Amendments
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 . . .”
(ARTICLE V)
The process of amendment developed hand in hand with the emergence of written constitutions that established popular government. The charters established by William Penn in 1682 and 1683 provided for amending, as did eight of the state constitutions in effect in 1787. Three state constitutions provided for amendment through the legislature, and the other five gave the power to specially elected conventions.
The Articles of Confederation provided for amendments to be proposed by Congress and ratified by the unanimous vote of all thirteen state legislatures. This proved to be a major flaw in the Articles, as it created an insuperable obstacle to constitutional reform. The amendment process in the Constitution, as James Madison explained in The Federalist No. 43, was meant to establish a balance between the excesses of constant change and inflexibility: “It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
In his Commentaries on the Constitution of the United States (1833), Justice Joseph Story wrote that a government that provides
no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. . . . The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory.
In its final form, Article V creates two ways to propose amendments to the Constitution: through Congress or by a special convention called by the states for the purpose of proposing amendments (Article V, Convention for Proposing Amendments). In either case, the proposed amendment or amendments must then be ratified by the states, either (as determined by Congress) by state legislatures or by ratifying conventions in the states.
More significantly, the double supermajority requirements—two-thirds of both houses of Congress and three-quarters of the states—create extensive deliberation and stability in the amendment process and restrain factions and special interests. It helps to maintain the Constitution as a “constitution” and not an assemblage of legislative enactments. It also roots the amending process in the Founders’ unique concept of structural federalism based on the dual sovereignty of the state and national governments.
The Virginia Plan introduced at the start of the Constitutional Convention called only in a general way for an amendment process that would allow but not require amendment by the national legislature “whensoever it shall seem necessary.” The Committee of Detail proposed a process whereby Congress would call for an amendments convention on the request of two-thirds of the state legislatures. After further debate, the delegates passed language, proposed by Madison (and seconded by Alexander Hamilton), that the national legislature would propose amendments when two-thirds of each house of Congress deem it necessary, or on the application of two-thirds of the state legislatures. Proposed amendments were to be ratified by three-fourths of the states in their legislatures or by state convention. Just before the end of the Convention, George Mason objected that the amendment proposal would allow Congress to block as well as propose amendments, and the method was changed once again to require Congress to call a convention to propose amendments on the application of two-thirds of the states.
The Constitutional Convention made two specific exceptions to the Amendments Clause of Article V, one concerning the slave trade (Prohibition on Amendment: Migration or Importation) and another on voting in the Senate (Prohibition on Amendment: Equal Suffrage in the Senate), but defeated a motion to prevent amendments that affected internal police powers in the states.
The advantage of the Amendments Clause was immediately apparent. The lack of a bill of rights—the Convention had considered and rejected this option—became a rallying cry during the ratification debate. Partly to head off an attempt to call for another general convention or a formal amendments convention under Article V, but mostly to legitimize the Constitution among patriots who were Anti-Federalists, the advocates of the Constitution (led by Madison) agreed to add amendments in the first session of Congress. North Carolina and Rhode Island acceded to the Constitution, and further disagreements were cabined within the constitutional structure.
Madison had wanted the amendments that became the Bill of Rights to be interwoven into the relevant sections of the Constitution. More for stylistic rather than substantive reasons, though, Congress proposed (and set the precedent for) amendments appended separately at the end of the document. Some have argued that this method makes amendments more susceptible to an activist interpretation than they would be otherwise.
Since 1789, well over five thousand bills proposing to amend the Constitution have been introduced in Congress; thirty-three amendments have been sent to the states for ratification. Of those sent to the states, two have been defeated, four are still pending, and twenty-seven have been ratified. Because of the national distribution of representation in Congress, most amendment proposals are defeated by a lack of general support and those amendments that are proposed to the states by Congress are likely to be ratified.
