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Article V:

Article V of the U.S. Constitution provides:

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 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; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

I have a question about the provisions at the end, such as "Provided that no Amendment... that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Could an Amendment be adopted by the standard amendment process (2/3 of both Houses pluses 3/4 of states) that amended this final clause providing that no state shall be deprived of its equal Suffrage without its consent? So, for instance, could Article V be amended to allow deprivation of a state's equal suffrage such as by majority vote?

It is not obvious to me either way. My initial intuition was that the 2/3 clause was the general rule that could be invoked to modify the "equal suffrage" clause as a subordinate rule. But then as I thought further, it seemed to me that they are simply two co-equal provisions and that neither takes precedence over the other. If the latter, then presumably the only way to get rid of equal suffrage withouth the deprived state's consent would by revolution (presumably followed by a new constitutional convention). Although it is not obvious to me why the general provisions of Article V would not apply to this particular provision.

Jason F:
It's a canon of statutory construction that "[h]owever inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment." Fourco Glass Co. v. Tranmirra Products Corp., 353 U.S. 222, 228 (1957). Is there any reason that wouldn't apply to constitutional interpretation as well?
2.12.2008 3:20pm
JohnO (mail):
I read that clause as an essentially unamendable provision of trhe Constitution (absent all affected states' consent). If it were otherwise, it would be meaningless, as the result would be something along the lines of "no amendment can take away states' equal suffrage in the Senate, unless it does."

I see it as the same for the immediately preceding clause, that the Constitution just could not be amended before 1808 as it related to slavery.
2.12.2008 3:21pm
Simon Dodd (mail) (www):
As a matter of intuition, I'd always thought it would be possible to have an amendment that excised those prohibitions, and that having been adopted, a subsequent and independent amendment could be adopted removing equal Senate suffrage for example.
2.12.2008 3:28pm
rlb:
I think history has shown that as long as the party in power wants it, and the judiciary supports it, *anything* is "constitutional."

Hell, if they called it the "New Deal II," they wouldn't even need an amendment.
2.12.2008 3:30pm
Paul Allen:
Ironically, I think the answer stems from the wording 'amendment'. If you could emend the constitution, then you could strike that line and then emend the constitution to deprive of their vote in the Senate.

However as it stands, the constitution is amended. Which means that all of the provisions exist concurrently. Thus working incrementally has no effect.

Ergo, since you cannot do it in one step (Article V clearly claims supremacy and first-preference) you cannot do it at all.
2.12.2008 3:33pm
Tracy Johnson (www):
Perhaps they believed suffrage could be pre-empted by force of arms? The Constitution was new, it may be the framers believed factional infighting among the states could occur (like its Roman Senate namesake) and come to blows, thus preventing a quorum? If one presumes the 13 original colonies weren't as civilized as schoolchildren are taught.
2.12.2008 3:38pm
Thales (mail) (www):
I agree this and the nonimportation clause should be read as nonamendable (and nonemendable). However, one can get around this by calling a constitutional convention outside the bounds of Article V (that is, for the purpose of replacing rather than amending the constitution), which would have just as much, if not more, legitimacy than the original constitutional convention (which legitimacy is only more or less confirmed by the continual lack of violent revolution).
2.12.2008 3:43pm
Tom R (mail):
> "If it were otherwise, it would be meaningless..."

Logically, yes. However, it should be noted that in other common-law jurisdictions outside the US, courts have taken exactly that view. If a provision is only "singly entrenched" (eg, "Section 1: The Upper House cannot be abolished without a referendum") then, yes, the legislature can first repeal Section 1 and then abolish the Upper House by ordinary legislative Act.

If, however, a provision is "doubly entrenched" (eg, "Section 1: The Upper House cannot be abolished without a referendum. Section 2: Neither Section 1, nor this Section, may be amended or repealed without a referendum"), then it changes from being a speed bump to a road block, so to speak.

Many States of Australia have provisions along these lines in their Constitution Acts. Not all the Act is entrenched at all, but certain super-important provisions (bicameralism in New South Wales, unicameralism in Queensland) get the treatment.

