Prohibition on Amendment—Equal Suffrage of the States

. . . no State, without its consent, shall be deprived of its equal Suffrage in the Senate.

—Robert G. Natelson

Introduction

Article V imposes two categories of limitations on constitutional amendments. First, there are limits on Congress’s powers over migration, importation, and apportionment. (See Essay No. 151.) Second (and the subject of this essay), an amendment to the Constitution cannot “deprive” a state “of its equal Suffrage in the Senate” without the state’s consent. This exception is not quite as broad as it might appear. The language does not prevent an amendment that expands or reduces the number of Senators from each state as long as the size of each state’s Senatorial delegation remains the same. Every state could have one, three, or ten Senators. Moreover, in the unlikely event that lower-population states consented, an amendment could allocate a different number of Senators to states based on population or other factors.

The Constitutional Convention and Ratification

The Confederation Congress met on the principle of sovereign equality: “[E]ach state shall have one vote.”¹ The “Great Compromise” in the Constitutional Convention of 1787 apportioned the House of Representatives approximately by population but retained state equality in the Senate: Each state would have two Senators, although they would vote individually rather than by state.²

The Great Compromise sometimes is called the Connecticut Compromise because the three Connecticut delegates—Roger Sherman, Oliver Ellsworth, and William Samuel Johnson—were instrumental in brokering it.³ On September 15, after the delegates had already agreed to the Article V amendment process, Sherman perceived a potential danger and “expressed his fears that three fourths of the States might be brought to do things fatal to particular States as abolishing them altogether or depriving them of their equality in the Senate.”⁴ Sherman “thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.”⁵ Here, “internal police” referred principally to a state’s ability to regulate activities with minimal impact on other states.

James Madison of Virginia responded that if the Convention adopted “these special provisos, . . . every State will insist on them, for their boundaries, exports & c.”⁶ In other words, inserting protections for parochial state interests into the draft constitution would encourage more demands of the same kind. Sherman’s motion was defeated by a vote of eight to three. Sherman then moved to strike Article V “altogether.” This motion failed, receiving only two “aye” votes. Gouverneur Morris of Pennsylvania proposed an alternative text: “that no State, without its consent shall be deprived of its equal suffrage in the Senate.” “This motion,” Madison wrote, “being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no.”⁷

During the ratification debates, this limitation on the amendment power received no special attention beyond the wider question of the composition of the Senate.

Other Limitations on Amendments

Article V provides that Congress may “propose Amendments to this Constitution.” This text implies a ban on proposing or ratifying a “complete substitute.” In other words, Article V cannot be employed to adopt an entirely new Constitution.

Some have argued that some kinds of constitutional changes—beyond those expressly prohibited by Article V—are too profound to be the subject of amendment. For example, Leser v. Garnett (1922) presented a challenge to the validity of the Nineteenth Amendment, which Maryland had declined to ratify.⁸ The plaintiffs argued that the “character” of the amendment represented “so great an addition to the electorate” that “if made without the state’s consent, [would] destroy [Maryland’s] autonomy as a political body.”⁹ The U.S. Supreme Court, in a decision written by Justice Louis Brandeis, rejected this claim based on historical practice. The Court observed that the Nineteenth Amendment “is in character and phraseology precisely similar to the Fifteenth” and that both amendments were adopted by “the same method,” which meant that “[o]ne cannot be valid and the other invalid.”¹⁰ In addition, “That the Fifteenth [Amendment] is valid, although rejected by six states, including Maryland, has been recognized and acted on for half a century.”¹¹

There is another response to the claim that changes unmentioned in Article V can be too fundamental to be the subject of amendment. It is a textual response and does not depend on prior practice or similar precedents. During the Founding era, as today, a widely repeated rule of documentary interpretation was that the enumeration of certain items implies that items not on the list are excluded. During the Founding era, the rule usually was stated as Designatio unius est exclusio alterius (the designation of one thing implies the exclusion of others).¹² Today, it usually is stated as Expressio unius est exclusio alterius (the expression of one thing implies the exclusion of others).¹³ The same principle holds when the items listed are exceptions to the general rule: “Exceptions strengthen the force of the law in cases not excepted, so enumerations weaken it in cases not enumerated.”¹⁴ Thus, the fact that Article V enumerates several prohibited amendments strongly suggests that there are no other exceptions—that all amendments not listed as prohibited are permitted.