In a challenge to the Eleventh Amendment, the Supreme Court waved aside the suggestion that amendments proposed by Congress must be submitted to the president according to the Presentment Clause (Article I, Section 7, Clause 2). Hollingsworth v. Virginia (1798). In The National Prohibition Cases (1920), the Court held that the “two-thirds of both Houses” requirement applies to a present quorum, not the total membership of each body. One year later, in Dillon v. Gloss (1921), the Court allowed Congress, when proposing an amendment, to set a reasonable time limit for ratification by the states. Since 1924, no amendment has been proposed without a ratification time limit, although the Twenty-seventh Amendment, proposed by Madison in the First Congress more than two hundred years ago, was finally ratified in 1992.
Regardless of how an amendment is proposed, Article V gives Congress authority to direct the mode of ratification. United States v. Sprague (1931). Of the ratified amendments, all but the Twenty-first Amendment, which was ratified by state conventions, have been ratified by state legislatures. In Hawke v. Smith (1920), the Court struck down an attempt by Ohio to make that state’s ratification of constitutional amendments subject to a vote of the people, holding that where Article V gives authority to state legislatures, these bodies are exercising a federal function.
Although some scholars have asserted that certain kinds of constitutional amendments might be “unconstitutional,” actual substantive challenges to amendments have so far been unsuccessful. National Prohibition Cases; Leser v. Garnett (1922). The Supreme Court’s consideration of procedural challenges thus far does not extend beyond the decision of Coleman v. Miller (1939), dealing with Kansas’s ratification of a child labor amendment. The Court split on whether state ratification disputes are nonjusticiable political questions, but then held that Congress, “in controlling the promulgation of the adoption of constitutional amendment[s],” should have final authority over ratification controversies.
The careful consideration of the amending power calls into question theories claiming the right of the Supreme Court to superintend a “living” or “evolving” Constitution outside of the amendment process. Non-originalist versions of this argument are those of Akhil Amar, who contends that Article V limits only government and that the people can propose and ratify amendments by popular vote, and Bruce Ackerman, who posits that extra-constitutional “constitutional moments” (such as the period after the Civil War or the New Deal) effectively amend the Constitution through politics (e.g., the election of 1936) followed by judicial codification (e.g., Supreme Court decisions upholding New Deal legislation).
In the end, the Framers believed that the amendment process would protect the Constitution from undue change at the same time that it would strengthen the authority of the Constitution with the people by allowing its deliberate reform while elevating it above immediate political passions. “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government,” George Washington wrote in his Farewell Address of 1796. “But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.”
Matthew Spalding and Trent England
See Also
Article I, Section 7, Clause 2 (Presentment Clause)
Article V (Convention for Proposing Amendments)
Article V (Prohibition on Amendment: Migration or Importation)
Article V (Prohibition on Amendment Equal Suffrage in the Senate)
Suggestions for Further Research
RICHARD B. BERNSTEIN, AMENDING AMERICA: IF WE LOVE THE CONSTITUTION SO MUCH, WHY DO WE KEEP TRYING TO CHANGE IT? (1993)
Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-seventh Amendment, 61 FORDHAM L. REV. 497 (1992)
ROBERT A. GOLDWIN, FROM PARCHMENT TO POWER: HOW JAMES MADISON USED THE BILL OF RIGHTS TO SAVE THE CONSTITUTION (1997)
Edward A. Hartnett, A “Uniform and Entire” Constitution; Or, What If Madison Had Won?, 15 CONST. COMMENT. 251 (1998)
Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned 83 TEX. L. REV. 1265 (2005)
JOHN R. VILE, THE CONSTITUTIONAL AMENDING PROCESS IN AMERICAN POLITICAL THOUGHT (1992)
Significant Cases
Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798)
Hawke v. Smith, 253 U.S. 221 (1920)
National Prohibition Cases, 253 U.S. 350 (1920)
Dillon v. Gloss, 256 U.S. 368 (1921)
Leser v. Garnett, 258 U.S. 130 (1922)
United States v. Sprague, 282 U.S. 716 (1931)
Coleman v. Miller, 307 U.S. 433 (1939)
Convention for Proposing Amendments
The Congress, . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, . . .”
