Paradox of Self-Amendment by Peter Suber 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. 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. 18. Leser v. Garnet, 258U.S. 130, 136 (1922). 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). 20. Bacon, op. cit. at p. 772. 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. 22. Bacon, op. cit. at pp. 778, 787. 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. 24. Bacon, op. cit. at p. 783. 25. Henry W. Taft, op. cit. at p. 652 (emphasis added). 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." 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! 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 117