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

MinnPost illustration by Jaime Anderson

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 21st 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.

Imperfect Union: The Constitutional roots of the mess we're inOf 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 15th 17th and 19th 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.

Comments (24)

  1. Submitted by Ray Schoch on 12/03/2012 - 05:13 am.

    Blatantly unfair

    I’ve made it a policy, as a a certified old person, not to worry about things over which I have no influence.

    The Constitution is one of those things. Having spent time in both Wyoming and California (There are perfectly good, rational reasons why Wyoming still comes close to matching the official government definition of “frontier,” but it remains one of my favorite places), the outright silliness and blatant unfairness of equal representation in the Senate for each of them is readily apparent. But it’s not something over which I’m likely to have any direct influence – or even indirect influence, for that matter.

    I’d guess a Constitutional Convention to rewrite the entire document for the 21st Century and perhaps the 22nd as well (assuming we do a rewrite every couple of centuries to incorporate social and political changes since the last time) might address the issue, but that’s a circumstance where I turn very conservative. Frankly, in today’s political climate, and with the corrosive and pervasive influence of “people of money” so widely evident, the prospect of a Constitutional Convention is more than a little disturbing. Yes, equal representation for each state may fly in the face of “one person, one vote” as it’s applied in other circumstances, but as even Eric says in the piece, we have no realistic possibility of updating the Constitution to better align it with our current view of what constitutes democracy. Ergo, my first sentence…

  2. Submitted by Peder DeFor on 12/03/2012 - 08:37 am.

    Articles of Condefderation

    Ok, we’ve heard again and again that righties should prefer the Articles of Confederation because of it’s minimalist features. But they don’t. Righties prefer the Constitution and are not really quiet about it. Until there is some actual large segment on the right that calls for a return to the Articles, can you please drop this silly point?
    If anyone is unconvinced about what I’m saying, actually read the Articles. They’re shockingly short. Compare them to the budget proposals put out by Republicans over the last twenty years and ask yourself if they match up. Spoiler alert: they don’t. This attempt to cast small government advocates as anarchists is unfair and does a great disservice to the actual arguments that are being put forth.

    • Submitted by Paul Brandon on 12/03/2012 - 09:45 am.

      You’re right

      Small government Republicans are not anarchists,
      but no one ever said they were.
      The Norquist pledge (none of its signers have actually repudiated it)
      IS a return to SOME of the basic principles of the Articles.
      No one has claimed more than this; certainly not on this blog.

      • Submitted by Peder DeFor on 12/03/2012 - 03:45 pm.

        Which basic principles

        Paul, which basic principles are you talking about? Please cite an article. The Norquist pledge is an attempt to keep taxes where they are. The idea is that we should be able to fund our government on the more than two trillion dollars that is already collected. The Articles have nothing to do with that.

    • Submitted by Greg Kapphahn on 12/03/2012 - 09:55 am.

      How Easy it Is to Hold a Rigid View

      When you never consider the unintended consequences of carrying out the things in which you claim to believe,…

      and ignore human nature and the way we humans become the monkey wrench in the gears of any system we ever create.

      If you espouse ideas that would, inevitably, result in the equivalent of frontier-style libertarianism (the one with the biggest guns and/or the most money rules the neighborhood/city/state/nation) i.e. which would, for most people result in anarchy,…

      then you believe in anarchy, no matter in what pretty dresses and lipstick or fancy suits with shiny shoes you might like to dress it.

      If you believe in an essentially non-existent federal government (except for national defense) and that “state’s rights” should hold sway over federal power, then you believe in already-proven-not-to-work Articles of Confederation (or in the EXACT SAME principles on which they were based, which amounts to the same thing), no matter how desperately you try to convince yourself that you don’t.

      • Submitted by Peder DeFor on 12/03/2012 - 03:54 pm.

