The Limits of the Amending Power
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tically alter the structure as to create a new form of government. Thus an
amendment abolishing the States or the separation of powers, though constitutional in a legal sense, would in reality be destructive of the American constitutional system as we know it. Even foolish amendments, however, are constitutional, and it is the prerogative of the American people
under Article V to make fools of themselves and to abolish their form of
government and replace it with a new system if that is their wish.
Fortunately, the Constitution has always enjoyed the overwhelming
support of the American people, and such revolutionary amendments
have never been seriously considered. A more direct and continuing
threat to the Constitution is the frivolous amendment, that is, legislation
presented in the guise of an amendment. Throughout American history,
members of Congress have routinely offered amendments to the Constitution that are designed simply to implement a particular public policy.
In the case of the Eighteenth Amendment, which outlawed the manufacture and sale of intoxicating liquor, they actually succeeded. The subsequent repeal of this amendment illustrates the wisdom of an old political
maxim that is sometimes forgotten: when it is not necessary to amend the
Constitution, it is necessary not to amend it. The distillation and distribution of spirituous beverages could have been prevented by ordinary
legislation, and there was therefore no need for the amendment in the
first place.
No less threatening to the integrity of the Constitution is the tendency
of legislators to introduce formal amendments for the purpose of reversing a recent Supreme Court decision. The amendment process, however,
was intended to correct errors in the original document and to adjust the
Constitution to a changing world, not as a device for controlling the
Court. Unless the Court’s decision is a formidable one substantially altering the distribution of power and the bedrock principles of the system,
an amendment to overturn a particular case may well be an abuse of the
amendment process. Ordinary legislation, such as the withdrawal of jurisdiction, should be considered if it can accomplish the same objective
as an amendment. Whether an undesirable judicial decision should be
corrected by an amendment or by a statute depends, however, on the nature of the case and its constitutional impact. If the amendment is too
narrowly drawn, there is the added difficulty that, even if adopted, it