(ARTICLE V)
After the Virginia Plan introduced at the start of the Constitutional Convention called in a general way for an amendment process that would allow but not require amendment by the national legislature “whensoever it shall seem necessary,” the Committee of Detail proposed a process whereby Congress would call for an amendments convention on the request of two-thirds of the state legislatures. George Mason feared this method was insufficient to protect the states, while Alexander Hamilton thought that Congress should be able to propose amendments independent of the states. Madison (as recorded in his Notes of Debates in the Federal Convention of 1787) thought the vagueness of an amendments convention sufficiently problematic to reject the provision: “How was a Convention to be formed? By what rule decide? What the force of its acts?” After further debate, the delegates passed language proposed by Madison (and seconded by Alexander Hamilton) that combined the two ideas without an amendments convention: the national legislature would propose amendments when two-thirds of each house of Congress deemed it necessary, or on the application of two-thirds of the state legislatures. Proposed amendments were to be ratified by three-fourths of the states in their legislatures or by state convention.
Just before the end of the convention, George Mason objected that the amendment proposal would allow Congress to block as well as propose amendments, and the method was changed once again to require Congress to call a convention to propose amendments on the application of two-thirds of the states. Madison did not see why Congress would not be equally bound by two-thirds of the states’ directly proposing amendments (his original proposal for the states’ initiation of amendments) as opposed to the same number calling for an amendments convention, especially when the proposed Article V convention process left so many unresolved questions. In the end, Madison accepted the compromise to include an amendments convention but consistent with his earlier comments warned “that difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.”
As Madison predicted, the numerous unanswered questions inherent in the Article V amendments convention process have prevented its use. A first set of questions concerns calling the convention. The language here is “peremptory” according to Alexander Hamilton in The Federalist No. 85: “The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” Nevertheless, there is dispute about the tabulation of applications in triggering that call. There have been hundreds of applications for an amending convention over the years from virtually every state; some argue that there are currently more than enough applications to require Congress to call a convention. While various organizations have tabulated state applications, Congress has never officially tabulated or listed applications and has established no process for doing so. It is unclear, despite Hamilton’s confidence, whether Congress could be compelled to call an Article V convention if it chose not to.
A second set of questions concerns whether such a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amendments conventions in the nineteenth century were general, the modern trend is to call (and thus count applications) for conventions limited to considering a single amendment. There seems to be a consensus that a convention cannot be limited to considering a specific amendment, as merely confirming a particular amendment already written, approved, and proposed by state legislatures would effectively turn the convention for proposing amendments into a ratifying convention. The debate focuses rather on whether a convention must be general and without limits or whether the convention can or even must be limited to a subject or subject areas based on state applications.
Still, some scholars, such as Michael Rappaport, do suggest that a “ratifying convention” is not outside the scope of Article V. As evidence, they cite James Madison’s initial suggestion (that two thirds of the states should be able to propose amendments directly) and argue that the addition of a convention was merely to facilitate communication amongst the states in order to develop proposed amendments. If, however, two-thirds of the states were able to agree on the text of an amendment beforehand, then restricting the convention to an affirmation of that amendment would be appropriate.
Michael Stokes Paulsen makes an originalist argument that a convention properly understood holds broad powers as a deliberative political body. Other scholars argue from an originalist view that the states determine through their applications whether a convention is general or limited, and that an Article V convention is an agent of and responsible to the states. Robert G. Natelson has made a case for this view based on the history of interstate meetings prior to the Constitutional Convention. Nevertheless, it is not at all clear as a matter of constitutional construction that the power of two-thirds of the states to make applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution. The Federalist Papers, unfortunately, offer little guidance on this matter. Madison refers to amendments conventions in The Federalist No. 43 only in general terms, noting that Article V “equally enables the general and the State governments to originate the amendment of errors.” And in The Federalist No. 85, while discussing how Congress cannot limit the scope of an Article V convention, Hamilton says nothing as to whether states can or cannot do so.
