Small-state senators and legislatures are not going to reform the Senate or the amendment power via Article V. It has been over two hundred years. It is not going to happen. We have to develop a new procedure – one as consistent as possible with the proposition that all men and women are created equal.
If the people vote in favor of something that says it is an amendment, then it is an amendment. Reading this page and Simulation is probably necessary to be even marginally convinced of this, but suspend disbelief for the time being. The voice of the people trumps the voice of any institution. The question is: how do the people get this vote? Somehow, the government has to let it happen.
Congress could, by simple majority vote in both houses, call an amendment convention, which could by simple majority propose amendments, which could be ratified by a simple majority vote of the people. Better still, Congress could simply draft an amendment and send it directly to the people for ratification. Assuming the filibuster is first broken, only a bare majority of senators would be needed. Still, it might not be possible, as a strong majority of senators represent small states and may very well vote according the narrow interests of their states. The problem is that while these methods are fully compliant with the proposition that all people are created equal, they are not minimally compliant. These methods require the consent of the Senate, but belief in the supremacy of the proposition that all people are created equal demands that we reject the necessity of that consent.
Consider the states. States conduct their own elections and can decide whether to put referenda or amendments to their state constitution on their ballot. The difficulty seems to be that states cannot compel other states to take any similar action, but this can be overcome. Suppose that a group of states, territories, and D.C., which constitutes a majority of the population of the U.S., conducts an identical non-binding referendum which states something like, “The People retain the right to amend the Constitution by simple majority vote.” Suppose that this non-binding referendum receives a majority vote.
Perhaps it is not clear what this would mean. After all, a bare majority vote of a bare majority of the people could only constitute a little more than a quarter of the people. Now suppose that the coalition of voting states acknowledges that such a vote would have a limited meaning and requests that the remaining states conduct an identical non-binding referendum within a reasonable but fixed period of time. These remaining states would have a choice. In all likelihood, any remaining states controlled by legislatures that believed in Article V exclusivity would look at both the results of the initial vote and polling data in the states which have not yet voted and would assess whether they could win. If the initial coalition only represented 51% of the population, only 51% of voters voted in favor, and polling data indicates that a strong majority of the population in the remaining states would oppose the referendum, then those states are likely to participate in order to defeat the measure.
On the other hand, suppose that the initial vote received 60% of the vote, from a coalition that consists of 60% of the people, and polling suggests that the remaining states cannot win. In this case, small states are likely to refuse to participate, and to denounce the entire exercise. Perhaps what the remaining states will say is that, 60% of 60% is only 36%, which is not a majority of the people, so therefore the motion must fail. The problem here is that this counts all of the people in those remaining states as opposed to the referendum, but they did not even vote. This amounts to granting the majority of people in a non-voting state the right to vote on behalf of the minority in that state, while denying this right to the majority of the people in the voting states. Suffice it to say that this counting methodology violates the proposition that all people are created equal.
This methodology is at odds with our traditions as well. In most other democratic processes in this country – elections, voting within legislatures, etc. – the rule is, if you don’t vote, you don’t count. It is that simple. (The exception is of course Article V: state legislatures which choose not to vote on proposed amendments still count in the denominator of three-fourths for ratification, but Article V is no moral guide.) Therefore, in any scenario, at the end of the day, whether the remaining states choose to participate does not matter. If a majority of the voters supported the measure in the initial vote, and this remained a majority at the conclusion of the reasonable but fixed period of time, then that means that the people retain the right to amend the Constitution by simple majority vote. That is a determination on the question of Article V exclusivity that is a perfect as our existing political institutions will allow.
Maybe Congress would take this result and start sending proposed amendments to be ratified by the people, as I have suggested. But suppose that the Senate still resists. The states could simply repeat the process that they used to declare their right to amend the Constitution by simple majority vote, but this time, the text would actually amend something, and the language would declare that this is an amendment. Upon a successful initial vote, the remaining states would have the same difficult decision to participate or not. Again, regardless of their decision, after the second period of time has elapsed, if a majority of votes cast favored the amendment, then the proposed amendment has been ratified. Believe that. It is an amendment because a majority of voters says it is. That’s all there is to it.
But if this is the case, then it is not really necessary to first have a non-binding referendum that is a statement of “right,” followed several years later by a self-declared amendment. We can compress the two into one. Our group of states, etc., can simply propose an amendment that declares that it is an amendment. The statement of “right” is implicit in the whole exercise. In other words, the voter will have to wrestle with two questions: “Do We the People have the right to amend the Constitution in this manner?” and “Do I agree with the substance of this amendment?” An affirmative vote means that the voter has answered “Yes” to both of these questions. So again, a majority vote at the end of our reasonable but fixed period of time means both that the people have this right, and that this is an amendment. End of story. Update the textbooks.
I propose the following:
Article V is inoperative on the proposal and ratification of this amendment.
This amendment shall be proposed in a biennial election upon a majority vote of the people in a group of States, Territories, and the District constituting the seat of Government of the United States, provided that this group comprises a majority of this nation’s population.
This amendment shall be ratified six months later, provided that the people of the States, Territories, and the District constituting the seat of Government of the United States which did not participate in this vote may do so in the interim, and that the overall vote remains a majority vote of the people.