        Frontier Style Libertarianism

        The only way that you can look at the modern GOP and see ‘frontier style libertarianism’ is with the assistance of delusion. It would be like looking at the complete refusal from Dems to try and reform entitlements and decide that they are the functional equivalent of Soviet Russia. If you squint, you can see that the arrow points vaguely in the same direction but the distance between the two is so far apart as to be absurd.
        And who do you know of who believes in “an essentially non-existent federal government”? Certainly not any of the Constitution lovin’ righties. The Tea Party is probably the most aggressive large small government movement of my life. They couldn’t love the Constitution more. You know, the document that replaced the Articles. This isn’t a difficult point to understand.

  3. Submitted by Paul Udstrand on 12/03/2012 - 10:07 am.

    Peder misses the point

    The “Small Government” fantasy isn’t organized around changing the constitution, or reverting back the A of C. The “Small Government” fantasy is always presented as a reversion back to the original meaning of the constitution, therefore it’s the interpretation not the document itself that becomes the issue. On the other hand there’s no denying that people who are literally talking about secession are NOT reverting back to a extreme version of states rights ideology. At any rate, the objective is a Libertarian fantasy pretends you can dismantle the government without dismantling the constitution. This has some similarities to Anarchism but completely different in most respects.

  4. Submitted by Lance Groth on 12/03/2012 - 11:00 am.

    A Federation of Sovereign States

    Mr. Cross has it right. The two senators per state arrangement is there to give some teeth to the notion that the United States is a voluntary federation of sovereign states. The one man, one vote argument is specious with regard to the Senate – it completely misses the point. I don’t think anyone wants the U.S. government to be the government of a handful of large states, with the rest just along for the ride. I find the structure of the Senate to be entirely appropriate, and would not wish to see it changed.

    Now Senate rules are another thing, and I hope the Dems are successful in revising the filibuster rule.

  5. Submitted by Joyce Denn on 12/03/2012 - 11:51 am.

    Being a grammar cop (with apologies)

    I hate to be the grammar cop, but I’m the daughter of an English teacher and the mother of an English major so I cannot help myself; the phrase “all of my irreverence toward the Constitution should not detract from appreciating the enormity of their accomplishment” is hurting my senses like the sound of nails on a chalkboard. Enormity does not denote size, it means outrageous, heinous, vicious, horrible, wicked, beyond moral bounds; I rather suspect that is not what Mr. Black meant to say.
    Okay, I’ve had my say.

  6. Submitted by Rich Crose on 12/03/2012 - 01:03 pm.

    100 States Plan

    Why can’t states just divide themselves into several states with smaller populations just to get more representation at the Federal Level?

    For example, Northern California, Southern California, East New York and West New York, South Texas, West Texas and Northern Texas, East Ohio and West Ohio, Minnesota and Other Minnesota. They get two senators and two more votes in the senate.

    We could have a Senator Klobuchar AND Senator Bills. Senator Franken AND Senator Coleman. Governor Dayton AND a Governor Emmer.

  7. Submitted by Ray Schoch on 12/03/2012 - 02:28 pm.

    Careful what you wish for

    Texas – alone, as far as I know – among the several states cited by Rich Crose – DOES have the ability, by the terms of its admission to the union, to subdivide itself into as many as 5 different and separate states, which would give the current land area of Texas 10 senators instead of its current 2. Personally, that possibility makes me shudder, but perhaps other readers are more sanguine about the consequences.

  8. Submitted by Donald Larsson on 12/03/2012 - 04:43 pm.

    Senates and Senators

    A couple of thoughts:
    1. Eric cites the 1964 Reynolds v. Sims case that required the states to adopt one-person-one-vote representation in both houses. Justice Harlan was the lone dissenter, arguing that the logic of the majority would also require overturning Article V of the US Constitution, which Eric points out is impossible. Had Harlan actually understood that special exemption from amendment? The Wikipedia link that Eric gave to Reynolds v. Sims does point to a number of states where a lone district (township, county, etc.) had outrageously disproportionate representation at the state legislature. (I remember hearing, though not really understanding, the squabbles about the decision in Connecticut, one of the offending states, where I grew up.)
    2. It could be worse–we could still have state legislatures appointing the Senators, which was the case until the 17th Amendment, providing for direct election of Senators, was ratified in 1913.

