the power of "amendment" contained in Art. V does not authorize the invasion of the sovereign powers expressly reserved to the states and the people by the Ninth and Tenth Amendments, except with the consent of all the states….
If amendment under Art. V were unlimited, three-fourths of the legislatures would have it in their power to establish a state religion and prohibit free exercise of other religious beliefs; to quarter a standing army in the houses of citizens; to do away with trial by jury and republican form of government; to repeal the provision for a president; and to abolish this court and with it the whole judicial power vested by the Constitution.
[Footnote 1: Id., pp. 357-361.]
Elihu Root, preëminent as a constitutional lawyer, appeared as counsel in one of the test cases. His main contention was summarized in his brief as follows:[1]
(a) That the authority to amend the Constitution is a continuance of the constitution-making power and as such is a power quite different and altogether distinct from the law-making power under the Constitution.
(b) That a grant of the one power does not include or imply a grant of the other.
(c) That the natural and ordinary meaning of the words used in Article V of the Constitution [the article providing for amendment] limits the power granted to the function of constitution-making as distinguished from ordinary law-making.
(d) That the purposes of the grant imply the same limitation.
(e) That other parts of the Constitution—notably Article I—express the same limitation.
(f) That the existence of authority under Article V to enact ordinary laws regulating the conduct of private citizens under color of amendment, would be so in conflict with the fundamental principles and spirit of the Constitution that such a construction is not permissible.