FAQ

Isn’t constitutional amendment impossible? No. Article V procedures have conditioned us to believe in the near-impossibility of constitutional amendment. This proposal does not use Article V procedures.

Is this legal? Yes. Article V is not the exclusive means to amend the Constitution. This is clear from the text and history of Article V.

More importantly, the people have supreme power over all constitutions: the power to create, alter, and abolish.

How did you come up with this process/strategy? When we see a poll that a majority of Americans are opposed to the Electoral College, what we imagine is, “If there were a referendum, would the people abolish the Electoral College?”

The million dollar question is: How do we get such a referendum? It won’t come from Congress because of small-state power in the Senate. It won’t come from the president or the Supreme Court. It won’t come from an Article V Convention either, because small states would not allow one to be called, and at any rate, any proposal from such a convention would have to be ratified by three-fourths of the states.

That leaves the states, which happen to control elections. It has to come from the states. Here is more reasoning…

Is this really possible? It is.

Citizens of large states outnumber citizens of small states by about two to one. The final vote could be a landslide.

The federal government will recognize this amendment. Here is a simulation.

Is this going to be a constitutional struggle between the large states and the small states? Mostly, but some small states may surprise us with support.

Could this become a constitutional struggle between the Democratic Party and the Republican Party? Maybe. Republicans are surely going to be more resistant to these reforms.

However, history tells us that resistance to advances in political and civil equality is a terrible strategic long-term move for political movements and parties. Tories supported virtual representation and monarchy in the 1770s and had no political viability after independence. The Democratic Party was the party of slavery during the Civil War, and then the Republican Party dominated for two generations. Unified Republican Party opposition to these reforms could tarnish the conservative brand for a long time and would be strategically unwise, in addition to being morally wrong.

Will small states threaten to secede? I doubt it. The last time that happened, the secessionists were people who did not believe in political and civil equality. The same would be true in this case. Plus, D.C. and the territories have nonwhite majorities. It would be a terrible, shameful association all around. Small-state citizens, like large-state citizens, are mostly good people, and most will see the justice of these reforms, even if their first reaction to these ideas may be negative.

Isn’t amendment by majority vote of the people dangerous? No. The American people are good and fair people. We will make the Constitution even better in years to come.

Equality over the law demands majority rule of the people.

What about minority rights? Most Americans support minority rights. Amendment by referendum is more likely to lead to the expansion, rather than contraction, of constitutionally protected minority rights.

Isn’t this a threat to the Constitution? No. Because the American people believe in equality, and because these reforms will require the support of a majority of voters, a majority of voters will love the Constitution even more after these reforms. Then, the Constitution will periodically change by amendment according to the will of the people.

The greater threat is dissatisfaction caused by malapportionment, the election of presidents who did not get the most votes, and the near-impossibility of constitutional change.

Is this just a precursor for liberal amendments? No. Both conservatives and liberals can use amendment by referendum.

What if I like the fact that the Constitution is short? I do, too, but concision is less important than equality over the law.

What did the Founding Fathers think about equal state suffrage in the Senate? The best and brightest were all opposed: Franklin, Adams, Madison, Hamilton, Wilson, Jefferson, and Washington.

But wasn’t it the Great Compromise, or Connecticut Compromise? It sounds amicable. The large states argued strongly against equal state suffrage through the final vote on July 16, 1787. They publicly described it as a compromise after the signing once they had decided to support ratification. It was not amicable.

Why do we have equal state suffrage in the Senate? Equal colonial/state suffrage started with the Continental Congress in 1774. There were more small colonies than large. They used this voting power to protect equal state suffrage in the Articles of Confederation and as the ground rules at the Constitutional Convention. Equal state suffrage finally gave way in the design of the House, but stayed in the Senate. Equal state suffrage has protected itself since the founding.

The general rule is that voting systems are self-protecting. Put another way, it is very hard to get a voting system to change itself, whether that involves ending virtual representation, allowing black suffrage, allowing women’s suffrage, ending equal state suffrage, or ending gerrymandering. Something extraordinary has to happen.

