Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, 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; 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; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The last two sentences of Article V made certain subjects unamendable.1 The first of these sentences prohibited amendments prior to 1808 that would have affected either of two subjects addressed in Article I, Section 9 of the Constitution: (1) limitations on Congress’s power to prohibit or restrict the importation of slaves before 1808; and (2) limitations on Congress’s power to enact an unapportioned direct tax.2 As noted, during the convention in Philadelphia, some delegates from the southern states opposed allowing amendments to provisions of the Constitution that limited Congress’s power to restrict or tax the slave trade.3 To mitigate these concerns, the delegates added a sentence prohibiting amendments on these subjects before 1808.4 This sentence’s restrictions on amendments have expired.

The second sentence of Article V, which remains in effect, provides “that no State, without its Consent, shall be deprived of its equal suffrage in the Senate.” 5 This provision was introduced by Roger Sherman, one of the architects of the Connecticut Compromise, out of concern that three-quarters of the States might use Article V to abolish or deprive smaller states of their representation in the Senate.6 Writing in the Federalist Papers after the Federal Convention, James Madison suggested that this exception would assuage concerns that large states would use the amendment process to infringe upon the sovereignty of the smaller states by reducing their voting power in the Senate.7 He wrote, “The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality.” 8

By expressly prohibiting amendments that would deprive a state of equal suffrage in the Senate without its consent, Article V enshrines the “partly federal, and partly national” structure of the bicameral Congress, which was at the heart of the Connecticut Compromise.9 In vesting the legislative power in a bicameral Congress, the Framers of the Constitution purposefully divided and dispersed legislative power between two Chambers—the House of Representatives with representation based on a state’s population and the Senate with equal state representation.10 The Framers recognized that the division of legislative power between two distinct Chambers of elected members was needed “to protect liberty” and address the states’ fear of an imbalance of power in Congress.11 As later explained by Chief Justice Warren Burger, “the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states.” 12 By diffusing legislative power between two Chambers of Congress, including a Senate in which the states had equal suffrage, the Framers of the Constitution also sought to promote the separation of powers, federalism, and individual rights.13 They designed the bicameral Congress so that “legislative power would be exercised only after opportunity for full study and debate in separate settings.” 14

Controversial since its inception because it protects small state interests against those of larger states, Article V’s prohibition on amending the Constitution so as to deprive states of equal suffrage has been a subject of scholarly interest. In discussions on whether the Article V prohibition should be given full legal force,15 some commentators have noted that the Constitution’s text and the Framers’ intent require the provision to have legal effect.16 Commentators have also argued that the people of the United States have accepted other limitations on the amending power (e.g., the high vote threshold for proposal and ratification of amendments).17 Thus, in their view, it is unclear why the limitation on depriving states of equal suffrage in the Senate should not also have legal effect.18

Academic debates over the legal force of Article V’s clause on unamendable subjects echo broader discussions of other possible external, textual, or implicit limitations on the amendment of the Constitution.19 For example, scholars have debated whether it is possible to amend those provisions of the Nation’s charter that embody fundamental norms or characteristics of the U.S. Government (e.g., provisions that establish a republican form of government).20 Other debates have focused on whether Article V’s procedures for amendment can themselves be amended.21 Such debates, many of which have been part of the national conversation since the Founding,22 raise critical questions about how the Nation may alter its fundamental law.

Footnotes

1

U.S. Const. art. V ( “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; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” ).

2

Id.

3

2 The Records of the Federal Convention of 1787, at 559 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Madison’s notes, Sept. 10, 1787). The latter provision was apparently motivated in part by concerns over federal taxes on slaves, who were considered property at the time. The Federalist No. 43 (James Madison) (stating that both exceptions in the first sentence on unamendable subjects “must have been admitted on the same considerations which produced the privilege defended by it” ). See also Hylton v. United States, 3 U.S. (3 Dall.) 171, 177 (1796) (Paterson, J., concurring) (recounting debates over these limitations on amendments).

4

2 Farrand’s Records, supra note 3, at 559 (Madison’s notes, Sept. 10, 1787).

5

2 Farrand’s Records, supra note 3, at 559. The Supreme Court has indicated that the equal suffrage provision does not prohibit Congress from refusing to seat a Senator while it investigates his election or qualifications. Barry v. United States, 279 U.S. 597, 615–16 (1929).

6

2 Farrand’s Records, supra note 3, at 629 (Madison’s notes, Sept. 15, 1787) ( “Mr. Sherman 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.” ). Sherman’s proposal also would have prohibited amendments that affected a state “in its internal police.” 2 Farrand’s Records, supra note 3, at 629. After Sherman’s amendment to the draft Article V was voted down, he moved to strike Article V altogether. 2 Farrand’s Records, supra note 3, at 630. Gouverneur Morris proposed the final provision, which lacked the language that Madison had opposed limiting amendments that would affect a state in its “internal police.” 2 Farrand’s Records, supra note 3, at 631. The motion “being dictated by the circulating murmurs of the small States was agreed to without debate.” 2 Farrand’s Records, supra note 3, at 630–31.