At the federal level, the Australian Constitution contains a provision modelled on the USA's: ordinary constitutional amendments need a referendum majority nationwide and in a majority of States (as in Switzerland), but a State's representation in either House can't be reduced unless the amendment carries that State. This has never been tested. A proposal to relax the "nexus ratio" (requirement that the House of Reps be twice the size of the Senate) was defeated at a 1967 referendum; if passed, it could conceivably have been challenged on the ground that it reduced, say, Tasmania's representation without a majority vote in that State (if Tasmania's minimum guarantee of 5 Reps seats is 5 out of, say, 250 instead of 5 out of 150).

I realise that, as foreign precedents, these would have at most only persuasive value with US courts (and that, as precedents from the 20th century instead of the 16th or 17th, their persuasive value would be extremely low). Nonetheless I offer it for jurisprudential consideration.
2.12.2008 3:47pm
Chris 24601 (mail):
I think the passive-voice construction bars removal of the provision. A two-step process is one way in which a State might "be deprived of its equal Suffrage in the Senate." The restriction doesn't apply just to single amendments, as if it said "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate through a single amendment." Depriving a State of its equal suffrage by (1) changing this provision, then (2) changing the rules for electing Senators is still depriving a State of its equal suffrage in the Senate.
2.12.2008 3:48pm
Tom R (mail):
... I should add that the Australian (and New Zealand, Sri Lankan, Indian, South African, and Caribbean) precedents that distinguish "single" from "double entrenchment" were given by judges whose reigning philosophy was steeped far more in the Westminster tradition of Parliamentary sovereignty (entrenched clauses being viewed as an inescapable irritant, to be construed as minutely as their words allowed) than in either limited government or popular sovereignty. Both of the latter have far more sway with American judges (c/f cases on legal continuity, referenda, unenumerated rights, etc) - probably not surprising when their Grundnorm is the "irregular" revolution of 1776, against Parliament (as opposed to the "regular" revolution of 1688, led by Parliament).
2.12.2008 3:59pm
Brett Bellmore:
Presumably you could still amend the constitution to abolish the Senate altogether. Might as well, there's no point in having two houses with the same electoral basis, and direct election of Senators destroyed most of the purpose of having a Senate in the first place.
2.12.2008 3:59pm
Maniakes (mail):
If we were actually looking to redistrict the Senate and not just discussing this an an academic exercise, the key provision would be "without its Consent". If every state ratified an amendment redistricting the Senate, then it would be constitutional, and Congress could refuse to admit any future states that didn't accept the redistricting (that could even be specified in the amendment).

If 3/4 but not all the states ratified, the amendment could still apply to the ratifying states if the rejecting states were each guarenteed 1/50 of the seats in the redistricted Senate.

Or the amendment could specify inducements to consent, the most radical being that any state that didn't consent within X years of adoption would be expelled from the Union. Or rejecting states could get their full quota of Senators at the price of losing their House seats and their Electoral College votes.

It's also notable that Article V says "equal Sufferage in the Senate", not "exactly two Senators". Zero equals zero, so it may be constitutional to simply abolish the Senate via amendment.
2.12.2008 4:03pm
Steve:
It seems self-evident that any limitation on the amendment process cannot be amended, or it would meaningless. As it happens, we only have the one.

And I disagree that the Senate could be abolished entirely, as it would violate this particular limitation.
2.12.2008 4:04pm
REPEAL 16-17 (mail):
Zero for all is not always the same as equality. The Fourteenth Amendment requires each State to provide "equal protection of the law." Nobody would suggest that a State providing no protection under its laws would be in compliance of that clause.
2.12.2008 4:11pm
DJR:
Seems to me there are two ways of looking at this: First, if "Provided that" means "except," then no amendment can deny states equal sufferage in the senate: Amendments . . . shall be valid . . . Provided that . . . no state is deprived equal sufferage. If any amendment tries to do that, it won't be valid.

Alternatively, if "Provided that" means "so long as" or "on the condition that" then there could be an Amendment limiting equal sufferage, but that would be the last amendment to the Constitution. If Amendments are only valid "provided that" the states not lose equal sufferage, then if they do lose equal sufferage, no more Amendments can be valid.
2.12.2008 4:15pm
Maniakes (mail):
Nobody would suggest that a State providing no protection under its laws would be in compliance of that clause.