A third set of questions concerns the many practical aspects of how an amendments convention would operate (time, place, duration, voting procedure, etc.) and whether authority over some or all of these questions belongs to the states or is implied in Congress’s power to call the convention. Congress has historically understood its authority to “call” a convention as a broad mandate to establish procedures for such a convention, and in the last forty years has considered (but not passed) numerous bills to that effect. These procedural issues (along with limiting the subject matter of the convention) raise a further question as to whether Congress can refuse to forward amendments for ratification if those amendments are deemed to be beyond the scope of the convention.
Lastly, there is the general question whether and to what extent aspects of such a convention (including going beyond its instructions) would be subject to judicial review. A suit asserting that existing applications require Congress to call an Article V convention, for instance, was denied at the district court level (and later denied certiorari) as without standing and because it raised political questions more properly the province of Congress. Walker v. United States (2001).
While a valid method created and available under the Constitution, “a Convention for proposing Amendments” has never been viewed as a tool for reform as much as an option to be deployed in extremis for the sake of maintaining the Constitution. Hence, the only time Madison proposed an amendments convention was during the Nullification Crisis of 1832, seeing it as a last ditch effort to prevent the unconstitutional alternatives of nullification and secession that then threatened the continued existence of the United States. Likewise, when Abraham Lincoln looked to constitutional reforms to resolve disputed questions in the midst of the Civil War, he noted that “under existing circumstances” the convention mode “seems preferable” precisely because it “allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose.” Yet when the immediate crisis was over, Lincoln strongly advocated what became the Thirteenth Amendment by congressional proposal and did not pursue an amendments convention, despite the amendment’s initial failure in the House of Representatives. It should be noted that in both cases an amendments convention was understood to be free to propose whatever amendments thought necessary to address the problems at issue.
The requirement that amendments proposed by such a convention must be ratified by three-fourths of the states is a significant limit on the process and likely prevents a true “runaway” convention from fundamentally altering the Constitution. It is worth noting, however, that of the amendments that have been proposed to the states the vast majority (twenty-seven out of thirty-three) have been ratified. Because of the lack of clear intentions or constitutional precedent, scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V.
Precisely because of the potential chaos of the process, the very threat of an amendments convention can be used to pressure Congress to act rather than risk an amendments convention. The movement favoring direct election of senators was just one state away from an amending convention when Congress proposed the Seventeenth Amendment in 1911. There was also an effort to overturn the Supreme Court’s 1964 one man, one vote decisions (Wesberry v. Sanders and Reynolds v. Sims). By 1969, the proponents obtained thirty-three state applications for a convention to consider amendments regarding legislative apportionment in the states; one vote short of the two-thirds necessary for Congress to call an amendments convention. Most recently, in the 1980s, state applications for a convention to propose a balanced budget amendment led Congress to vote on such an amendment and pass the Gramm-Rudman-Hollings Act (later declared unconstitutional in part by the Supreme Court) requiring the federal budget to be balanced.
Following the 2010 elections, renewed efforts on both sides of the political spectrum have looked to an Article V amendments convention as a way for the states to circumvent Congress in order to achieve various policy outcomes, in particular to propose a balanced budget amendment. More recently, some scholars, recognizing the many unknowns of an Article V amendments convention, have suggested that an agreement among two-thirds of the states under the Compact Clause (Article I, Section 10, Clause 3) could be used to address many of the procedural questions involved in that process.