    • Submitted by David Greene on 12/05/2012 - 01:17 pm.

      Senate Elections

      > It could be worse–we could still have state legislatures appointing the Senators

      That’s not necessarily a bad thing. I believe the original idea was to give state legislatures some say in how federal affairs are conducted. That could be quite useful today as we grapple with unfunded mandates and geographically unbalanced appropriations.

  9. Submitted by Stan Hooper on 12/03/2012 - 09:09 pm.

    The No Amendment Part of the Constitution

    I don’t know why this is such a problem. My old (really old now: in fact, deceased) American History teacher told us (then tested us) that the great compromise between states rights and one man, one vote was why the bicameral Congress was created. One man, one vote was what the House was for; one state, 2 votes was what the Senate was for. It solved that dilemma, until Eric came along. I know Eric doesn’t like bicameral, though. In concept, should another Continental Congress convene for the purpose of rewriting a constitution to settle for a single body, the Senate would likely be rent asunder in order to preserve one man, one vote. By the way, isn’t a Continental Congress the way to amend that no-amendment part of the existing Constitution? Isn’t it the ONLY way to make that amendment?

  10. Submitted by Amy Wilde on 12/03/2012 - 09:40 pm.

    Senate representation

    A similar compromise is alive & well within the bylaws of a number of “joint powers” boards within Minnesota. These include special education boards formed by independent school districts, the regional library boards, watershed districts, and a number of other entities. I have sat on several of these boards & they operate remarkably well. A few make some attempt to equalize population, by awarding an extra representative based on population exceeding a certain amount, but most retain equal representation from each one of the governing entities.
    Although it may seem “unfair” in terms of population for geographically large, but thinly populated states to have so much control in the Senate, another way to look at this is that many of the thinly populated states are rich in resources, such as oil, timber, grazing land, mining, etc. Management of these resources is exceedingly important for all citizens. As a former elected official from a rural area, I can attest that the task of getting around my district & addressing the many resource-related issues (water runoff, gravel mining, feedlots, maintenance of many miles of roads, shorelands, etc.) was a BIG part of my job and one with which officials from more densely populated areas did not need to cope. Trees, drainage ditches, rocks & cows may not vote, but senators from Wyoming, Montana & Alaska spend a LOT of time dealing with their non-human constituents. So do congressmen–and they are usually out-voted by colleagues who know little about resource management.

  11. Submitted by Eric Black on 12/04/2012 - 01:45 am.

    My apology

    I very much enjoyed the discussion above, but I do want to nod some agreement to Peder Defor, who does the mostly liberal crowd in these parts a great service by offering always-reasonable, always-civil conservative perspectives. Peder doesn’t advocate for the kind of conservatism that would recreate the Articles of Confederation, and I feel a little abashed at having suggested more than once that righties secretly desire a return to a national government that had neither taxing power nor power to regulate interstate commerce.

    There are conservatives about whom it is easier to take that leap, but pretty much none that explicitly advocate it. My aspiration to civility and substance requires me to apologize to anyone who felt disparaged by my sloppy exaggeration.

  12. Submitted by Eric Paul Jacobsen on 12/05/2012 - 12:04 am.

    So we can’t change the Senate constitutionally.

    How about this, then: Amend the Constitution to require that every state must have approximately the same number of people as every other. Gerrymander the state boundaries to comply.

    All right, I’ll admit that that wasn’t a serious proposal.

    I suppose we won’t get a better Senate without a new constitutional convention, and that’s the last thing we’ll ever get around to forming. Instead, let’s try this:

    First, enact campaign-finance reform. Second, make elections as proportional as possible. Third, maybe we can weaken the Senate, if we can’t reform it by constitutional means.

    But in the meantime, we need to state very clearly what’s right and what’s wrong. Denying equal rights to people in order to preserve equal rights for arbitrarily defined pieces of land is wrong, wrong, wrong. There is no justification for it, except from the standpoint of one who adamantly opposes the idea of equal rights for people – because undermining this principle is the only thing that the constitutionally mandated equality of states accomplishes.

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