I'd argue that the "no protection" option is forbidden only for other reasons (such as the Privileges and Immunities clause and the Due Process clause). I can't think of examples off the top of my head, but I'm pretty sure there's a significant amount of case law that's upheld laws against Equal Protection challenges on the grounds that the laws screw everyone equally.
2.12.2008 4:19pm
Burt Likko (mail) (www):
Nice one, Todd. You've managed to cause a serious rift between originalists and textualists. The original intent of the clause is obviously that no amendment can change equal representation in the Senate, but the text indicates that that an amendment changing the amendability of the Constitution, at least on its own, would be valid. I'll use this example with my own students.
2.12.2008 4:25pm
REPEAL 16-17 (mail):
The Senate Clause of Article V was meant to prevent the amendment process from being used to screw over a group of States. The Senate provides equal representation for each State. If three-fourths of the States wanted to give the remaining States only one Senator each, saying that the Senate Clause could be repealed without those States' consent would make the Senate Clause a nullity. With the intention of the Senate Clause in mind, I believe that an amendment that would repeal the Senate Clause would need to be ratified by all of the Senate in order for it to be adopted.
2.12.2008 4:28pm
arbitraryaardvark (mail) (www):
Because of the second semicolon, it seems that the equal Suffrage clause is not modified by 1808. But I hesitate to apply my current understanding of punctuation to the constitution. I will take silence on this point to indicate consensus that the equal Suffrage clause is not modified by its penultimatum.
2.12.2008 4:53pm
Bender (mail):
It's rumored that Kurt Goedel nearly didn't become a US citizen because he was convinced that the constitution was self-contradictory and therefore it would be impossible for him to swear a valid oath of allegiance. The rumor has it that Einstein talked him into taking the oath. Maybe Kurt was onto something.
2.12.2008 5:21pm
Student:
Is this a serious question? If so I'm disappointed you have to ask it. If you're trying to indirectly make another point I'm afraid I'm missing it. Perhaps I need to spend more time in the rarefied air of academia.

My answer, supposing this is really a serious question, is that everything following "Provided" is an exception to the general power of the Congress to propose and the states to ratify amendments to the constitution. If you look at the structure of the congress (representatives allocated proportionally based on population; senators two per state) this makes perfect sense. The last clause is intended to guarantee the preservation of the compromise between the large states and the small.

I think all these "well what if they amended the limitation, then amended the senate provisions" are great examples of why our profession is held in such profound contempt by average Americans. Parse it as finely as you will, the clause is clearly intended to place each state's right to equal representation in the senate beyond the power of amendment.
2.12.2008 5:22pm
Russell (mail):
If we are engaged in a theoretical exercise, and ignoring the fact that the Senate is a necessary political fact today for many of the same reasons it was a necessary compromise when the Constitution was drafted, it is trivial to avoid the equal suffrage rule without resorting to the "everyone gets zero" rule --- simply amend the Presentment Clause, the Appointments Clause, the Treaty Clause, etc. to transfer the Senate's powers to the House (or to a new, proportionally-divided third chamber, if one wants to retain legislative bicameralism). Such an amendment should be legally permissible through the "ordinary" 2/3 + 2/3 + 3/4 process, no?

(Obviously, that would substantially subvert the intent of the Equal Suffrage Clause, as well as that of the other clauses that vest special powers in the Senate. But arguably, the 17th Amendment made a similar intrusion on the original intent of the Senate as a body controlled by the states, rather than their populaces.)
2.12.2008 5:29pm
PersonFromPorlock:
Wouldn't you also have to amend the Fourteenth Amendment before you could give some Americans two Senate votes and others just one?
2.12.2008 5:39pm
Jim twostep:
Is this really the first time you've had this discussion, Todd? Isn't this standard 1L ConLaw dormroom BS? I'm just teasing you.

We know that representational security was paramount at the Constitutional convention, and that numerous states would not have ratified without assurances about the solid nature of Senate equality and the slave trade ban prohibition. Had those assurances been found incorrect, numerous states would have surely seceded. There can be no doubt about the original intent.

