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According to Article 5 of the U.S. Constitution (emphasis added):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided [...] that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

This, to my understanding, means that any attempt to either overhaul the Senate to be proportional like the House is, or to abolish the Senate altogether, would need unanimous consent from all 50 states, not just 3/4 of the states.

But is there a way to bypass this restriction? For example, would it be legal to propose an amendment repealing the bolded clause, have it ratified by 3/4 of the states and become part of the Constitution, and then separately propose a new amendment overhauling or abolishing the Senate that could be ratified and take full effect with only 3/4 of states ratifying? Or could it even be possible to do both in the same amendment?

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    Same procedure as any other constitutional amendment. Safe to say, it will never happen as long as there is a majority bloc of states that have a minority of the population, which is the expected situation in general. By design from the very beginning.
    – Pete W
    Jan 21 at 2:18
  • By my understanding, the Seventeenth Amendment was unanimously ratified by all states that were present in the Union at that time, but if any state had refused ratification I think it would have been reasonable to argue that it effectively replaced a body in which states as independent political entities had equal power, with one in which they had none. Because the Constitution expressly provides "...without its consent...", and unanimous ratification implies that all states consented to the changing balance of political power, this provision is rendered moot.
    – supercat
    Jan 22 at 20:41
  • @supercat. That’s not true. Utah and Delaware rejected the amendment outright (Delaware later passed it in 2010), while many LA didn’t ratify it until after its certification, while Alabama, Maryland, and Rhode Island didn’t ratify until after 2000. Florida, Georgia, Virginia, South Carolina, Mississippi and Kentucky have never ratified it (all states in 1913) along with Alaska and Hawaii which weren’t.
    – divibisan
    Jan 24 at 3:42
  • @divibisan: If there are states that haven't ratified it, and those states somehow mustered the political will to select their Senators via other means, I would think there would be a sound Article V argument, though that might be countered by an argument that persistent failure to raise an Article V challenge could be construed as consent.
    – supercat
    Jan 24 at 15:36

7 Answers 7

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For example, would it be legal to propose an amendment repealing the bolded clause, have it ratified by 3/4 of the states and become part of the Constitution, and then separately propose a new amendment overhauling or abolishing the Senate that could be ratified and take full effect with only 3/4 of states ratifying? Or could it even be possible to do both in the same amendment?

The short answer is the no one knows because this has never been successfully attempted, so that the issue can be resolved in an authoritative manner. I personally, in my legal judgment, don't think that these approaches would be upheld (assuming, of course, that they could be passed).

It isn't even clear, however, if the courts would consider the issue of such an amendment's validity justiciable, in which case any objection to its validity might fall on deaf ears.

One could have unanimous consent from all states, or at least, from all small states impaired by the plan, which naively seems politically impossible. But so does every effort to expand the franchise (e.g. the passage of the 19th Amendment giving women the right to vote, which was adopted in 1920). Measures like these pass, however, when partisan majorities get control and care more about their partisan cause than their long term procedural interests (e.g. the interest of men in having a political monopoly) in a vacuum.

One way to get small states to agree to reform would be for a partisan majority wanting to end the status quo to create, or the credibly threaten to create, a large number of tiny states, gerrymandered to favor the ruling party's agenda, effectively stacking the Senate.

For example, suppose that Democrats controlled the House and Senate and Presidency as they do now, but had abolished the filibuster and had a safe majority for its legislation in both houses of Congress. The Democrats could credibly threaten to make the District of Columbia into not one, but forty new U.S. states, all safely Democratic leaning, in order to pressure small states into agreeing to a constitutional amendment that abridged their equal say in the U.S. Senate.

Still, the likelihood that a measure ending equal representation of small states wouldn't be opposed by at least some small states thwarting their purpose, seems far more likely in the current political climate.

The most plausible kind of reform that might be enacted without seeming like quite such a blatant case of blackmail and a power grab, would be to give every state equal representation in the Senate, but to change the power of the Senate collectively.

For example, a constitutional amendment might transfer responsibility for voting on Presidential appointees and treaties from the Senate to the House, or allow either the House or the Senate to unilaterally override a Presidential veto with a two-thirds vote, or might allow a two-thirds majority of the House to enact legislation which the Senate declined to approve within a particular time frame.

