Category Archives: Article V

The Illogic of Using Article V to Amend or Repeal Article V

I think there are three basic positions that one could take on Article V:

1. It should not be reformed because it has worked well enough.

2. It should be reformed because it violates equality over the law and/or because it is too hard to amend the Constitution, but we should amend or repeal it according to the procedures of Article V.

3. It should be reformed because it violates equality over the law, and we should amend it according to the principles of equality over the law.

Suppose that there is a national debate about the representational design of the Senate and Article V. The #2 people are not going to have any success because it does not make any logical sense to declare that Article V is so bad that it must be amended or repealed, while declaring that Article V is good enough to be used to amend Article V. Plus, the numbers just don’t work out for #2.

Soon after debate starts, #1 v. #3 will be the only game in town.


How Article V Violates Equality Over the Law

It is necessary to more fully judge Article V by the standard of equality over the law.

Article V Text Equality Over the Law
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, Small state citizens are overrepresented in the Senate, and are therefore overrepresented in the proposal of amendments. D.C. and territorial residents have no vote in Congress. Plus, it is a supermajoritarian rule, alone capable of denying reform of the election of the President and the design of the Senate.
or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, Each state legislature has one vote by this method; small-state citizens are therefore overrepresented. D.C. and territorial residents have no state. It is supermajoritarian. Representational rules within such a convention are undefined, and we have never had such a convention.
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; Equal state suffrage again…This rule is even more strongly supermajoritarian. It may be argued that a supermajority rule was once appropriate here because of the different sizes of the states, or because states in favor might be barely so, and those opposed strongly so, but I think this argument should lead one to support ratification by direct vote of the people.
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; No amendment before 1808 could end the slave trade or allow Congress to challenge slavery by disproportionately taxing slave-owners. This is obsolete, of course, and it also clearly violated human equality.
and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. This super-duper-majoritarian rule protects a rule that violates human equality, and violates human equality itself.

This is all fixable. We can bring our Constitution in line with our values. We can do it.

The Futility of Trying to Use Article V to Reform Article V or the Senate

The closest the Electoral College ever came to being abolished was in 1970. An amendment proposal known as the Bayh-Celler Amendment passed the House in 1970 by a vote of 339-70. It narrowly failed to pass cloture votes in the Senate, by votes of 54-36 and 53-34. According to The New York Times, the first vote of 36 in opposition consisted of 18 Democrats and 18 Republicans, and was “almost entirely a coalition of Southerners and conservatives from small states who had protested that abolishing the Electoral College would reduce their states’ political influence.” Because roughly two-thirds of all members of the House come from large states, and one-third of all members of the Senate come from large states, that means that as many as 60 representatives and 20 senators from small states must have voted for the amendment. These votes constitute perhaps the high-water mark in all U.S. history of elected officials from small states volunteering to relinquish disproportionate constitutional voting power over the law.

The good news is that not everyone votes to preserve their disproportionate voting power. The bad news is that 61% of the Senate (53-34) is the best vote to reduce the disproportionate power of small-state citizens in over 200 years. That means that a strategy that relies on getting to 67% (2/3 of the Senate for amendment proposal, or 2/3 of the states to call an amendment convention), or to 75% (3/4 of state legislatures or conventions for ratification) is, well, not a strategy at all. It is an appeal to magic. It amounts to acquiescence in inequality.

I should acknowledge and endorse another plan for equality over the law that avoids Article V: National Popular Vote. It would ensure that the presidential candidate who gets the most votes will win. Maybe it will work.