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.

[Footnote 1: For the Reporter's Summary see 253 U.S., pp. 361-367.]