Quarterly, 27 (1955) 90-101. [Resume]

15. Bacon, op. cit. at p. 782. [Resume]

16. Other writers who challenged the validity of the Eighteenth Amendment, either for its content or its defective adoption, included George B. Skinner, "Intrinsic Limitations on the Power of Constitutional Amendment," Michigan Law Review, 18 (1919) 213; Everett V. Abbott, "Inalienable Rights and the Eighteenth Amendment, "Columbia Law Review, 20 (1920) 183-95; Charles K. Burdick, "Is Prohibition Lawful?" New Republic, April 21, 1920, pp. 245-48; D.O. McGovney, "Is the Eighteenth Amendment Void Because of its Contents?" Columbia Law Review, 20 (1920) 499-518; Justin DuPratt White, "Is There An Eighteenth Amendment?" Cornell Law Quarterly, 5 (1920) 113-27; G.W. Hoadly, "Was the Eighteenth Amendment Legally Adopted?" Virginia Law Register, n.s. 13 (1927) 381-83; E.P. Buford, "The So-Called Eighteenth Amendment to the Constitution of the United States," Virginia Law Review, 14 (1928) 432-40; Anon.,"The Eighteenth Amendment —Its Validity— Public Opinion,"Dickenson Law Review, 32 (1928) 223-45; and Howard Lee McBain, Prohibition, Legal and Illegal, Macmillan, 1928.

The proposition that some amendments require ratification by convention was supported by no less an authority than William Howard Taft, in an article published one year before he became Chief Justice of the United States, "Can Ratification of an Amendment to the Constitution be Made to Depend On a Referendum?" Yale Law Journal, 29 (1920) 821. Also see note 28, below. [Resume]

17. Sprague was a test case brought by the Association Against the Prohibition Amendment, using a pamphlet written by Selden Bacon and distributed by the Association, THE X AMENDMENT, ITS SUPREME IMPORTANCE AND ITS EFFECT ON THE XVIII AMENDMENT, New York, 1930. See David E. Kvig, "Amending the U.S. Constitution: Ratification Controversies, 1917-1971," Ohio History, 83 (1974) 156-69, at pp. 162-63. Generally, see C.W. Fornoff, "Ratification of Constitutional Amendments," [on the Sprague case] Illinois Law Review, 27 (1932) 72-75; Anon., "Validity of the Eighteenth Amendment," [on the Sprague case] University of Pennsylvania Law Review, 79 (1931) 807-09; and Clement E. Vose, Constitutional Change: Amendment Politics and Supreme Court Litigation since 1900, Lexington Books,1972, at p. 98. [Resume]

18. Leser v. Garnet, 258U.S. 130, 136 (1922). [Resume]

19. Finis J. Garrett, writing only one year earlier, could not reduce this number much below 4,000. "Amending the Federal Constitution," Tennessee Law Review, 7 (1929) 286-309 at pp.304f. Speaking 10 years before Garrett, Senator Ashurst of Arizona found the number even higher:

We set ourselves up as the leader among the nations in thought and as responsive to the people's will, and yet 4,500 men, if they saw fit, could Prussianize the Republic.

Cong.Rec. 58 (1919) 5697, quoted in Ralph R. Martig, "Amending the Constitution; Article V; the Keystone of the Arch," Michigan Law Review, 35 (1937) 1253-85 at p. 1282. Even if the entire populations of the ratifying states is taken into account, a constitutional amendment may be adopted by a minority of the people, despite the requirement of Article V that three-fourths of the states ratify every amendment. The reason is simply that the population of the least populous three-fourths is less then half of the national population. Joseph R. Long, "Tinkering With The Constitution," Yale Law Journal, 24 (1915) 573-89 (using 1910 census data); Charles L. Black, Jr., "Proposed Amendment to Article V: A Threatened Disaster," Yale Law Journal, 72 (1963) 957-66 (using 1960 census data); Peter Suber, "Population Changes and Constitutional Amendments: Federalism versus Democracy," University of Michigan Journal of Law Reform, 20, 2 (Winter 1987) 409-90 (using all 200 years of census data, 1790-1980). [Resume]

20. Bacon, op. cit. at p. 772. [Resume]

21. The story is told by Solomon Feferman in his biographical essay, "Gödel's Life and Work," in Solomon Feferman et al. (eds.), Kurt Gödel: Collected Works, Vol. 1: Publications 1929-1936, Oxford University Press, 1986, p. 12, and retold by Ed Regis in his Who Got Einstein's Office?, Addison-Wesley, 1987, pp. 57-58. Feferman traces the story to Oskar Morgenstern's reminiscences as told in Heinz Zemanek, "Oskar Morgenstern (1902-1977) - Kurt Gödel (1906-1978)," Elektronische Rechenanlagen, 20 (1978) 209-11, p. 210. [Resume]