Matthew Spalding
See Also
Article V (Amendments)
Article V (Prohibition on Amendment: Migration or Importation)
Article V (Prohibition on Amendment Equal Suffrage in the Senate)
Suggestions for Further Research
RUSSELL L. CAPLAN, CONSTITUTIONAL BRINKSMANSHIP: AMENDING THE CONSTITUTION BY NATIONAL CONVENTION (1988)
John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 Tex. L. Rev. 703 (2002)
Henry P. Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 Colum. L. Rev. 121 (1996)
Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693 (2011)
Michael Stokes Paulsen, How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention, 34 Harv. J.L. & Pub. Pol’y 837 (2011)
Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis 28 Const. Comment. 53 (2012)
Michael B. Rappaport, Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them, 96 Va. L. Rev. 1511 (2010)
James Kenneth Rogers, The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process, 30 HARV. J.L. & PUB. POL’Y 1005 (2007)
Significant Cases
Wesberry v. Sanders, 376 U.S. 1 (1964)
Reynolds v. Sims, 377 U.S. 533 (1964)
Walker v. United States (W.D. Wash., C00-2125C, March 21, 2001)
Prohibition on Amendment: Migration or Importation
. . . 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 . . .
(ARTICLE V)
Toward the end of the Constitutional Convention, after previous clauses concerning slavery had been settled, and in the midst of the discussion about the process of amending the Constitution, John Rutledge of South Carolina declared that “he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it.” An addition to the clause was immediately agreed to that forbade amending the Migration or Importation Clause (Article I, Section 9, Clause 1) and the Direct Taxes Clause (Article I, Section 9, Clause 4) prior to 1808, after which Congress could regulate the slave trade.
This provision calls attention to the delicacy and precariousness of the compromises involved in these two clauses. Even though only a few states had begun to move toward abolition or gradual emancipation at the time, the tide of anti-slavery opinion seemed so strong as to excite the demands of Georgia and South Carolina in particular to preserve the institution at least within their own states. Taking a mid-summer break from the convention and knowing Southern opinion on the matter, Alexander Hamilton—without breaking his pledge of secrecy—prevailed upon John Jay and the New York Manumission Society not to submit a proposed petition to the Constitutional Convention to abolish slavery. At Hamilton’s request, Jay even destroyed his draft of the petition.
Protecting the slave trade in the Migration or Importation Clause revealed Southern concerns about the strength of antislavery opinion (which was at that time focused on stopping the slave trade). In fact, in 1787, only North Carolina and Georgia permitted the importation of slaves, and so the slave states thought that it might be difficult to prevent a coalition of Northern and upper Southern states from changing the Constitution on this question by amendment. Likewise, shielding the Direct Taxes Clause was an indirect way to emphasize the “Three-fifths Compromise” (Article I, Section 2, Clause 3) concerning the apportionment of direct taxes, as well as adding “other taxes” to that ratio, reflecting significant fears that the power to tax could be used to undermine the institution of slavery. Earlier, Gouverneur Morris, the most outspoken opponent of slavery at the convention, nonetheless conceded that “he did not believe that those [southern] States would ever confederate on terms that would deprive them of that trade.”
Underscoring the temporary nature of the compromise, language in Article V ties the Direct Taxes Clause to this clause’s “implied invitation” to legislate on the slave trade after 1808. By that time, the internal production of slaves would be sufficient to supply the growing market so that economic self-interest did not stand in the way of legislation based on the moral revulsion to the slave trade. Congress accepted the invitation, and although the law underwent several modifications in subsequent years, on March 2, 1807, it passed a federal prohibition of the slave trade, effective January 1, 1808. The vote in the Senate had been eighteen to nine (with seven abstentions) and, in the House, 113 to five (with twenty-two not voting). A few weeks later, on March 25, 1807, following decades of agitation by William Wilberforce, the British Parliament also banned the trade.
Interestingly, reference to the Fugitive Slave Clause (Article IV, Section 2, Clause 3) is not included here among the clauses protected from amendment. The omission signifies the broad consensus supporting the Fugitive Slave Clause and the fact that it was not at the time thought to be controversial.