7

The Federalist No. 43 (James Madison).

8

Id. During the Federal Convention, Madison had argued against equality of suffrage for the states in the Senate—an unpopular notion in the larger states. See, e.g., 1 Farrand’s Records, supra note 3, at 551 (Madison’s notes, July 7, 1787) (statement of James Madison).

9

See INS v. Chadha, 462 U.S. 919, 950 (1983). Roger Sherman and other delegates from Connecticut repeatedly advanced a legislative structure early in the Convention debates that eventually was proposed as the Great Compromise. See 1 Farrand’s Records, supra note 3, at 196. Historians often credit Sherman and the Connecticut delegates as the architects of the Great Compromise. Mark David Hall, Roger Sherman and the Creation of the American Republic 96–98 (2013) (discussing Sherman’s proposal during the Convention debates that led to the “Connecticut Compromise” ); Max Farrand, The Framing of the Constitution of the United States 106 (1913). See also Wesberry v. Sanders, 376 U.S. 1, 12–13 (1964) (discussing Sherman’s role in the Connecticut Compromise).

10

U.S. Const. art. I, § 7. cl. 2. See The Federalist No. 39 (James Madison) ( “The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the Government is national not federal. The Senate on the other hand will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national.” ).

11

See INS v. Chadha, 462 U.S. 919, 950 (1983) ( “[T]he Framers were. . .concerned, although not of one mind, over the apprehensions of the smaller states. Those states feared a commonality of interest among the larger states would work to their disadvantage; representatives of the larger states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority of the people.” See also The Federalist No. 51 (James Madison) ( “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” ); Farrand, The Framing of the Constitution of the United States, supra note 9, at 99–112 (describing the debate among the states regarding the structure of Congress).

12

Chadha, 462 U.S. at 950 (1983). See also Farrand, The Framing of the Constitution of the United States, supra note 9, at 105–06 (explaining the structure of Congress as achieved under the “Great Compromise” ).

13

See The Federalist No. 62 (James Madison) ( “[A] senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.” ). See also John F. Manning, Textualism as a Nondelegation Doctrine, 97 Columbia L. Rev. 673, 708–09 (1997) (describing how the legislative procedures “promote caution and deliberation; by mandating that each piece of legislation clear an intricate process involving distinct constitutional actors, bicameralism and presentment reduce the incidence of hasty and ill-considered legislation” ).

14

Chadha, 462 U.S. at 951.

15

See generally, e.g., Douglas Linder, What in the Constitution Cannot Be Amended?, 23 Ariz. L. Rev. 717, 717 (1981).

16

Id. at 733.

17

John R. Vile, Limitations on the Constitutional Amending Process, 2 Const. Comment. 373, 379 (1985).

18

Id. ( “It is unclear why the United States should be bound by one such restraint, the super-majorities required for most amendments, and not another, the unanimous state consent required for altering a state’s equal suffrage in the Senate.” ). Commentators who oppose the disproportionate influence of less populated states in the Senate and electoral college have argued that the Article V prohibition should not have full legal force. These arguments, however, are not reconcilable with Article V’s express language or the intent of the Framers in adopting it. For instance, some scholars have argued that the provision is “merely declaratory” by reasoning that sovereignty resides in the people of the United States, and past actors cannot bind “the will of the people” in the future. See Linder, supra note 15, at 722–23. Article V, however, provides that a state’s body politic may consent to no longer having equal suffrage, but the “will of the people” as expressed by the political entities whose agreement is necessary to amend the Constitution cannot deprive an unconsenting state of equal suffrage. Scholars have also debated whether the equal suffrage requirement could be removed in two steps by: (1) amending the Constitution to repeal the limitation; and (2) amending the document to alter equal suffrage. See generally George Mader, Binding Authority: Unamendability in the United States Constitution—A Textual and Historical Analysis, 99 Marq. L. Rev. 841, 852–53 (2016); Richard Albert, Amending Constitutional Amendment Rules, 13 Int’l J. Const. L. 655, 663 (2015). A two-step process to such an end, however, would still violate Article V’s plain language providing that a state cannot be deprived of equal suffrage without its consent.

19

Mader, supra note 18, at 845–46 (surveying relevant scholarship).

20

See Mader, supra note 18, at 845–46.

21

Mader, supra note 18, at 848 ( “It is generally accepted that constitutional amending provisions can be used to amend themselves.” ). But see Linder, supra note 15, at 733 ( “Article five itself cannot be amended so as to create any new limitations on the amending power.” ).

22

President George Washington, First Inaugural Address (Apr. 30, 1789).