Amendments Outside of Article V

Some scholars have argued that constitutional amendments can be adopted legally by procedures outside of Article V. One contention is that Article V limits only government, so the people can propose and ratify amendments themselves.¹⁵ A second contention posits that “constitutional moments” can effectively amend the Constitution through politics and judicial acquiescence.¹⁶ The 1936 federal election, followed by Supreme Court decisions sustaining ensuing legislation, is said to have been such a “constitutional moment.”

The first contention is based on a faulty premise. Article V is not a governmental process: Assemblies operating under Article V—legislatures and conventions—function as independent assemblies representing the people, not as government institutions. United States v. Sprague (1931) observed that under Article V, “Congress must function as the delegated agent of the people in the choice of the method of ratification.”¹⁷ That process binds not only the government, but the people as well. Thus, Dodge v. Woolsey (1855) stated that by adopting the Constitution, the people “have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them.”¹⁸

The “constitutional moment” claim fails to consider major differences between candidate elections and the process of constitutional amendment. Endorsement of a successful candidate’s platform in a single election, even if that platform is rubber-stamped by jurists, is not the same as real constitutional change. Voters in candidate elections register their choices in short, heated campaigns involving numerous bundled short-term issues. Ratification of constitutional amendments is a decision involving only one or a few long-term issues, unbundled from others, and taking place over an extended period of time.

Moreover, the hypothesis that the Constitution can be amended outside of Article V clashes sharply with the document’s text. Article V enumerates four separate methods of amending: (i) congressional proposal followed by state legislative ratification; (ii) convention proposal followed by state legislative ratification; (iii) congressional proposal followed by state convention ratification; and (iv) convention proposal followed by state convention ratification. This precise enumeration implies that the enumerated items are exclusive. Finally, Article V’s enumerations of restrictions on the amendment process cannot be presumed to be nugatory, which they might well be if alternative methods of amendment were available.

Open Questions

• How would a state “consent” to have its suffrage reduced in the Senate? Could consent be provided by the state legislature or a state convention acting alone? (State legislatures and conventions are the assemblies that can perform the “federal function” of ratifying an amendment.) Would adoption of a statute through the normal legislative process be sufficient? Would consent require alteration of the state’s constitution?
• States have rescinded proposed constitutional amendments. Could a state rescind its consent to have its suffrage reduced, or is a consenting state forever bound by that decision?
• Could an amendment transfer senatorial powers to the House of Representatives or to another entity? For example, the British have shifted power from the House of Lords to the Supreme Court of the United Kingdom. Could an amendment simply abolish the Senate?

1. Articles of Confederation, art. V, § 4. ↩︎
2. 2 Farrand’s 19–20. ↩︎
3. Clinton Rossiter, 1787: The Grand Convention 186, 191 (1966). ↩︎
4. 2 Farrand’s 629. ↩︎
5. Id. ↩︎
6. Id. at 630–31. ↩︎
7. Id. at 631. ↩︎
8. 258 U.S. 130 (1922). ↩︎
9. 258 U.S. at 136. ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. Thomas Branch, Principia Legis et Aequitatis 19 (1753). ↩︎
13. Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). ↩︎
14. State ex rel. Chandler v. Main, 16 Wis. 398, 406 (1863); Schwartz v. Rhoades, 6 Pa. C.C. 385, 386 (1889); Anonymous (“A Gentleman of the Middle Temple”), The Grounds and Rudiments of Law and Equity 107 (2d ed., 1751). ↩︎
15. Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043 (1988). ↩︎
16. 2 Bruce Ackerman, We the People: Transformations (1998). ↩︎
17. 282 U.S. 716, 733 (1931). ↩︎
18. 59 U.S. 331, 348 (1855). ↩︎