There are many ways around the Article V exemption. As mentioned above, the power of the Senate could be altered. Others have suggested that the Senate could be modified such that each state retained its equal two Senators and then additional Senators were chosen upon population basis that wasn't drawn exactly along state lines. FInally, and most radically, is that Congress, by standard majority vote, can create new states (Article 4, section 3), including dividing states (with their consent), meaning that Senate equality could technically be kept while large states could be divided up to "add" Senators.
2.12.2008 5:44pm
Tom R (mail):
> 'Congress, by standard majority vote, can create new states (Article 4, section 3), including dividing states (with their consent), meaning that Senate equality could technically be kept while large states could be divided up to "add" Senators'

See Michael Lind's "75 Stars: How to restore democracy in the US Senate (and end the tyranny of Wyoming)," Mother Jones (January/February 1998), pp 45-49.
2.12.2008 5:57pm
Dave N (mail):
Tom R,

New states have to be ratified by Congress as well--so I suspect Wyoming and similarly small states (Delaware, Alaska, South Dakota, Vermont) could use their power to prevent new states from being created out of current states. I would note from an historical standpoint, such a "split" has only happened once--West Virginia out of Virginia--and Virginia really wasn't in a position to complain at the time.

The exception MIGHT be Texas, whose treaty with the United States allowing its annexation provided that Texas could be split into as many as five separate states--but as the saying goes, "Don't mess with Texas."
2.12.2008 6:08pm
Thales (mail) (www):
"Presumably you could still amend the constitution to abolish the Senate altogether. Might as well, there's no point in having two houses with the same electoral basis, and direct election of Senators destroyed most of the purpose of having a Senate in the first place."

Not so--first, Senators have a *state*wide electoral (following the 17th amendment, prior to it, appointment) basis and serve a longer term, whereas members of the House are elected by popular vote on the basis of more local districts. Second, some Framers at the convention, notably Madison, wanted bicameralism but wanted both houses to be popularly elected, thinking that if the Senators were appointed by state legislatures they would be beholden to the evils of the "designing men" in the statehouses, who did such awful things as pass stay laws and legal tender laws (query whether Madison or the Antifederalists were right on this point); but these Framers nonetheless thought the deliberative quality in the two chambers would be different and gave them slightly different powers accordingly (House must originate taxation bills, Senate ratifies treaties and executive appointments, etc,), and also thought the two house plus signature or veto requirement would make it more difficult for bad legislation to pass. And indeed, even after the 17th Amendment, the House and Senate behave quite differently.
2.12.2008 6:19pm
Mark Littlehale (mail):
Dave N,

Actually it has happened twice. Maine was a part of Massachusetts before the adoption of the Missouri compromise. Massachusetts let it go.
2.12.2008 6:21pm
Anderson (mail):
Sadly, Jacques Derrida is no longer with us to write a 150-page monograph addressing, explicating, deconstructing, and ultimately failing to resolve this issue.
2.12.2008 6:27pm
byomtov (mail):
I agree with those who say it makes no sense that this provision could be amended away.

The idea of multi-state Senators is cute, though. Suppose you created 50 big-state/small state pairs, matching #1 with #26, etc., and gave each pair a Senator elected by combined popular vote. Would that count as depriving the smaller state of equal suffrage? I don't see why, unless you argue that gee, maybe the notion of states, as opposed to people, having representation is a bit shaky.
2.12.2008 6:28pm
Dave N (mail):
Mark Littlehalte,

You are right--Maine was an exclave of Massachusetts--east to forget because it did not border the rest of the Commonwealth.
2.12.2008 6:28pm
Gilbert (mail):
I just can't imagine the Court saying, 'well, having gone through the arduous amendment process, we have the unfortunate duty to tell you that it was all for nothing.'