Matthew Spalding
See Also
Article I, Section 2, Clause 3 (Three-fifths Clause)
Article I, Section 9, Clause 1 (Migration or Importation Clause)
Article I, Section 9, Clause 4 (Direct Taxes)
Article IV, Section 2, Clause 3 (Fugitive Slave Clause)
Suggestions for Further Research
Paul Finkelman, The American Suppression of the African Slave Trade: Lessons on Legal Change, Social Policy, and Legislation, 42 AKRON L. REV. 431 (2009)
Henry P. Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996)
Prohibition on Amendment: Equal Suffrage in the Senate
. . . no State, without its consent, shall be deprived of its equal Suffrage in the Senate.
(ARTICLE V)
Article V specifies the means by which the Constitution can be amended. It ends by forbidding amendments that would repeal the language in Article I, Section 9, which prohibits a ban on the importation of slaves prior to 1808, or the language in Article I, Section 3, which provides for equal representation of the states in the Senate. These are the only textually entrenched provisions of the Constitution. The first prohibition was absolute but of limited duration—it was to be in force for only twenty years; the second was less absolute—“no state, without its consent, shall be deprived of its equal Suffrage in the Senate”—but permanent.
The first unamendable provision of the Constitution was part of what Frederick Douglass called the “scaffolding” necessary for the construction and adoption of the Constitution’s “magnificent structure, to be removed as soon as the building was completed.” The second unamendable provision shows how seriously the smaller states were committed to protecting the “original federal design.” Its sponsor was Roger Sherman of Connecticut, architect of what is often called the Connecticut Compromise or “the Great Compromise,” whereby states were to be represented proportionally in the House and equally in the Senate. Two days before the convention ended, on September 15, Sherman “expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate.” He therefore proposed language barring amending the Constitution to deprive states of their equal suffrage. When his motion failed, Sherman indicated how profoundly concerned he was by proposing the elimination of Article V altogether. This motion also failed, but it prompted Gouverneur Morris to propose the language ultimately adopted by the Constitutional Convention. As James Madison wrote in his notes, “This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question saying no.”
The provision does more than protect the equal representation of small states. As Madison noted in The Federalist No. 39, it ensures a polity of mixed sovereignty, one in which the states are an integral part of the federal government. This, of course, is precisely why those who do not think the Constitution “democratic” enough would wish to remove that portion of the Constitution. They argue variously that Article V can be amended through the convention mechanism; or by the people as a whole as stated in the Preamble; or, more brazenly, by first amending out the provision of the Fifth Article, and then requiring the Senate to be apportioned by population. Henry Monaghan points out that such proposals are inconsistent with the vision of the Framers and would undermine the structural plan of the Constitution. That plan is an integrated and dynamic federalism.
As Chief Justice Salmon Chase declared in Texas v. White (1869):
Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
Denying the states their intended role in the federal government by abolishing their equality in the Senate would destroy the grounding of the Union: “without the States in union, there could be no such political body as the United States,” Texas v. White, citing Lane County v. Oregon (1869). Moreover, as the text itself stands, at most the provision could only technically be voided by the unanimous consent of all the states.
This provision has been seldom invoked. Most recently, it has been employed by those opposed to proposed constitutional amendments that would give the District of Columbia full representation in Congress. Their argument is that an amendment that would allow the district—a nonstate—to have two senators would deprive the states of their equal suffrage in the Senate and would therefore require unanimous ratification by all the states. Others have suggested that the provision would void a constitutional amendment requiring a supermajority to pass tax increases.
Ralph Rossum
See Also
Article I, Section 3, Clause 1 (Senate)
Article V
Suggestions for Further Research
Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994)
Lynn A. Baker, Federalism: The Argument from Article V, 13 GA. ST. U. L. REV. 923 (1997)
Henry P. Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996)
Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665 (2002)
John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385 (2003)
Stewart E. Sterk, Retrenchment on Entrenchment, 71 GEO. WASH. L. REV. 231 (2003)
Significant Cases