(For a shorter version of this scenario, see here.)
Rules recap for our self-declared amendment procedure:
- It is formally proposed by a simultaneous majority vote of the people of a group of states/D.C./territories that comprise a majority of the population of the United States.
- It is ratified six months later, provided that the states/D.C./territories that did not vote the first time have an opportunity to do so, and that the overall vote remains a majority vote of the people.
Let’s simulate this. I imagine this process is most likely to start in Washington, D.C. Suppose that a D.C. city council member introduces this proposal. It is discussed. Experts are brought in. The D.C. city council figures that maybe this can work. At any rate, all other attempts to secure congressional representation for D.C. have failed.
The D.C. city council decides that this amendment proposal, in conjunction with a referendum on statehood, shall be on the ballot during the next election in the middle of a presidential term, in order to eliminate any possibility of a controversy about which rules apply to a presidential election. They decide not to try to lobby the large states to participate because it is very unlikely that this idea could reach the Section 1 threshold in one election cycle anyway. Ultimate success is likely to require multiple election cycles. For now, the people of D.C. will vote, and everyone else can watch.
How exactly is the D.C. city council going to put a non-Article V-compliant constitutional amendment proposal on the ballot? Does the D.C. city government print its own ballot, or does the federal government? I’m not sure, but I am sure that the D.C. city council can find a way. If it is not on the “official” ballot, they can print separate amendment ballots, to be used within the polling station. Or voters could cast these separate ballots somewhere just outside the official polling stations. Or D.C. could administer its own dedicated referendum, possibly by the mail.
The rest of the government is unlikely to give coherent opposition. The courts are unlikely to intervene, on both First Amendment grounds, and because of Coleman v. Miller, which declared that Article V questions are political and non-judiciable. Congress is unlikely to intervene because the House is dominated by large-state representatives who may want to reform the Senate, or because of general divided government, or because of the filibuster. As for the president, it may depend on who is holding the office. Because the Section 1 threshold would not be met if only D.C. residents vote, attempted presidential interference would appear to be an overreaction, and would have the effect of accelerating attention to this cause. Most likely, the president would not interfere.
Let us assume that in November, 2018, D.C. citizens participate in such a vote. It is nearly impossible to imagine this vote not passing. A reasonable, middle-case scenario is that D.C. citizens vote for the amendment with about 90% in favor. The bad news, I suppose, is that the amendment proposal immediately is defeated because the first Section 1 threshold is unmet. However, the good news is tremendous. This would be the first time in U.S. history that any group of American voters has directly passed judgment on the exclusivity of Article V, the representational design of Senate, or the Electoral College. Even if this vote does not settle the Article V exclusivity issue, D.C. citizens would have demonstrated that citizens can express their opinions on that exclusivity through a state referendum without interference from the federal government. They would have established a template for large states. Let us further assume that the day after the election, the D.C. city council certifies the results and immediately schedules a new vote for 2022.
Maybe Congress at this point will try conciliation. It could try granting D.C. a representative, either by statute or by amendment, or by granting statehood to D.C. The problems, however, may be insurmountable. Representatives who support a comprehensive solution could conceivably vote against any incremental solution in order to let this thing play out. Large states may remain opposed to D.C. statehood because that would further dilute their voting power in the Senate. The filibuster and Article V thresholds would also make action difficult.
More importantly, congressional action would constitute “blinking first” in a big way. Small-state senators have ignored D.C.’s pleas for representation for decades. The obvious conclusion from congressional action would be that questioning Article V exclusivity terrifies Congress, and that because Article V exclusivity would remain unresolved, this conciliation would actually strengthen the case for Article V non-exclusivity. Therefore, it is quite possible that Congress will remain unable to agree on any course of action.
Now it is 2019. With roughly 12% of the U.S. population, California is the next most obvious candidate to join this movement. California and D.C. alone get us about one-quarter of the way to the Section 1 threshold. With plenty of time to prepare for 2022, perhaps California and other similarly inclined states may take their time. Those state legislatures may hold hearings and commission reports. They may pass general resolutions in support. They may recommend changes in the text of the amendment proposal, but this could be tricky, since the text has to be the same in all states. Any states which advocate modifications could organize a convention of all the states which have passed general resolutions in support of the proposal, with the general understanding that the proposal which emerges would be put to the voters in all states concerned. Representation within such a convention would surely be proportional to population. This convention would be constitutional by virtue of the First Amendment’s guarantee of the right to assemble.
