an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Constitutional Puzzle—Or the Limits of Textualism?
Article V sets forth the mechanisms for amending the U.S. Constitution. Article V creates two routes by which amendments may be proposed: Congress may itself propose constitutional amendments by a two-thirds vote of both houses. Alternatively, if two-thirds of the state legislatures ask for it, Congress must call a convention for the purpose of proposing amendments. Article V also creates two routes by which proposed amendments may be ratified: by the legislatures of three-fourths of the states or by conventions in three-fourths of the states.
Article V contains the following substantive limit on the use of the amendment mechanisms:
[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
So here is a puzzle: How many states does it take to ratify an amendment reducing the vote of Wyoming in the Senate to one vote? Textually, the answer is fifty states.
Ratification by three-fourths of the states means 38 states must ratify the proposed amendment. But ratification by 38 states leaves twelve states that have not agreed to the change. Those twelve states retain a vote equal to each other’s vote and equal to that of 37 other states. But they no longer have a vote equal to one state, in this case Wyoming. The twelve states that have not ratified have therefore been deprived of their equal suffrage in the Senate. Unless ratified by all fifty states an amendment depriving one state of an equal vote in the Senate violates Article V.
If you think this conclusion is wrong, ask yourself how you feel about an amendment ratified by thirty-eight states that gives California three votes in the Senate. Or an amendment ratified by thirty-eight states that gives thirty-eight states three votes each in the Senate. Or that gives them ten votes each in the Senate.
Textually, an amendment that changes the number of votes any state has in the Senate requires ratification by all fify states.
(A footnote: The above assumes that within the meaning of Article V, a state’s "consent" to being deprived of equality in the Senate requires the state to ratify the Wyoming amendment. Ratification of the amendment constitutes consent. Arguably, a state could likely also consent in other ways—for example, by passing a bill—without ratifying an amendment that deprives a named sister state of equal representation. Still, absent some such form of valid consent, fifty ratification votes are needed.)
Update: September 24, 2010, 11:40 am Bruce Boyden has a modest proposal to amend the Constitution to abolish the Senate entirely. Textually, that amendment would only require ratification by thirty-eight states because it would leave no state unequal to any other. Posted
by Jason Mazzone [link]