Paradox of Self-Amendment by Peter Suber The arguments in favor of particular implied limitations are easier to evaluate than arguments based on the concept of sovereignty or delegation. One of the most serious arguments, which has led to much scholarly comment and even litigation, is the view that the federal AC has been impliedly amended, and limited, by the Tenth and Fourteenth Amendments. This theory asserts that the federal AC is limited in that proposed amendments that diminish the people's rights must be ratified, if at all, by state conventions rather than state legislatures. Congressional discretion to choose the method of ratification may have been unlimited in 1789, under Article V, but was limited (this theory goes) by the Tenth Amendment in 1791 and again by the Fourteenth Amendment in 1869. This argument is considered and rejected in Section 16 below. The theory that the AC may be limited or amended by judicial review is considered in Section 15. William Marbury[Note 33] argued in 1919 that the amending power is limited by the intent of the framers. To him it followed that amendments must be improvements. Marbury cites the opinion in Livermore v. Waite, 102 Cal. 113, 119, 36 P. 424 (1894) (emphases in original): The term Amendment implied such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purposes for which it was framed. This is an ingenious way to multiply the implied limitations on the amending power. Unfortunately it founders on the contestability of anyone's notion of what an improvement is. The only test compatible with the spirit of the constitution is whether the alleged improvement was ratified in the way specified for amendments. Marbury is not daunted by this, and is quite sure that the framers did not intend that the amending power should be used to infringe on state powers or to enfranchise women. He argues by analogy to the taxing power, which is not expressly limited in the constitution but which was "wisely" held to implied limitations by the Supreme Court when it threatened to destroy the states. Marbury cites Collector v. Day, 11 U.S. 117 (1870) and Lane County v. Oregon, 7 U.S. 71 (1868). The taxing and amending powers are equally delegated powers, he argues, and therefore are equally subject to such implied limitations.[Note 34] Marbury even worries that amendments should not be imposed on states against their will, implying that all ratifications should be unanimous,[Note 35] which contradicts both the explicit language of the constitution and the intent of the framers. He argues that the prohibition against depriving a state of its equal suffrage in the Senate without its consent implies a prohibition against any indirect interference with the functions of a state.[Note 36] He makes clever but sophistical use of the principle that Congress cannot make irrepealable laws by arguing that "legislative" amendments are impermissible because (as provisions of the constitution) they cannot be repealed by Congress.[Note 37] An amendment is "legislative" rather than "constitutional" when it deals so specifically with any subject that it is more appropriate for Congressional action and statutory regulation than constitutional amendment. Marbury believes that all these arguments invalidate the Nineteenth Amendment (Women's Suffrage), and would invalidate the three Civil War Amendments if they had not been cured by long acquiescence.[Note 38] In short, he believes the implied limitations on the amending power protect state prerogatives and prohibit the amendments that abolished slavery and enfranchised blacks and women.[Note 39] Aside from the argument against legislative amendments and the analogy to the taxing power, Marbury's arguments are clearly, almost comically, ideological rather than legal. He well illustrates how debates on the amending power raise the principles and passions surrounding our most basic rights and institutions: for an omnipotent amending power can sweep them all away. One may always read clauses of the constitution in light of the framers' intent, when known. But the AC will always be a special case. To say that the framers never envisioned that the amending power might be used to enfranchise blacks or prohibit the sale of liquor may be true, but to cite such facts as if they limited the amending power is to forget that the clause we are interpreting authorizes change. Despite the framers' own substantive policies and preferences, in the AC they gave future generations the power to make whatever changes the people of those generations liked well enough to garner the wide consent stipulated in the AC. The evidence lies in Article V itself. Aside from the one substantive obstacle preserving the equal suffrage of the states in the Senate, the framers put only procedural obstacles in the way of amendment. Marbury's analogy of the amending power to the taxing power breaks down and does not prove his point. First, the amending power might not be "delegated" as the taxing power is —although I will not enter the lists on that controversy. Second, the taxing power was not included in the constitution to make possible the peaceful adaptability to changing circumstances, and is not intended to change basic governmental structures. The amending power was and is these things, and to allow it to change some basic structures and not others is an arbitrary division not justified by the language of the constitution or even the intent of the framers. Marbury fails to show why states cannot consent through the amendment procedures to give up traditional prerogatives.[Note 40] The argument that legislative amendments are prohibited usually rests on the declaration in Article I, Section 1, that "all legislative powers" are vested in Congress. The argument that a legislative amendment is impermissible because Congress cannot repeal it is specious, for the rule against binding one's successors irrevocably is satisfied as long as Congress makes no immutable statutes or contracts, and the amending body makes no immutable amendments. Neither Congress nor the amending body binds itself irrevocably when Congress and three-fourths of the states together adopt a revocable amendment. As for the former argument that all legislative power is in Article I, and none in Article V, the answer is that "legislative" and "constitutional" amendments differ only in degree of specificity. In making an amendment the people can draw the line wherever they please; if the courts accept it, then it it is a valid part of the constitution.[Note 41] The fact that the courts themselves may draw the line wherever they please, or refuse to draw it at all, suggests that we are not dealing with an inherent limitation on the amending power. Prohibition 50