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    Do you really think that you couldn’t have a constitutional amendment that modified article 5 to remove the unanimous consent part? It seems no different from other amendments that change the constitution. Very unlikely, sure, but I can’t see why it wouldn’t be legal
    – divibisan
    Jan 21 at 2:51
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    @divibisan Yes, I do. I very much doubt that a modification of this part of the constitution which would have the practical effect of circumventing something that was intended to be impossible to circumvent without unanimous consent, would be upheld as valid.
    – ohwilleke
    Jan 21 at 3:07
  • Men as a class do not have an interest in a political monopoly on voting, it in fact defeats the purpose of having votes, meaning that if you suppose voting is good then it harms them.
    – jmoreno
    Jan 22 at 14:09
  • Comments are not for extended discussion; this conversation about the constitutionality of changing article 5 of the US constitution has been moved to chat.
    – Philipp
    Jan 26 at 13:01
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Theoretically yes - this was the subject of a 2012 paper by Enrique Guerra-Pujol on the subject of Gödel's Loophole - a purported "inner contradiction" in the Constitution which Kurt Gödel claimed to have discovered in 1947, and would allow the United States to legally transition into a dictatorship.

In his paper, Guerra-Pujol describes the following logical steps, which he suggests leads to the conclusion that Article V can indeed be "amended in a downward direction" to remove the limitations it contains. These just state your argument in more formal language; because Article V is not self-referring, Guerra-Pujol suggests that it would be possible to remove the limitations within while avoiding its protections.

A. Step 1 (Major Premise): The Original 1789 Constitution Without Amendments Contains a Finite Number of “Constitutional Statements”

B. Step 2 (Minor Premise #1): The Constitution Not Only Contains a Finite Number of Constitutional Statements, but One of These Statements, Article V, Consists of an Amending Power

C. Step 3 (Minor Premise #2): Article V of the Constitution Is a Type II Amending-Power Statement

D. Step 4 (Conclusion): Gödel’s Loophole: The Amending-power Statement in Article V of the Constitution Is Self-Referring and May Thus Be Amended Downward

E. Step 5: Universality of Gödel’s Loophole: The Problem of Anti- Entrenchment Is Unsolvable

The paper concludes:

In summary, Gödel’s loophole is that the amendment procedures set forth in Article V apply to the constitutional statements in Article V themselves. In addition, not only may Article V itself be amended, but also it may be amended in an upward or downward direction. Lastly, the Gödelian problem of self-amendment or anti- entrenchment is unsolvable. This is a Gödelian or logical contradiction in the design of the Constitution for two reasons. First, the system of checks and balances (e.g., federalism, separation of powers, and judicial review) may be amended away (e.g., by proposing and ratifying a constitutional amendment abolishing the states, the Supreme Court, or Congress). Second, the amending power itself may also be amended in a downward direction through a constitutional amendment elevating ordinary legislation to the status of constitutional law or authorizing the President to rule by decree.

In conclusion, a logical flaw is not to be found in Articles I, II, III, or IV of the Constitution, but rather in Article V. Gödel’s loophole is the problem of self-amendment—a true logical contradiction in the design and drafting of the Constitution.

However, this is a purely logical argument, and politics is often anything but logical. It seems unlikely that were such a series of amendments proposed, the population of the United States would go along with it happily.

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    Basically, if the players of a game can change the rules, they can redefine poker to be bridge.
    – Barmar
    Jan 21 at 15:07
  • The life of the law is not reason, it is experience.
    – ohwilleke
    Jan 21 at 19:03
  • The question is not whether the "equal suffrage in the senate" provision of article V is subject to amendment; that is not in any doubt. The question is whether it is subject to amendment without unanimous consent of the states.
    – phoog
    Jan 24 at 8:38
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    Seems easy to me, as removing the equal suffrage part of Article 5 does not, itself, deprive the states of equal suffrage, and therefore is not prohibited by the clause. After the amendment, that text would be stricken, and no longer apply. Jan 24 at 18:15
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From a textualist point of view: This is simply amendable by the mechanism you propose. The textualist looks at the plain meaning of the text.

From an originalist point of view, this can't be amended. The writers of the constitution clearly intended that the equal representation in the senate clause should not be amended. They would see any attempt to remove the protection as merely part of an unconstitutional process and in itself unconstitutional.

From a living constitution point of view, an amendment might be simply unnecessary. Sure back in 1792 "equal suffrage" meant "2 Senators per state", but as the US has evolved, perhaps we should ask if this is really "Equal", perhaps our understanding of what "Equal" means has changed and if so ...

At heart, the constitution is a human document, and subject to human rules and human understanding. There's no natural law that says that the people of land between the Rio Grande and the 49th parallel is all subject to the same law, and no objective way of determining what that law is. The constitution contains within itself some guidance for deciding what the constitution is, but at a deep enough level, the constitution is entirely in our minds. And minds can change.

