Passing Unpassable Constitutional Amendments

But there’s no reason to remove the clause, other than as a precursor to screwing with the Senate. Certainly, the Supreme Court could consider that. Even Ray Charles would be able to see the handwriting on the wall in this case.

For that matter, they could also write up a new constitution identical in every respect for the current one except for the bit about unpassable ammendments. Sure, it’d be a bit clunky, but it’d get the job done.

Or they could even write up a new constitution without following the procedure laid out for a Constitutional Convention. After all, the current Constitution was not written according to any procedure laid out in the Articles of Confederation, and the Articles of Confederation in turn were not consistent with the British law we were subject to previously.

Assuming they would touch it. They might decide the issue was a “political question.” This allows them to avoid certain squabbles that the Court feels are best handled in the arena of politics, not the arena of law.

That’s the crux of the matter. Like all things, the constitution only has authority in so much as we, the people, vest authority in it. If we rise up and overthrow the government in order to institute a Socialist Utopia (The People’s Republic of America), then the constitution becomes just another piece of paper, interesting only for its historical significance.

We are a very cohesive nation, though, and if we were to rock the boat by amending the constitution to ding the smaller states, that cohesiveness would most likely take big hit.

Sure there is. See here :smiley:

Zev Steinhardt

Once again, if the SCOTUS decides it wants to rule on something, it can. If we decide we don’t want to listen to them, we can do that, too. Remember, the whole idea that they are the final arbiter of whether or not a law is constitutional was a bold, controversial move back in the day. Marbury v Madison.


I contend that there is no difference. If equality is guaranteed to people, then that right must be equal for all people; if equality is guaranteed to states, then that right must be equal for all states.

Removal of the “non-amend” clause in article 5 would by nature give the states non-equal power to affect the equality of one another’s sufferage in the Senate. That situation itself is a form of non-equality of sufferage. The big states can threaten the little states into voting their way or potentially lose their Senate sufferage.

And was ignored by President Andrew Jackson, among other times. :eek:

Oh nonsense. Removal of the non-amend clause would not affect equal sufferage at all. You could remove the clause and never touch the other. Further, every state would be equally affected by the situation, since any combination of states could move to limit the equal sufferage of any given state at any time. After all, the big states can’t threaten ANYTHING because the little states would still be able to block the move in the Senate. duh.

But if that’s the case, then the Senate itself violates the guarantee of equality for all people. The people of the state of Wyoming have 2 senators, the people of the state of California have 2 senators. That violates the concept of equal rights. However, this was the price for ratification of the Constitution, and it’s worked for over 200 years, and we’re not going to do away with it any time soon.

Marbury v. Madison wasn’t ignored by President Jackson (at least not in the Cherokee cases). It was ignored by the State of Georgia.

For a history of this issue, I think one should look to the numerous applications that the states have made for a constitutional convention (meeting the 2/3 threshold) that have been repeatedly denied on technical grounds by Congress despite being bound by Article V. If SCOTUS refuses to step in and force Congress to do its constitutionally-bound duty in this case, why would it step in given the OP’s scenerio.

The Onion:
“BISMARCK, ND—The stage was set for another international showdown Monday, when chief U.N. weapons inspector Hans Blix confirmed that the remote, isolationist state of North Dakota is in possession of a large stockpile of nuclear missiles.”


You could certainly do so in theory. In theory, you could also have racial equality while maintaining separation in law. But that didn’t hold water either.

But any reasonable implementation of non-equal sufferage would benefit the larger states, and would harm the smaller states. I think it’s safe to say no one will convince 75% of states that inverse size representation is a good idea.

An amendment can pass without any Senate involvement, if the populations or state legistatures of the largest 38 states decide it’s in their interest to screw over the smaller 12. duh.

Zev Steinhardt mentioned the 21st amendment, whos purpose was to repeal the 18th amendment. But what about a new amendment that conflicts with another. For example, one could argue that the 26th Amendment (which set the national voting age at 18) conflicts with the equal protection clause of the 14th amendment. What’s the remedy for that sort of thing?

Don’t amendments have to originate in Congress and pass both houses with a super-majority before going to the states?

Zev Steinhardt

Well, technically, the 21st was in conflict with the 18th. The 18th said it was effective (it was ratified by the requisite number of states) and the 21st said that it wasn’t. My guess would be that the later one wins.

Zev Steinhardt

Actually, now that I think about your “conflict,” I realize that the amendments aren’t in conflict at all.

The 26th simply says that if you are 18, you can vote. It does not say that if you are under 18, you can’t. Any state could, in theory, give infants the vote. Perhaps state laws limiting voting age to 18 are in conflict with the 14th (although I doubt it), but the 26th surely isn’t.

Zev Steinhardt


In theory, a Constitutional Convention route could do an end-run around Congress.

True, but once you have a CC, you can do anything. You could chuck the entire Constitution in favor of a new one already… so the question I posed in the OP really becomes moot then.

Zev Steinhardt