Suppose that the Section 1 threshold (that the group of participating states represent a majority of the nation’s population) fails to be met again in 2022, but that a strong majority of voters in D.C. and a handful of states vote for the proposal. They immediately schedule another vote for 2026. The debate continues. Suppose that the Section 1 threshold is eventually met. Voters in 2018 and 2022 knew that there were not enough states participating in those years and cast votes to make a statement or establish a template. But now this is for real. Since support for the proposal had to have been high in these states to get the state legislatures to put it on the ballot, it is almost certain that a majority of voters would vote for the proposal on Election Day.
Then control passes to the holdout states. They have six months, and two choices: participate or don’t. As previously discussed, state legislatures which want to defeat the proposal are likely to base their decision to participate on whether they think they can succeed. These state legislatures may pass resolutions condemning the proposal and interpreting Article V, and they may even put a competing resolution before their people in a referendum, but these actions are simply variations of not participating.
Now, let us assume that when the clock has struck midnight six months after Election Day, the overall vote in favor of the proposal is a majority. Again, it does not matter whether some states never participated; a majority of voters in the states which did participate anticipated this scenario and decided that non-participation cannot prevent ratification.
Then, the federal government will transform. The House of Representatives will immediately vote to recognize the validity of the new amendment. They will do so because a majority of their members come from large states, and this amendment will increase the voting power of their citizens in Congress. They will do so because opposing the will of the people in the first national referendum in U.S. history will make their re-election impossible. They will do so because the people have spoken. They will do so because it is right.
As for the Senate, will their vote to recognize the amendment proceed according to one vote per representative, or the new system? In theory, we could have a Senate schism. Sixty senators from mostly small states could claim to constitute a majority of the Senate, while forty senators from mostly large states could make the same claim. They could in theory just fight it out with their fists on the floor of the Senate. Or one group could move to another building and claim to be the real Senate. Both groups could invoke Article I, Section 5 (Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members) and could formally expel all members of the other group. The president could get involved.
Now what about the president? It is time to make a choice. He or she could side with the people, the House, and the proposition that all men and women are created equal, and it will likely be over. Or he or she could side with the Article V exclusivists and senators from small states while trying to convince the people that Article V is binding in conscience. The latter course promises endless conflict and the wrath of the judgment of history.
So this is what is going to happen. The president will say that this is an amendment. There is not going to be any schism in the Senate. Senators from small states are going to back down because they and a majority of their constituents will know in their hearts that this is just and we must move on. It is over. The people have spoken. The government will honor the will of the people. It’s a new day.
Nor will secession threats emanating from some quarters in small states amount to anything. Advocacy for secession under this scenario, as it was in 1860-1861, is for losers: people who lost a fair vote, who reject the outcome of that vote, and who do not believe in human equality. Secessionists could conceivably have a fairly funny problem – arguing that they should be able to vote within their state for secession by simple majority, after having argued for the need for supermajoritarianism in the amendment power. However, I do not believe that a majority of the people in any of the small states will advocate secession. I believe that a strong majority of small-state citizens are ultimately decent and fair, and that they also believe in human equality. I believe the small states will accept the new constitutional order.
Finally, a coda: this new amendment will find itself challenged in the Supreme Court. There can be no doubt what the outcome will be. This amendment is superior to the original ratification in every way. First, it is substantively superior: a clear advance in equality over the law. Second, it is procedurally superior: directly ratified by the people, not just by state conventions, and the people included men and women, regardless of color. If a minority of the people did not participate, then that was by the choice of their state, and at any rate, Article VII of the Constitution provided for ratification even with state holdouts as well. Finally, it is temporally superior. It just happened. It is the judgment of living Americans. That is the interpretive case, and it is overwhelming.
The political case is just as strong. The Supreme Court may have the courage to take on one branch occasionally, and two rarely, but it will never take on the people when the people interpret the meaning of We the People. To do otherwise would damage the Court beyond all repair, and/or bring about impeachment charges before the ink on their opinion is dry. This is an easy call. The Supreme Court will unanimously affirm the validity of this amendment.