Agreed, this makes that one line almost meaningless (you would still have to amend that line, it couldn't be an implication of some other amendment), but such is the nature of limits on the power of supermajorities.
2.12.2008 6:41pm
Tom R (mail):
> "New states have to be ratified by Congress as well"

True, and this includes the Senate. But the "Senate" is not some unchanging body with perpetual succession, like the Roman Catholic College of Cardinals. There are Democrat Senates and GOP Senates. There are Senators who are currently in the majority but who can read opinion polls and realise that after the following November they will be in the minority.

If I were Pelosi and Reid, I would be thinking seriously about promoting legislation to...

(1) expand the House of Representatives to around 600 seats (which is still smaller than the British House of Commons and the German Bundestag, even though both of those nations have about 20-25% of the USA's population size, and both have sub-national parliaments representing the same population), and

(2) change the apportionment formula from current Huntington/ Equal Proportions to straight d'Hondt (briefly: stop rounding up all remainders greater than about 40-45% of the whole quotient; round down all remainders). This would still comply with the Constitutional requirement of population proportionality, and each State would keept its minimum one seat, but wouldn't qualify for a second seat unless it had 2.00 full quotients (as opposed to the current formula where the second seat kicks in at about 1.414 times the quotient.

This would largely nullify the advantage to smaller States of having two extra Electoral College votes regardless of population. But unlike other proposals, it wouldn't require a Constitutional amendment.

Now, to make my original point: can you see a situation in which a Democrat Senator (especially if s/he facing defeat anyway) might vote for such a change? And the same applies in reverse to Republicans.
2.12.2008 6:47pm
gifted:
I had the thought after reading that, of whether the 16th(?) amendment was constitutional. By making it a popular election, you change the ratio of representatives to representees. While you haven't changed the number of Senators, you no longer have equal representation. Before, you had each state gov represented by two Senators. Now, you have different sized populations represented by two Senators. With a fixed number of Senators per state, it's impossible to have equal suffrage. You can argue the same about state legislature size, but it's a lot better than now.

You might also argue that this applies specifically to states, and so removing the point from the state governments is unconstitutional in the first place.

It's something I've been curious about, but had neither the time or resources to investigate.
2.12.2008 7:05pm
Elliot Reed (mail):
It depends on how many members of SCOTUS belong to the party happens benefits from the underrepresentation of large states at the time the amendment is enacted.
2.12.2008 7:27pm
Elliot Reed (mail):
*that benefits
2.12.2008 7:27pm
FWB (mail):
Actually the senators were originally selected by the state legislatures to represent the needs of the state in the federal government while the HoR took care of the needs of the People. The States lost their suffrage with the 17th amendment. Senators are no longer obligated to watch over the "rights" of the states as was expected prior to the 17th amendment since Senators no longer need the state legislature to obtain office but answer instead to the people. Just part of the systematic destruction of state's 'rights'.
2.12.2008 7:30pm
Paul Allen:
Burt writes:

Nice one, Todd. You've managed to cause a serious rift between originalists and textualists. The original intent of the clause is obviously that no amendment can change equal representation in the Senate, but the text indicates that that an amendment changing the amendability of the Constitution, at least on its own, would be valid. I'll use this example with my own students.


Go read my first comment. There is no tension between textual analysis and intent here.
2.12.2008 7:32pm
Elliot Reed (mail):
Also, I agree with Russell that the clause can be avoided with reaching this question by turning the Senate into a powerless (or nearly powerless) chamber.
2.12.2008 7:37pm
Elliot Reed (mail):
Paul: no. Nothing (except the implied unamendability of the end of Article V) prevents the Congress from passing, and 3/4 of the states from ratifying, an amendment that reads:
Article 5 of the Constitution of the United States is hereby amended by:

(1) Inserting the word "and" before the word 'Provided'; and

(2) striking the semicolon after the phrase "first Article" and replacing said semicolon with a period; and

(3) striking the string "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."


The fact that previous amendments have been tacked onto the end doesn't bar future amendments from altering the text directly.
2.12.2008 7:45pm
Mark P. (mail):
The question asked here was one that was taken seriously prior to the Civil War. For those, like Lincoln, who argued that it was UNLAWFUL for a State to secede from the Union, Article V provided support. Only two events: 1) reduction of Senate representation, or 2) an anti-slave-trade statute prior to 1808, could justify secession. The implied result of either of these two acts by the Nation would be that a State, or a group of States, could LAWFULLY secede from the Union. Because Lincoln's election did not constitute one of those two constitutional "deal breakers," the South's secession from the Union was unlawful, from this perspective.

