This might be a GQ question, but I am seeking opinions from among our attorneys, so mods, please move it as you see fit.
Article V lays out the process necessary to amend the Constitution.
It has another very unusual provision – it prevents an amendment to the constitution that would deprive any state of its voting rights in the Senate without that state’s consent.
In another thread, at least one person has claimed (and another implied), that this provision of the constitution cannot be amended. Pleonast believes the Supreme Court would intervene to prevent any amendment to Article 5 because “otherwise the prohibition would be ineffective.”
It seems to me that the US can’t amend the constitution right now to strip voting rights from one or more states, but that it CAN amend the constitution to remove this provision from Article V, and then later (if the amended Article V allows it) enact a law or amendment to strip those voting rights from states.
I was taught as a child that nothing in the constitution is set in stone, it is all subject to change if the people will it. Perhaps this is a remnant of the mythology about the Constitution I learned in my youth – the greatest political document ever, perceiving in advance the need for revision by future generations, blah blah blah.
I have a great deal of trouble imagining that this is the one part of the constitution that IS set in stone. Can any of our legal beagles straighten me out here?
One more related question… Suppose there was a movement for an amendment to strip a state of Senate voting rights without amending Article V? How would the SC step in to an amendment process to stop it? Is there any precedent at all for the Court to intervene and stop an attempt to ratify an amendment?
No amendment has ever attempted to change a part of the Constitution prohibited from being amended. If the Supreme Court can’t invalidate an amendment that makes a prohibited change, then the prohibition is useless.
If the part of the Constitution that prohibits certain amendments can itself be changed, then, again, there’s little purpose in prohibiting certain amendments.
Which is a more likely scenario: 1. The States can never be denied equal representation in the Senate.
or 2. The States can be denied equal representation in the Senate, but only after an extra-long amendment process.
Can you name any amendment that was overturned by SCOTUS?
An amendment that invalidated that part Article V would be just as valid as the The Eleventh, Fourteenth, Sixteenth and Twenty-sixth Amendments.
SCOTUS makes decisions based on the current law and constitution, as amended that prohibition would not be. They have noted in the past that the amendment process political and outside the purview of the Court.
The only question is if the Union would support it’s passing.
As to the purpose in the constitution it served it’s purpose by getting the southern colonies to agree to sign and join the union.
If an amendment could be passed, for example to move the senate to a national public elected body, I know of no rulings by SCOTUS that would indicate they would overrule it based on prohibition of change.
When I was first learning about the Constitution, I once thought that the double-amendment process would be a viable work-around to the equal-representation guarantee. But after some more thought, I came to the argument I posted above.
I think the writers of the Constitution (being succinct to a fault) didn’t explicitly protect that clause of Article V because it was obvious to them that you shouldn’t be able to change the prohibitions. I would be interested to know what earlier drafts had and what contemporary thought was. I do know that equal representation in the Senate was necessary to get the smaller states to ratify the new agreement. I would guess the guarantee against changing it was also needed.
Fallacy of the unexcluded middle, Pleonast. The actual scenario as I see it is that this provision is unenforceable. By moving to amend them, the institutions of government are doing an extraconstitutional, but not illegal, revision of the organic laws in the same, perfectly acceptable way in which the Articles of Confederation were ignored when they ratified the Constitution.
The amendment I am thinking of is not an amendment to change a part of the constitution that is prohibited from being amended. What is prohibited is stripping a state’s voting rights. What I am thinking of is an amendment to change the nature of what the prohibition IS.
And it’s not an extended amendment process. It’s probably two separate amendment processes, the first to allow for the constitutionality of the second.
I don’t imagine for a second that either amendment would is likely to be proposed, or has any chance of passage if it were. This is purely hypothetical.
If words mean what they say, then the Constitution can be treated as a game of “Nomic.” It can be approached like any self-modifying body of rules.
If the rules really mean what they say, then, yes, obviously, the prohibition itself would be removable by amendment, and then, in a subsequent amendment, we could take away Connecticut’s two Senators.
If the framers had been really serious, they would have said that the prohibition of removal of Senate representation was, itself, not amendable. But, then, they were deprived enough to live in an era when self-referentiality wasn’t a hot topic.
Why should the Article V provision be unenforceable? Why couldn’t the Supreme Court enforce it? Since they have the power to declare statutes unconstitutional, I see no reason why they would not have the power to declare amendments unconstitutional.
Of course the whole Constitution can be scrapped (as happened to the previous Articles) and there is a mechanism to do so. But I think were discussing the regular amendment process, not a Convention.
Yes, I know. But if changing that Article V provision made it possible to remove equal representation, I think the reasonable response is that that change is unconstitutional. And I think the Supreme Court certainly has jurisdiction to make that determination.
