Amending the Constitution

Keith E. Whittington kewhitt at PRINCETON.EDU
Wed Jan 19 09:28:40 PST 2000

In relation to Mark's most recent post, I'm not sure what is added by pointing out that Article V conventions cannot amend the Senate apportionment any more than the congressionally drafted amendments could do so.  Surely, that is not itself surprising.

It seems to me that there are two ways to change the apportionment rule within the existing forms of law.  The Article V reservation allows changes to a state's representation in the Senate only with that state's consent.  This would seem to suggest that Senate apportionment could be changed through two Article V means -- a) an Article V amendment that was ratified by every state, and not just the usual 3/4ths, and b) an Article V amendment could reduce the representation of those states who had ratified the amendment (until unanimity) but could not increase their representation (that is, the non-ratifying states are entitled to representation
equal to the maximum given to any other state until they have individually consented to less).  Given the transitional problems involved, it is hard to imagine states agreeing to the second scheme, but I guess they could.

More generally, I think Mark's right that altering Senate apportionment would be a revolutionary change in the constitutional scheme, regardless of how it is accomplished.  The revolution could be accomplished through an "Article V amendment," a new constitutional convention (perhaps initially organized under Article V), normal political institutions (as with the New Deal and Lincoln's division of Virginia without its consent), or some other new mechanism (such as a referendum).  As Sandy has argued, sufficient political support could confer legitimacy on such actions, regardless of the procedures used to initiate them.  But, I'd prefer that such
revolutionary actions be as explicit and visible as possible -- in order to encourage the deliberation appropriate to such a question (let's not pretend that we just found a clever dodge to the Article V reservation), to circumvent entanglements with existing procedural guardians (do we really want the Court ruling on the constitutionality of Mark's hypothetical amendments?), and to discourage the normalization of revolutionary constitutional change (ala Ackerman).

Keith Whittington
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