So, what should Wyoming do if it is deprived of equal representation in the Senate? Secede. They could do it lawfully, although I bet commerce issues would be a bitch.

Of course, the negative pregnant of the last part of Article V is that everything else is subject to revision in the constitution by amendment, without breakup of the nation as an available "legal" remedy. I hope we never have to find out if "extra legal" remedies would ever be in order as a response to an approved amendment.
2.12.2008 7:45pm
Waldensian (mail):
What does any of this have to do with the governance of Dartmouth?
2.12.2008 9:20pm
David Chesler (mail) (www):
I think the passive-voice construction bars removal of the provision. A two-step process is one way in which a State might "be deprived of its equal Suffrage in the Senate." The restriction doesn't apply just to single amendments, as if it said "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate through a single amendment." Depriving a State of its equal suffrage by (1) changing this provision, then (2) changing the rules for electing Senators is still depriving a State of its equal suffrage in the Senate.

This is true, but irrelevant, because whie you're doing (2), (1) is not longer in effect. This isn't even a time travel/causality problem.

Ironically, I think the answer stems from the wording 'amendment'. If you could emend the constitution, then you could strike that line and then emend the constitution to deprive of their vote in the Senate.

However as it stands, the constitution is amended. Which means that all of the provisions exist concurrently. Thus working incrementally has no effect.

Ergo, since you cannot do it in one step (Article V clearly claims supremacy and first-preference) you cannot do it at all.


How do you get that? Are Senators concurrently chosen by the legislatures and the people? The 21st Amendment pretty clearly repeals the 18th Amendment.
2.12.2008 11:49pm
Laura S.:

The fact that previous amendments have been tacked onto the end doesn't bar future amendments from altering the text directly.


Elliot you need to study a dictionary before posting. By definition an amendment is an addition, not a textual change.

How do you get that? Are Senators concurrently chosen by the legislatures and the people? The 21st Amendment pretty clearly repeals the 18th Amendment.
2.13.2008 12:16am
Asher Steinberg (mail):
In regards to whether abolishing the Senate would violate this provision, I think that it would; you can't say that they would all have 0 Senators in the Senate, and thereby have equal suffrage in the Senate. They'd have no Senate and I don't see how you can have equal suffrage in the Senate without a Senate. But in response to Repeal 16-17, in the equal protection context a state may choose to fulfill its equal protection obligations in some regard by simply abolishing a program altogether; see Palmer v. Thompson, where a town in Mississippi chose to close its public swimming pools rather than desegregate them. The town won that case.
2.13.2008 1:03am
Jack Aranda of Brisbane (mail):
Arguable both ways innit? Hunch answer - if the proviso were removed and the equality of State representation destroyed a very short time after, the court would see the two-step process as a sham, but if the proviso were removed and the Article as amended* were allowed to sit there for a generation, letting people get used to the new form, a later amendment destroying equality would be accepted. Sometimes intuition has to trump logic...

*And contrary to the early posting, an amendment is by definition a textual correction or change, not an addition - that's an addendum. So, though most 'amendments' to your Constitution have been articles in addition, a straight removal of the proviso would indeed be an amendment.
2.13.2008 1:23am
Evelyn Marie Blaine (mail):
For the sake of argument, let's say that the best textualist reading of the entrenching provisions makes them unemendable. That, of course, still doesn't answer the normative question of whether one should take them to be legitimate, binding law.

Presumably the Constitution has to derive at least a large part of its legitimacy from the implicit consent of the present generation, and that implicit consent presumes a capacity to change its provisions -- not necessarily easily or simply, but at least in some way. Why should one take seriously the claims to normativity of a law that purports to deny that?