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    @jcgoble3: At the 1790 Census, Virginia had 12.65 times the population of Delaware. Hardly "in the same rough ballpark", even if it is less than the 68.54 California/Wyoming ratio of 2020.
    – dan04
    Jan 22 at 23:32
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    The whole point of having a constitution is that it can't change just by people "changing their minds." This is why there is a defined process for changing the Constitution, which isn't merely changing our minds on what we want it to mean. If we can simply decide which parts we like and which ones we don't, then the whole thing is meaningless.
    – reirab
    Jan 23 at 3:10
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    @reirab That in itself is an argument attempting to sway people's minds on how we should use a constitution. One which I find quite reasonable, but if everybody (especially people like politicians and supreme court justices) agrees that it's okay to simply start operating an aspect of constitutional law differently, then it will happen. The US Constitution is fairly inviolate and immutable (without following the amendment process), but it only is so because everyone believes it is so and treats it that way.
    – Ben
    Jan 23 at 5:48
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    @Ben Yes, if everyone agrees to something else, then that will be the way it's done. But getting everyone to agree to anything is not so easy to do. The point of having a Constitution is to set a baseline of rules that will not be violated unless there is very broad consensus and, even within that framework, those who agreed upon it in the first place saw fit to require an even broader level of consensus - effectively 100% of states - in order to change this particular aspect. If people can just decide to ignore aspects of it that they don't like at will, then the whole thing is pointless.
    – reirab
    Jan 23 at 8:02
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    @Ben This particular part of the Constitution was a balance of power compromise, without which the Constitution never would have been ratified in the first place. You can't agree to a compromise then unilaterally change it later to remove the part that benefits another party and still expect them to honor the part that benefits you. That's not how contracts (or compromises in general) work.
    – reirab
    Jan 23 at 8:06
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Yes, this would work, though it would be exceedingly unlikely. Constitutional amendments are fully part of the constitution and they supersede earlier parts. If you could pass a constitutional amendment repealing that part of Article V, then it would no longer apply and you could pass another amendment changing the allocation of Senate seats.

Article 5 lays out the requirements for amending the Constitution. The requirements are:

  1. 2/3 of both houses (or a constitutional convention)
  2. ratification of 3/4 of state legislatures (or state conventions)
  3. No state may be deprived of equal sufferage in the Senate
  4. No changes to slavery before 1808

So, based on this, an amendment making Senate representation proportional would be invalid unless all 50 States ratified it.

However, there is nothing here that prevents changes to the amendment process. If it was passed by 2/3 of both houses and ratified by 3/4 of all States, there is nothing preventing an amendment changing the process or requirements of ratification.

An amendment saying that new amendments must meet only the following requirements:

  1. 2/3 of both houses
  2. ratification of 3/4 of state legislatures

would not violate any laws and would be totally in accordance with the Constitutional procedures for amendment, as one changing the requirements further, for example:

  1. 55% in both houses
  2. ratification of 2/3 of legislatures
  3. 60+% vote by the public in 3/5 of states

If these amendments were passed, if the conflict with the process in Article 5, they would supersede it. Allowing different amendments (including this Senate change) or different methods of ratification. The fact that the Founders intended this to be unchangeable is irrelevant since they also intended for the Constitution to be changeable and included a process to do so.

Realistically this is very unlikely to happen, as you’d need the agreement of states which would lose significant power under the new arrangement, but it’s absolutely possible in theory.

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I see two possibly feasible options

  1. The "House of Lords" option: Leave Senate composition alone, but pass Constitutional amendments moving all of its important powers to the House of Representatives. The Senate could continue to be built and debate like it always has, but its now just a debating society. The US Senate was based on the House of Lords, and this is roughly how the UK solved the same anti-democratic problem with their House of Lords 100 years ago.

  2. Interstate Compact. At least 26 of the 50 States pass a law that their 52 Senators will always vote together the way the majority of the House of Representatives voted on any bill. The advantage to this approach is that 26 states is a far lower bar than a constitutional amendment (1/2 of the states +1 vs. 3/4ths of the states, plus some other hurdles). The drawback is that the constitutionality of the compact itself, its effect on the Senate, and the legality of "forcing" a Senator to vote a way they may not want to, would almost certainly end up being tested in the courts.

