Passing Unpassable Constitutional Amendments

Article V of the U.S. Constitution describes the process by which the Constitution can be amended. In short, all amendments are legal except:

In short, no amendment could be passed before Jan 1 1808 affecting the slave trade and no amendment can be passed that will affect any state’s equal representation in the Senate. In short, you can’t pass an amendment that says “North Dakota has no senators.”

However, what if we really had it in for North Dakota. The other 49 states have really decided that North Dakota doesn’t deserve it’s senators… heck, they make up 2/3 of the state population anyway. And besides, they’re not going to secede… the Army would just wipe the floor with them.

But we can’t just pass a “no ND senators” amendment… it’s illegal under Article V.

However, what’s to stop us from amending Article V to get rid of the last clause and then passing our anti-ND amendment?

Zev Steinhardt

Pandora’s Box.

Rhode Island would never support. Neither would any of the other smaller states for fear they would be next on the hit list.

It depends if you believe that the interpreter of a legal document should attempt to give meaning to all parts of that document. This is generally the approach to legal interpretation in the US (although it doesn’t always happen that way).

So, if you could amend the constitution to remove the part about not depriving a state of its representation without its consent, then you’ve essentially rendered that clause meaningless. Which goes against the way people usually interpret legal documents in the US.

Duckster, I think the OP is after a legal, constitutional or procedural reason rather than a practical one.

zev, there is no reason why an amendment could not remove the bar to a different amendment, then a subsequent amendment enact the thing that was previously barred.

Wouldn’t it take an amendment to delete the clause about the senate, and wouldn’t such an amendment be illegal according to that clause?

I don’t think there is a legal way to get around that clause.


No, as it bars changes to

and it is itself in Article 5. It could bar changes to itself, but does not.

To give a more realistic example of why that might happen, suppose the people of the United States, some 200 years from now, decide that the concept of a non-proportional representative legislative chamber should be jettisoned. They wish to replace it with a chamber where the votes are apportioned to the states proportional to the amount of business that gets generated. So they first enact a constitutional amendment removing the bar to changes to the apportionment of senators, then they enact an amendment changing how Senatos are apportioned.

Ah, but who’s going to enforce that? What if the Supreme Court is sympathetic to the cause of removal?

The Supreme Court has no role in the amending process and I see no reason why an amendment to remove that clause could not be made (aside from the political impossibility). Now if the clause also declared itself to be unamendable…, well that would be an interesting logical paradox.

Anyway, the constituttion seems to be a dead letter these days. All you would to do is claim that it was to fight terrorism and no one would object.

Well, wouldn’t amending that clause itself (without the consent of North Dakota) be considered “depriving without its consent”?

Why? Amending the can’t amend clause would, at best, give rise to every state having a claim of unconstitutionality, or no state. To claim it was unconstitutional, one would have to assert that, by amending the clause, one was amending the other clause, and that’s plainly not true.

Hari Seldon, a simple discussion of a relatively factual question of this nature really doesn’t need politicization with your current bugaboo about administration actions, does it? :frowning:

Not officially, but what is one’s recourse if one feels that an Amendment in Progess is wrong? There’s not a Constitution Police Force anywhere to prevent an “unpassable” amendment from going through the process. Someone would have to sue, and the issue would undoubtedly end up before the SCOTUS. Whose decision on the rightness or wrongness of the proposed amendment would be final.

I grew up in ND.

Careful…if we had left the Union, we’d have been the 3rd highest nation with nuclear warheads!


{Don’t know if that was still true, but when growing up you couldn’t swing a dead cat without hitting a missle silo.}

Since the Supreme Court is the body that ultimately interprets the Constitution, it does have a role in the amendment process. It could refuse to consider an amendment valid.

For example, let’s say that an amendment was passed saying “North Dakota gets only one senator”. When the newly unemployed senator sues, the Court could say “That amendment is invalid, the senator gets his seat back”.

Presumably, the Supreme Court considers the validity of every amendment bases its opinions on.


I’d think that if 3/4 of states (the minimum necessary for the amendment to pass) ratify such an amendment, that leaves 1/4 that could claim the effects are “without their consent.”

But the act of amending Article V does not directly affect any state’s representation in Congress. Just because it could lead to that in the future doesn’t necessarily cause this amendment in violation of the “deprived of representation” clause.

Zev Steinhardt

I would think that the guarantee of equality of sufferage is an essential element in the equality of suffrage. If the right sufferage of some only exists at the mercy of others, and the right to sufferage of others is not, then it’s not an equal right.

But this isn’t the right of equality of sufferage for human beings, it is the right of a political organization, a state.

The Constitution guarantees that no amendment can be passed that deprives a state of its equal sufferage in the Senate. But the Consitution can be amended to remove this clause. To argue that this clause is unamendable is to argue that the decisions of the writers of the constitution have the power to bind future generations for all time. That can’t be the case. At a minimum, we have a constitutional procedure for calling a Constitutional Convention, and that convention could throw out the entire current constitution and write something completely different, and it would go into effect if ratified by the states.

If the people of North Dakota are annoyed enough about it, they can refuse to ratify the new constitution and secede.

The Constitution wasn’t handed down by a divine being, it was created by human beings to solve the problems of human beings. If the people of the United States don’t feel bound by the present Constitution, it won’t work to point out that the present Constitution says that they must be bound by the present Constitution. The American people are bound by the Constitution because we agree with the principles of the Constitution, not because the Constitution says we are.

My understanding of the constitution is that there is no no recourse whatever to an amendment. It cannot violate constitutional law (unless it amends one of the “unamendable” clauses). But removal of that clause does not itself violate the constitution. If, later, some state were to be deprived of its equal representation, that would not violate the amended constitution either.

Incidentally, the state of Texas could choose to divide itself into up to five states and thereby you would have up to ten senators fron TeXas. Of course, they would actually be from Texas I,…, Texas V.

And I do apologize for my political comment. It does not belong on this forum, but sometimes…

I agree with Askance’s first comment in his post numbe four on this thread.