Of course the counterargument is that of Thales -- that one either has to take the text as a whole or not at all, and so the only choice is to call a new Constitutional Convention and write a new Constitution:
I agree this and the nonimportation clause should be read as nonamendable (and nonemendable). However, one can get around this by calling a constitutional convention outside the bounds of Article V (that is, for the purpose of replacing rather than amending the constitution), which would have just as much, if not more, legitimacy than the original constitutional convention (which legitimacy is only more or less confirmed by the continual lack of violent revolution).
I have some sympathy, I have to admit, with this all-or-nothing principle. But, of course, the new Convention could just strike out the offending entrenchment sections, add language abolishing the Senate, and then re-enact the remainder word for word.

I suggest that, if indeed the clauses are textually unrepealable, the best way to read an amendment purporting to repeal them would be as something like that: a decision, by the overwhelming majority of the American people, to stipulate that the binding fundamental law of the United States will be something different from what it was, although incorporating large parts of the antecedent text. (Everyone familiar with Bruce Ackerman's work will recognize the similarity between this claim and his ideas.)

Or, to put it more crudely: if the Constitution truly says that we can never, ever under any circumstances get rid of the Senate, then so much the worse for the Constitution, because it's just obvious that we can get rid of the Senate, if an overwhelming majority of us, after a long process of deliberation, really do want to.
2.13.2008 3:35am
jft:
Akhil Amar raised this exact question fourteen years ago:

<blockquote>
Article V is far less precise than we might expect. What voting rule must an Article V proposing convention follow? What apportionment ratio? Can an amendment modify the rules of amendment themselves? <b>If so, couldn't the "equal suffrage" rules of Article V be easily evaded by two successive "ordinary" amendments, the first of which repealed the equal suffrage rules themselves, and the second of which reapportioned the Senate? Could a legitimate amendment generally purport to make itself (or any other random provision of the Constitution) immune from further amendment?</b> If so, wouldn't that clearly violate the legal right of future generations to alter their Government? Wouldn't the same be true of an amendment that effectively entrenched itself from further revision by, say, outlawing criticism of existing law? But if that would be unconstitutional, haven't we in effect made the narrow and hard core of our First Amendment itself unamendable?<br><br>lf determinate answers to these and other questions exist, they lie outside Article V, narrowly construed—in other provisions of the Constitution, in the overall structure and popular sovereignty spirit of the document, in the history of its creation and amendment, and in the history of the creation and amendment of analogous legal documents, such as state constitutions...</blockquote>

Akhil Amar, <i>The Consent of the Governed: Constitutional Amendment Outside Article V</i>, 94 Colum. L. Rev. 457, 461 (1994) (emphasis added).

He shoots, he scores?
2.13.2008 10:16am
jft:
Well, I'm clearly having some trouble with HTML markup.

Ball hits the rim, bounces into the stands, and knocks a spectator unconscious.
2.13.2008 10:17am
Joshua:
OK, I'm a little late to the party here, but couldn't the Senate Clause be defeated by an amendment that (1) repeals Article V in its entirety, then (2) restores all the provisions of Article V except for the Senate Clause?

Not that that (nor, I daresay, any more constitutional amendments of any kind) is ever going to happen, of course.
2.13.2008 7:28pm
Tom R (mail):
My point remains, that although quite a few posters here think it's obvious, logical, patent, etc, that a clause saying "you can only amend Rule X through extra-hurdles procedure Y" necessarily implies that the clause itself can't be amended except through Procedure Y, the fact remains that plenty of common law judges - admittedly, not American federal or State judges - have held that it isn't necessarily implied, that it fails the "but of course!" ex ante test, that if the Framers want to entrench the entrenching clause itself, they have to go for "double" not "single" entrenchment.

Otherwise, there is a risk the courts might construe the "singly entrenched" clause as a mere reminder to the legislative (or constituent) majority, a kind of "Are you sure you want to delete this?" popup (much like New Zealand's provision requiring a referendum or legislative supermajority to amend the Electoral Act).

I doubt not but that plenty of Framers thought that their writing in "you cannot amend Rule X except through special procedure Y" would be read to mean "you cannot amend Rule X, or this present clause itself, except through special procedure Y". But in the words of that noted jurist Cletus the Slack Jawed Yokel, "Should'ha [said it explicitly], but did not."
2.16.2008 12:12am