No amendment allowed: A constitutional problem we’re stuck with

One in a series of articles. You can read the whole series here.

Think you know your U.S. Constitution? Here’s a tough trivia question:

What is the only provision of the Constitution that cannot be amended?

It’s not a trick question. Not at all. Very straightforward.

Article V of the U.S. Constitution, which very briefly lays out the (extremely demanding) procedures for amending the Constitution, establishes one constitutional provision that can never be amended.

Many elements of the system the Framers invented were really quite unprecedented, and all of my irreverence toward the Constitution should not detract from appreciating the enormity of their accomplishment. But the Constitution was not just 55 smart and reasonably well-intention guys’ idea of the best way to govern a federation of 13 states in the “New World.” The final draft of the proposed new charter was born of a series of compromises across several axes, including some (all of the ones involving slavery, for starters) that look quite hideous to 21^st Century eyes.

Another important axis that affected the document in lasting ways was the need to satisfy the delegates from the small states that the more powerful national government wouldn’t become a vehicle for the bigger more populous states to gang up on the little ones.

And that, fellow seekers of wisdom and truth, is a hint to the trivia question.

I’m going to guess that if you knew the answer, even before the hint that I just dropped, you probably know a great deal about the Constitution. But I’m also guessing that even among MinnPost’s very smart and well-informed readership, a great many of you can’t answer the trivia question.

So, what is the permanently unamendable provision? (Drum roll here, as we pull back the curtain to reveal the answer): It’s the requirement that each state must have equal representation in the U.S. Senate.

So what? Well, first of all, such a system is at odds with current notions of democracy.

Wyoming equals California

California – with a current population of around 37 million — and Wyoming — with its population around 570,000 – have equal representation in the Senate. That fact certainly deviates from the otherwise constitutionally mandated (according to the U.S. Supreme Court in Reynolds v. Sims and other cases) principle of one-person, one vote.

Just to force the issue with a little math: The combined population of the 21 least populous states is a little less than the 37 million population of California alone. So the 37 million residents of those 21 states are represented by 42 U.S. senators – enough to sustain a filibuster in the Senate and prevent a bill from coming to a vote. Meanwhile, the 37 million Californians (12 percent of the U.S. total) are represented by two senators (2 percent of the Senate total).

Keep adding small states until you get to the 26 smallest. Now you have states that, between them, elect a majority of the Senate. But the total population of that Bizarro World “majority” is about 18 percent of the total U.S. population. In Senate power, that 18 percent outvotes the other 82 percent of strangely lesser persons who control just 48 percent of the voting power of the Senate.

Of course you can overdo this. Californians combined have 53 representatives in the U.S. House. The 21 smallest states have a combined 49 seats. But, of course, they also have a combined population slightly less than California’s.

To clarify, if Minnesota wanted to create a state Senate based on the federal Senate model, by granting, let’s say, one Senate seat to each of Minnesota’s 87 counties, notwithstanding the huge disparity  between Traverse County (population 3,552) and Hennepin County (1.15 million), the U.S. Supreme Court would deem that it violates the one-person one-vote principle.

But the same arrangement on the federal level cannot be unconstitutional, since it is mandated in the Constitution itself. (Article I, Section 3: “the Senate of the United States shall be composed of two Senators from each state.”)

And then, to further reassure the small states that this guarantee could be trusted, the Framers put this into Article V, after laying the onerous requirements for amending the Constitution:

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 two things that couldn’t be amended until 1808 were slavery-related (although the Framers, as they did on all of the many slavery-related references in the Constitution, managed to slip them in there without mentioning the S-word).

But the guarantee of “equal Suffrage in the Senate” can never be amended (although apparently any state, large or small, that just feels like giving up one of its Senate seats can “Consent” to do so).

A group of very distinguished constitutional law scholars collaborated on a book in which each wrote a short essay on the dumbest or most tragic aspect of the Constitution. Two of them, including my old friend Suzanna Sherry (formerly of the University of Minnesota, now of Vanderbilt Law School), took on the one state, two-senators feature. Professor Sherry quoted from two of the landmark one-person, one-vote decisions (as applied to the states of course, not to the U.S. Senate) in which the Supreme Court wrote:

“[T]he conception of political equality from the Declaration of Independence to the Gettysburg Address to the 15^th 17^th and 19^th amendments can mean only one thing – one person, one vote. To hold otherwise would be to allow a vote to be worth more in one district than another” and would “run counter to fundamental ideas of democratic government.”

