The Limits of the Amending Power
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slim or nonexistent, according to this view, because it could not succeed
unless the Congress was equally supportive of a wholesale revision of
the Constitution. This is highly unlikely, it is further argued, given the
deep and abiding affection for the Constitution among the American
people.
These matters aside, the convention method has also been advocated
on the ground that it is an effective political tool of the States for pressuring Congress into proposing amendments, the assumption being that,
once the requisite number of States had called for a convention, Congress
would be inclined to step in to take control of the process. By proposing
the amendment itself, Congress would thereby eliminate the need for a
convention, and the question of a ‘‘runaway’’ convention would be moot.
All of this is speculative, however, and the course of action that might be
taken in the event a convention is called cannot be known with certainty
until it happens.
Fourth, the method of amendment in Article V recognizes and confirms the republican principle upon which the Constitution is based. Although the States, in their sovereign capacity, make the final decision on
whether to ratify or reject an amendment, they act not alone but through
representatives of the people. It is, then, the people in the several States,
speaking through their elected representatives (or their convention delegates), who possess the ultimate authority to amend the Constitution.
The Limits of the Amending Power
Moreover, the Constitution implicitly acknowledges the right of the people and the States to add whatever amendment they desire, the only exception being that they cannot amend the Constitution so as to deprive a
State of equal representation in the Senate without its consent. Article V
also banned amendments before 1808 dealing with the importation and
taxation of slaves, but this exception has obviously expired. Although
there are no other words of limitation in Article V concerning the nature
and substance of an amendment, parties opposed to certain amendments
over the years have argued that an amendment which subverts or destroys a basic principle of the Constitution is itself unconstitutional. The
Nineteenth Amendment granting women the right to vote, for example,