How does equal state suffrage in the Senate affect public policy? Primarily, small-state senators steer disproportionate spending and subsidies to their states.

What did the Founding Fathers think about majority rule? They were in favor.

What do most Americans think about the Electoral College? They are opposed.

Why do Article V processes require supermajorities? To protect inequality: equal state suffrage in the Senate, the three-fifths compromise, and slavery in general. It was not to protect the Bill of Rights, which was not a part of the original Constitution.

What kinds of amendment procedures do other countries have? Some are based on majority rule, and others require supermajorities.

The general rule is: the greater the malapportionment, the greater the supermajority required.

The U.S. Constitution is the hardest to amend in the world and the U.S. Congress is one of the most malapportioned.

If we can do all this, why not make a new constitution? Most Americans have a deep love for the Constitution. Also, conservatism demands that we retain as much as possible: everything that does not clearly violate the principle that all voters have equal voting power over the law.

Which states are small and which are large? A state is large if its population comprises more than 2% of the U.S. population and is therefore underrepresented in the U.S. Senate. Large: CA, TX, FL, NY, IL, PA, OH, GA, NC, MI, NJ, VA, WA, AZ, MA, IN, TN. Small: the rest.

See also here.

How should we end the disproportionate voting power of small-state citizens in the Senate? There are infinite options, but only two simple ones: abolish the Senate, or give each senator one vote for each resident of their state. The second is more conservative and is proposed here. It is simpler, actually, in that we don’t have to rework their special powers: impeachment and advice and consent. It is better strategically as well, since we will be able to avoid the debate about unicameralism versus bicameralism.

What if census counts are inaccurate? Should that affect the passing of legislation? It will be more accurate than one vote per senator and zero votes for D.C. and the territories. That’s the main thing.

Should we have a runoff if no presidential candidate gets a majority? Yes. Third party candidates should not spoil elections. Equality over the law demands majority rule.

Why end the filibuster? It is a supermajoritarian rule. Supermajoritarian rules for the purpose of lawmaking inherently violate the principle of equality over the law. Further, it would be a contradiction to have simple majority rule in the amendment process and a supermajority rule in the statutory process.

Then why not end two-thirds as the threshold for removing a president through impeachment or 25th amendment procedures? These procedures are more complicated in that they affect multiple branches of government. If Congress could remove the president by majority vote, we might wind up with a lot of presidents appointed by Congress, in which case, the president would be more like a prime minister. We don’t need to tie this proposal up with the argument between presidential democracy and parliamentary democracy.

Why not add other stuff? Voting rights for felons, ending gerrymandering, campaign finance, etc.? Again, other stuff might detract from overall support. At any rate, there will be a new, simpler amendment procedure available after ratification.

Why not fix the Senate but leave Article V as is? The Senate and Article V are tightly-bound because they both have equal state suffrage. They are self-protecting and mutually protecting. We have to fix them simultaneously.

For future amendments, why do we need the option of proposal by an Amendment Convention initiated by the states? This part of Article V is sound. Proposals by Congress are likely to centralize power, while an Amendment Convention initiated by the states is more likely to decentralize. In either case, the people will decide.

For future amendments, why require a majority of Congress or an Amendment Convention to make a proposal? Why not let either simultaneously make proposals, or allow amendment by initiative?  Voters can’t be simultaneously faced with contradictory, overlapping proposals. Majority rule by one body prevents that.

What about the last clause of Article V…Providedthat no State, without its Consent, shall be deprived of its equal suffrage in the Senate? This only qualifies amendments that use Article V procedures. This proposal does not. This proposal explicitly declares that Article V is inoperative.

Is there proposed text? Yes.

Can this proposed text be changed? Yes. The states/D.C./territories certainly will do so. This is a proposal.

Can I read more? Yes, try the blog.

See Amar for Article V non-exclusivity here and here. For even more, see his America’s Constitution and Ackerman’s We the People: Transformations.

The Summer of 1787 is a pretty good narrative of the Constitutional Convention, but there are others. Here is the best online primary source.

The best summary of the public policy impact of equal state suffrage is Sizing Up the Senate.

Also, the Constitution.