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    There isn't any legal mechanism for a state to force a Senator to vote any particular way in the first place and, even if there were, it would be unconstitutional (Article I, Section 6 bars states from interfering with the duties of members of Congress.)
    – reirab
    Jan 23 at 2:44
  • @reirab - It only literally says they can't be questioned in court about their "speech or debate". That doesn't seem to include votes, which are typically (but not always) a matter of public record anyway (and thus wouldn't require questioning in court). I suppose it wouldn't be a completely unreasonable extrapolation though. Have the Federal courts ruled that this prohibits simple regulation of votes too?
    – T.E.D.
    Jan 23 at 18:25
  • That section also privileges members of Congress against arrest during or on their way to or from sessions of Congress, so there wouldn't really be any practical way to prevent them from voting how they want. Even if they just tried to fine them or something, though, it would almost certainly be struck down on violating the spirit of the "speech or debate" clause and/or the 20th Amendment that specifies that Senators are chosen by the people, not by the state government, with the obvious intent that the Senators would represent the people, not the state government (let alone other states.)
    – reirab
    Jan 24 at 0:56
  • I'm not sure if there's been a court case on the subject, though. I'm not aware of an instance of a state trying to force the vote of a member of Congress that would create a need (or standing) for such a case.
    – reirab
    Jan 24 at 0:59
  • @reirab - Right. It intuitively seems like it might be dangerous, but for most purposes it would be tough to craft a law specifying the exact way to vote in enough circumstances to be useful (and not easily subverted by clever law-writing). Basically, working out how to apply "Anti-abortion" to any possible Senate bill is what we elect human Senators to do. So it wouldn't surprise me if its never come up. And since the Constitution doesn't literally seem to disallow it, it ought to be doable. But guaranteed someone wouldn't like it for political reasons, so a legal test would come.
    – T.E.D.
    Jan 24 at 3:03
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Hendrik Hertzberg, in an article in The New Republic in 1987 (a theme issue on the bicentennial of the Convention), proposed that the Senate consist of one member for each State plus an equal number elected at large by single transferable vote, arguing that the entrenchment clause allows it because those Senators who represent States would still be equal across States. I have my doubts.

But I can imagine such an amendment applying only to those States that ratify it. The non-ratifying States (presumably the 12 smallest) would still have two Senators each, but not participate in the STV part of the election; and the other 38 would still have 76, partly aggregated by their consent as the clause requires.

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  • Are you sure he wasn't arguing for that as some kind of interstate compact? If it was to be done as a Constitutional Ammendment, it seems like someone who can somehow magically clear that high bar ought to be looking to do something a bit more than only half fixing the problem.
    – T.E.D.
    Jan 24 at 3:30
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    His proposal also included adding to the HR 100 members elected at large by party slate PR, so yes I'm sure he had an Amendment in mind. Jan 24 at 5:06
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    IIRC, Congress gets to set its own size, so that much at least wouldn't take an ammendment. It just likes the current size because it allows everyone to fit in the chamber for debates (and keeps everyone there to vote more personally powerful). But the diluting representation of the US House is another issue that tends to get lost because we have worse problems, so its nice to see dude was looking at that too.
    – T.E.D.
    Jan 24 at 14:28
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Legally that can’t be done, or the clause itself would have been pointless.
Practically the Federal Constitution of 1787 has already been largely overthrown so its really a question of the consequence of doing that and what natural forces or interest might compel it to never be done.

To understand this, you must understand why the Senate exist in the first place. The reason for equal representation in the Senate is to protect the federal nature of the “Federal” Constitutional Republic by requiring a diversity of support regionally for every federal Judge, law, treaty, and significant executive office.

It may be harder for people to see and understand in today’s integrated world but Geography is THE defining long term characteristic of any state and/or political community. The land makes that community possible with space and distinct in way of life, environment, history, and subsequently culture and needs that result.

This is why land has perhaps the most powerful and binding vote of all, and nearly all the persistent nations of the world are largely defined by the land in which they exist.

It is furthermore worth noting when looking around the world over time very few such nations were ever so large and diverse as the U.S.A. a republic covering the inhabitable bulk of the worlds 3rd largest content, and containing within it significant amounts of territory in most every environment type.

Theses observations were not lost on the people who created our federal union, it is why they rejected any idea to abolish or even significantly weaken the autonomy of States. It is why the U.S.A. is really precisely that a union of 50 states, each intended to broadly reflect those lands, their diverse conditions and needs with domestic policy and laws designed to address them appropriately.

That attribute is why America is unusual among the few large countries ever to persist in that it is/was particularly successful while those conditions largely persisted.

We worked together in areas that were mutually beneficial and separately where they were not, as such we were able to get the best of both worlds creating a mutually beneficial relationship Economically and politically.

This of course has been breaking down over the subsequent 233+ years with every persistent non-mutually beneficial act that made it thou the senate regardless as Naturally no system is perfect.

One may say at this point in 2022 the U.S. constitution a document sold to us in 1787 as providing for a "Goverment of few and defined" powers of a foreign nature, has been largely effectively overthrown.

Hence the ever escalating current conflict which will either destroy the union or the republic, probably both either way given what we believe and how we are setup.

So yes you can do these things, but the consequences are inevitable and dire for the USA.

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