That’s what I mean by “extended amendment process”. Do you really think that the intent was to be able to deny the states equal representation, but only via a two amendments? Instead of never (period)?
Unenforceable in the legal sense, that is – meaning not that a court can’t enforce it, but that a court reading the situation correctly would refuse to enforce it.
The Articles example is illustrative – what the adoption of the Constitution proves is that if the institutions of government accept a new organic regime, it becomes the actual, functional new regime regardless of whether those institutions had the power to do so under the existing regime. Ergo, if the institutions of government accept a regime in which we have the Constitution as written except that Congress and the States acting in concert do have the power to change the rules of representation, then that regime becomes active.
Look at it this way – if the non-amendment provisions of the Constitution are enforceable, then they’re eternal even if you otherwise scrap the whole Constitution. That’s obviously nonsense. No organic document can make itself eternal, although they purport to do so all the time (as did the Articles). If the institutions of government choose to adopt a new organic document, then that choice is effective simply by the act of adhering to it instead of the old. And in choosing to amend the unemendable, the nation would simply be doing that.
They’re probably the last recourse in a case of a disputed amendment. Maybe Connecticut missed the deadline by a couple of minutes, or maybe there was a missing quorum call in Kentucky, or maybe the Deputy Secretary of State of Indiana certified it in violation of his boss’s instructions, or… Then, yeah, the Supremes might say, “This amendment was not ratified properly and is null and void.”
But how could they complain if it contradicted some other clause of the constitution? That’s what amendments do! It’s what they’re for!
Obviously, no, the framers never thought it would come about that way. But they failed to close the loophole, and, like any other legal technicality, it’s entirely possible for us to walk right through it.
Do words have meanings? Or are intents and traditions superior to actual texts?
Now who’s missing the excluded middle? It’s quite possible to enforce a non-amendment provision for a few specific circumstances, while still being open to a complete rewrite jettisoning the old.
But otherwise, I think I understand what you’re saying, although I don’t agree with your assessment.
Do you believe the Supreme court has the power void an amendment due to violation of the Article V clause forbidding certain amendments?
To be honest, I dunno. I can guess that they might well try to exercise that power, but I can’t guess how it would turn out.
It is my opinion that they do not have the power to overrule the “end run” around that prohibition which is the basis for the discussion. But, again, who can know? They might simply arrogate that power and exercise it. And with what result? Again, no one can know.
Maybe the Senate would simply ignore them, and refuse to seat the debated Senators. Maybe the Capitol Police would require backup from the Administration, and the DOJ or even the DOD would become physically involved. Or, maybe the Administration would side with the debated Senators, and escort them to their seats in the Senate under armed guard.
The problem is that the proposition is so incredibly far-fetched, we can’t predict how the extra-constitutional wrangling would go.
But if the terms and text of the constitution say what they seem to say, then, in my opinion (and I’m not likely to be teaching con law at Harvard any time soon) the double-amendment bypass would work. It first removes the obstructing language, and, then, in the subsequent amendment, removes the unwanted Senators.
Could even lead to a new Civil War! (Iron Man was such a twerp! Captain America was right all along!)
This is just restating the question, though. Certainly, if the Supreme Court (and the other institutions of government) accept the change, then it becomes active. The question, though, is would the Court accept it. Part of the Court’s basic role, after all, is to thwart changes that other institutions of government have agreed to, where those changes violate the Constitution.
Maybe it’s just semantics, but I think the Articles example is off point, because the Constitutional Convention didn’t amend the Articles; it replaced them. No one takes the position today that the US Government is operating under the Articles of Confederation, as amended. In that sense, the Convention was an extra-legal mechanism, akin to a coup d’etat (albeit peaceful).
I think there’s a difference between agreeing to amend the Constitution, according to the procedures it provides, and agreeing to replace the Constitution, regardless of its provisions. Amending the unamendable parts may be desirable or convenient in the right circumstances, but that strikes me as as a political act, not a legal one. Legally, I don’t see how the Court could do otherwise but strike down any attempt to amend the unamendable. Its authority derives wholly from the Constitution, and if it were to agree to this sort of nullification, it would be abdicating its Constitutional role. So when the citizens of State X who are losing one or both senators sue the Secretary of State to have the amendment declared void, and when their senators sue the Senate to be seated, I think they’re going to win in court.
Can we strip a state of its senators? Of course. But I think we ultimately have to do it with locked doors, handcuffs, and guns, and recognize it as a revolution, rather than a legal proceeding.
It’s quite possible to enforce a non-amendment provision for a few specific circumstances, while still being open to a complete rewrite jettisoning the old.