22. Bacon, op. cit. at pp. 778, 787. [Resume]

23. The Ninth Amendment in its entirety reads:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. [Resume]

24. Bacon, op. cit. at p. 783. [Resume]

25. Henry W. Taft, op. cit. at p. 652 (emphasis added). [Resume]

26. Sprague, op. cit. at p.733. Cf. Orfield, op. cit. at p. 24: "[T]he Bill of Rights and the amending clause are themselves subject to alteration unless expressly forbidden to be altered." [Resume]

27. A good list of horrors that might arise from the abuse of this absolute power may be found in the Appellants' Brief in the National Prohibition Cases. One horror is the amendment of the AC itself! [Resume]

28. The exciting story is told by David E. Kyvig, Repealing National Prohibition, University of Chicago Press, 1980. See also Everett S. Brown, Ratification of the Twenty-First Amendment, U.S. Department of State, Publication No. 573 (1934), summarized in an article of the same title, American Political Science Review, 29 (1935) 1005-17; D.H. McLucas, "Some Legal Aspects of the Repeal of the Eighteenth Amendment," Illinois Law Review, 28 (1934) 950-58; G.J. Schaefer, "Amendments to the Constitution: Ratification by State Convention," St. John's Law Review, 7 (1933) 375-58; A. Lincoln, "Ratification by Conventions; A Discussion of the Question by What Authority Conventions in the States to Consider Ratifications of Proposed Amendments to the Federal Constitution Should Be Called and Constituted," Massachusetts Law Quarterly, 18 (1933) 287-98; Anon., "Conventions to Ratify Constitutional Amendments," Law Notes, 37 (1933) 121-22 [41-42]; D. Smith, "Has Congress the Power to Call Conventions in the States to Consider Constitutional Amendments?" Journal of the Bar Association of Kansas, 21 (1933) 1-7; R.H. Anderson, "A Proposal to Create Conventions for Ratifying Amendments to the United States Constitution," Florida State Bar Association Law Journal, 6 (1933) 508-10; H.S. Phillips, "Has Congress the Power Under Article V of the Constitution to Call and Regulate the Holding of Ratifying Conventions Independent of State Legislatures?" ibid. 6 (1933) 573-78; R.H.A., "Ratification by Convention or Legislature, A Constitutional Enigma," Georgia Law Journal, 21 (1933) 333-39; N.T. Ball, "Ratification of Constitutional Amendments by State Conventions," George Washington Law Review, 2 (1934) 216-21; and Clement E. Vose, Constitutional Change: Amendment Politics and Supreme Court Litigation since 1900, op. cit., Chapter 5 (pp. 101-37). [Resume]

29. Clark was reportedly advised on the issues of the case by the noted constitutional scholar Edward S. Corwin of Princeton University. See Kyvig, op. cit. (1974) at p. 163, and Vose op. cit. at 98. [Resume]

30. This proposition was rejected by the Supreme Court in four cases, three times in dictum and once in Sprague, and here even Judge Clark rejects it. A sustained critique of the idea is Walter F. Dodd, "Amending the Constitution," Yale Law Journal, 30 (1920) 321-54. [Resume]

31. U.S. v. Sprague, 44 F.2d 967, 981, 984 (1930). [Resume]

32. "Even if this opinion meets with a cold reception in the appellate courts, we hope that it will at least have the effect of focusing the country's thought upon the neglected method of considering constitutional amendments in conventions." Ibid. at 967. [Resume]

33. Ibid. at 985. [Resume]

34. Ibid. at 974. [Resume]

35. The important part of the Fourteenth Amendment for this discussion is the application of the "due process clause" to the states. The Fifth Amendment had applied the clause to the federal government. [Resume]

36. A New Jersey plaintiff once argued that the Fourteenth Amendment nullified the New Jersey state AC. Jackman v. Bodine, 78 N.J.Super. 414, 188 A.2d 642 (1063). He claimed that the absence of any provision for citizen initiative or popular referendum violated the Due Process clause. Because New Jersey state senators were not elected on a one-person, one-vote basis, he also claimed that the role of the state senate in the amendment process violated the Equal Protection clause. The court held against him on both counts, in conclusory language. Of course, even if the plaintiff's theories had been vindicated, they did not imply that self-amendment had occurred.

Note that a section of the New Mexican AC has been struck down for violating the one-person, one-vote principle. State v. State Canvassing Board, 78 N.M. 682, 437 P.2d 143 (1968). See Arthur O'Neal Beach, "Constitutional Revision —Constitutional Amendment Process [in New Mexico]," Natural Resources Journal, 9 (1969) 422-29. [Resume]

37. Alexander Hamilton, Federalist #78: "But this is a mere rule of construction, not derived from any positive law but from the nature and reason of the thing." [Resume]

This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.

Peter Suber, Department of Philosophy, Earlham College, Richmond, Indiana, 47374, U.S.A.
peters@earlham.edu. Copyright © 1990, Peter Suber.