So, to nail it down, an arrangement that the Supreme Court says is fundamentally contrary to democracy (if done by a state) is simultaneously and unamendably mandatory when done by the national government of the world’s greatest democracy.

Pretty weird, no? But put yourself into the shoes of Constitutional Convention Presiding Officer George Washington, Father of the Constitution James Madison or Alexander Hamilton – all of whom came from large states. This was the price necessary to get a Constitution. (And –notwithstanding bogus righty-talking point about the small-governmentalism of the Framers – it was a Constitution that greatly increased the reach and power of the national government.)

The Articles of Confederation (the much looser and weaker national government that existed from early in the Revolutionary War until it was replaced by Constitution) had a single house of the national legislature in which each state had an equal vote.

(The small-government states-rights types should really like the Articles of Confederation. The national government under the Articles had no power to directly tax citizens. Its members were term-limited. And the Articles required agreement of all states to any amendment. So a single state could have rendered the national government perpetually un-taxing. The Articles also had no separately elected national executive.)

A whole different direction

Madison and the most active, influential framers wanted to go in a whole different direction. Madison drafted and came to Philadelphia with a plan (often referred to as the Virginia Plan) for a legislature of two houses, with representation in both apportioned according to population. (Madison, by the way, hailed from Virginia, which was then the most populous state — if you counted the slaves.)

But of course, unless they wanted to break up the new nation, they couldn’t go forward with a plan that reduced small-state power over the national government so dramatically while simultaneously increasing federal power over all the states. The Delaware delegation (Delaware was then the least populous of the 13 states, with less than 9 percent the population of Virginia) threatened to walk out of the convention unless the small states were provided with more power than they would get under the Virginia Plan.

William Paterson of New Jersey (third least populous of the then-13 states) responded with the “New Jersey Plan,” calling for a legislative branch of one house with each state having one vote (basically that was the existing arrangement under the Articles of Confederation but the New Jersey Plan made other changes in the existing government, including increasing the power to raise revenue and to regulate interstate commerce).

If you know your convention history, you know that the big-state, small-state standoff was broken by Roger Sherman of Connecticut with the “Connecticut Compromise”  — two houses, one based on population, one based on equal representation for large and small states. (Naturally, Connecticut was right in the middle of the 13 states by population.) And the plan summarized in the Connecticut Compromise is what we got and what we still have.

Now, in that historical context, you might be able to construct an argument by which the Connecticut Compromise might have some merit in its own right, although if you do, it’s possible that you will be operating on the basis that it must be right, because the Framers did it. Personally, I’m content to tell the tale to make the point that the Framers were right to make the deal, because without the deal there would have been no Constitution at all. It was a compromise – you know, that thing our current office-holders have recently mostly forgotten how to do.

On the other hand, here we are 225 years later, living with a compromise that made sense then but that has little to do with modern America. And yet we have no realistic possibility of updating the Constitution to align the makeup of the Senate with our somewhat more evolved understanding of democracy.

This one — the equal voting power of all states in the Senate — is even harder to fix than others that have been discussed in the course of this series. At least the other provisions could theoretically (but not practically) be fixed by amendment. But this one has strangely and magically been placed beyond even that remedy. (What if we first amended Article V right out of the Constitution, then amended in a new Article V that allowed us to amend anything in the Constitution? But wait a minute, once we had amended Article V out, how would we amend anything at all? Oh well, even if there was a way around the unamendability of the equality-of-states-in-the-Senate language, why should the small states ever agree to a new formula?)

OK, the undemocratic nature of the Senate is not really the key to understanding what ails our current democracy. There are sometimes votes where it seems to matter a lot. (Professor Sherry mentioned that if Senate voting power was reapportioned to coincide with population, the nominations of Clarence Thomas would not have been confirmed.) For the most part, key votes in Congress don’t break down along the lines of small states versus big states.

In a New York Times op-ed undiplomatically headlined “Our Imbecilic Constitution,” constitutional scholar Sanford Levinson suggested other means of Senate reform that, while crazy on first hearing, would at least be within the range of something that could amended into the Constitution without first having to amend out the bit in Article V.

For example, if you really want to elect a new president who can implement the ideas on which he was elected, you could allow each newly elected president to appoint 50 members of the House and 10 members of the Senate, all to serve four-year terms coterminous with his or her own. While that would alter absurd equality of states in the Senate, it would be a serious blow against gridlock.