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.
“…the people may change the constitutions whenever and however they please. This is a right, of which no positive institution can ever deprive them.” James Wilson, 1787.
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? Yes already! 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.
Will states threaten to secede? They may talk about it, but I doubt it will get far. There are very serious intellectual challenges with secession attempts:
- 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 non-white majorities. It would be a terrible, shameful association all around. (I know, some people have no shame.)
- Basically all Americans have pledged allegiance to the flag.
- Secessionists would have to claim that they can secede even though the Constitution does not explicitly allow or forbid it, while denying that Americans can make up a new amendment process when the Constitution does not explicitly allow or forbid it.
- The logic of secession also means that counties of secessionist states can secede and rejoin the union.
- Secession-curious states already have and seem happy with the features this reform is trying to fix (direct election of the executive, proportional representation in both chambers of the legislature, amendment by referendum, representation of the capital, etc.).
- They would realize they would need to do it by referendum, which would be very unlikely to succeed.
I think a majority of citizens in each state 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.
Political equality demands majority rule of the people.
The greater danger is continued dissatisfaction caused by malapportionment, the election of presidents who did not get the most votes, and the near-impossibility of constitutional change.
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. There is no more secure basis for minority rights than majority rule by referendum.
Wouldn’t U.S. history have been terrible if the Constitution had been easier to amend? No. It would have been better. Only the three Deep South states wanted the international slave trade to continue until 1808. That would have been amended away immediately. That’s about 57,000 fewer people brought to the U.S. into slavery and 10,000 fewer deaths on slave ships. Slavery would have ended sooner, perhaps with an earlier start date to the Civil War. The Electoral College and equal state suffrage in the Senate would be long gone. Women’s suffrage would have happened sooner. The poll tax amendment would have happened sooner. Some of our current cultural war issues with a constitutional nexus would have been resolved through the amendment process.
Shouldn’t the proposal phase of future amendments require a supermajority? No. Political equality demands that the proposal phase also be simple majority rule.
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 that only one body at a time (Congress or an Amendment Convention) may 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 at a time prevents that.
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.
Why do Article V processes require supermajorities? To protect slavery and the slave trade more than anything else, but also to protect equal state suffrage in the Senate. 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. Some end in a referendum, and some are legislative only.
Ireland, Denmark, and France are the most similar to what is proposed here: majority of the legislature and majority of the people.
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. The small colonies/states used this voting power to protect equal state suffrage in the Articles of Confederation. The ground rules at the Constitutional Convention were equal state suffrage by default. 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? Small-state senators steer disproportionate spending and subsidies to their states. Small-state senators receive a larger proportion of their campaign funds from special interests and are more responsive to those interests. Small states in the aggregate have a higher per-capita consumption of fossil fuels and are more resistant to tackling climate change. And then there is all the cultural and Supreme Court stuff.
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.
If we can do all this, why not make a new constitution? Most Americans have a deep attachment to 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. We can have those debates after ratification.
What if census counts are inaccurate? Should that affect the passing of legislation with the Senate as proposed here? 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.
Equality over the law? Political equality? What’s that again? That’s the same thing: the principle that all voters should have an equal say in their government. It is the most important principle in democratic societies.
The Constitution is great in this regard in that it provides for regular elections, has a census with reapportionment, guarantees republican government at the state level, and protects political minorities with the First Amendment and other features like habeas corpus and bans on ex post facto laws and bills of attainder.
The Constitution violates this principle with equal state suffrage in the Senate, the Electoral College, non-representation of territories and D.C., and the supermajoritarian amendment process.
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 regular lawmaking 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 end gerrymandering in this proposal also? After ratification, we need the federal government to recognize the amendment. The first step is for the House to recognize it. They should naturally support this reform, since most of them are from large states, and since this reform will give their states more power in the Senate. If we meddle with their districts, they might have an incentive to not recognize the amendment. It is better strategically to defer consideration of gerrymandering. I think.
Why not add other stuff? Voting rights for felons, campaign finance, etc.? 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? Fixing the Senate requires self-declaring an amendment process. That seems to require a rewrite of the amendment process.
What about the last clause of Article V…Provided…that 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 use Article V at all. This proposal explicitly declares that Article V is inoperative.
Is there proposed text? Yes.
Can this proposed text be changed? Of course! 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.