Amending the Unamendable: The Rhode Island Problem

Article V of the United States Constitution describes the process by which the document may be amended. The Constitution can be amended, Article V says, when two-thirds of Congress and three-fourths of the states choose to do so (or when a constitutional convention is called and three-quarters of the states ratify). It then goes on to place a limitation on the content of potential amendments:

The Senate, if you remember, gives two seats to each state, regardless of the state’s population. So North Dakota has the same number of senators as California, even though California has far, far more people. The meaning of the above Article V clause is pretty clear: you can’t pass an amendment that would give one state fewer senators than other states unless that state consents. Fine.

So let’s say the whole country is sick of Rhode Island running its yap in the Senate. Every other state hates Rhode Island and would dearly love to strip it of its senators. Rhode Island, naturally, opposes this. Article V says that the other states can’t amend the Constitution to deprive Rhode Island of its senators without its consent.

Here’s my question, though.

  1. Could the other states pass two amendments, the first deleting the sentence of Article V forbidding them from depriving Rhode Island of equal suffrage in the Senate, and the second taking Rhode Island’s senators away?
  2. If so, how many states would it take to do that? Would three-quarters be sufficient, as with a regular amendment? Either way, doesn’t this render that portion of Article V completely empty?
  3. If not, what’s the constitutional authority that says that Article V itself can’t be amended? Is there anything else that can’t be amended, even though the Constitution doesn’t say so explicitly?

Interesting. It sure looks like that is one clause which the states decided could NOT be amended out of existence. I would presume that, if the other states decided to do it, RI would be justified in withdrawing from the Union.

Here’t the entire article, for those interested:

–John Mace, a Rhode Island native

So you’re saying that the other states couldn’t amend Article V, or that they could?

That they couldn’t, but if they tried to, RI would be legally justified in seceding.

If the other states can chage it, why is it there?

If the other states can’t change it, why didn’t they bother to say so in the Constitution? Something like:

[P]rovided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; that no state, without its consent, shall be deprived of its equal suffrage in the Senate; and that no amendment shall in any manner affect the provisions of this clause.

How hard would that have been? Why shouldn’t the text – and what it does and doesn’t say – simply control?

That would clarify things more, but it would also be redundant. They might as well have added: “and we really, really mean it!”

The article outlines the process by which amendmentments can be added, provided the two qualifying clauses are adhered to, one of which is that no state is deprvied of its equal suffrage in the Senate. It would be allowable to modify the number of Sentors each state has, provided all the states still have an equal number.

The framers of the Constitution were lawyers, not hackers, and the Constitution is a document to be interpreted by humans, not computers. They didn’t include a phrase “…and that no ammendment shall in any manner affect the provisions of this clause”, because nobody in their right mind, at the time, would have thought such a phrase necessary. The restriction on ammendment cannot itself be ammended, because if it could be, it would be meaningless, and a constitutional lawyer is expected to interpret the Constitution in such a way that it has some meaning.


So is it the short elapsed time between the first and second amendment of my example that’s bothering you? What if three-quarters of the states got together and passed an amendment deleted that portion of Article V but not having any particular state in mind, and then five years later got sick of Rhode Island and stripped its senators? Could they do that? Or what if all the states decided that that portion of Article V was silly, and unanimously voted to redact it? Would that be doable?


Can any of Article V be amended, in your view?

(An excellent, intriguing, and thorough treatment of this problem, by the way, was done by Peter Suber and is available here, along with more than you ever wanted to know about self-amendment and reflexivity.)

Now, that’s an interesting question!!

Presumably, the states could unanimously throw the whole constitution in the garbage, or flush it down the toilet to use a contempory phrase.

But wouldn’t that amount to revolution, even if peaceful? IOW, revolution is always an option, though there is no legal framework for it. You just need to make sure you have the numbers and/or the guns on your side.

There’s some feeling that if Congress called a convention at the request of the states, the convention would have the power to rewrite the entire constitution. Of course, it would still need to be approved.

Another argument would be that if a state ratified an amendment removing the clause, that would imply consenting to having their representation in the Senate changed. So an amendment to strip Rhode Island of its senators would apply if Rhode Island had previously agreed to waive its rights under the article. And ratifying the amendment would be such a waiver.

I think they theoretically could do so but it would require two full amendments, as number 2 has no effect until #1 passes. And it’s fundamentally improbable in any form.

Excellent point. :slight_smile: Would Rhode Island have to be knowingly waiving its rights in order for this to work, though? I mean – and bear with the far-fetched hypothetical – what if all the other states convinced Rhode Island that the purpose of the amendment was ultimately to strip Delaware of representation…and Rhode Island, despising Delaware, happily went along with the supermajority? Rhode Island has then consented to the removal of the clause without consenting to the removal of its own representation – could such representation nevertheless be stripped?

One might ask: Could an amendment be passed (per the procedure in article V) which declares the entire constitution null and void. I think it’s too easy to take this discussion into fantansyland. Ultimately it all comes down to not pushing people to the point where they take up arms against the government.

This is the “inconsistency” that Godel is alleged to have told Einstein that he found in the Constitution, one that he said might lead to a dictatorship. See Pete Suber’s The Paradox of Self-Amendment: A Study of Law, Logic, Omnipotence, and Change.


Boy, I wish I’d cited to that. :wink:


Well, then don’t take it there! :slight_smile: There are interesting and fruitful things to chew on by way of this thought experiment regarding plain meaning and constitutional interpretation, among other things.

You’re right. Sorry.

Suppose that the clause about equal Senators had been in another article, and not attached to the amendment process. Would that change things?

Oops, sorry, Gadarene. As soon as I saw your OP, I searched for the book, having read it some time back. By the time I got to your one-word link, it was already non-blue and didn’t pop out at me. That, plus I’m old.

Note that a “normal” (non-unanimous) amendment could give states one or three Senators each, permit D.C. or Puerto Rico to elect Senators, etc. (Some of this might even be done by statute, as in the law permitting D.C. to elect a “commissioner” with voice but no vote in Congress.) And, arguably, a “normal” amendment could repeal the Article V provisions, permitting another “normal” amendment that, e.g., said that "States with a population of less than one million resident citizens shall be entitled to elect a single Senator; States with a population of over fifteen million resident citizens shall be entitled to elect three Senators; and all other states shall be entitled to elect two Senators as heretofore provided.