Prohibition on Amendment: Equal Suffrage in the Senate
...no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article V specifies the means by which the Constitution can be amended. It ends by forbidding amendments that would repeal the language in Article I, Section 9, which prohibits a ban on the importation of slaves prior to 1808, or the language in Article I, Section 3, which provides for equal representation of the states in the Senate. These are the only textually entrenched provisions of the Constitution. The first prohibition was absolute but of limited duration—it was to be in force for only twenty years; the second was less absolute— “no state, without its consent, shall be deprived of its equal Suffrage in the Senate”—but permanent.
The first unamendable provision of the Constitution was part of what Frederick Douglass called the “scaffolding” necessary for the construction and adoption of the Constitution’s “magnificent structure, to be removed as soon as the building was completed.” The second unamendable provision shows how seriously the smaller states were committed to protecting the “original federal design.” Its sponsor was Roger Sherman of Connecticut, architect of what is often called the Connecticut Compromise or “the Great Compromise,” whereby states were to be represented proportionally in the House and equally in the Senate. Two days before the convention ended, on September 15, 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.” He therefore proposed language barring amending the Constitution to deprive states of their equal suffrage. When his motion failed, Sherman indicated how profoundly concerned he was by proposing the elimination of Article V altogether. This motion also failed, but it prompted Gouverneur Morris to propose the language ultimately adopted by the Constitutional Convention. As James Madison wrote in his notes, “This motion 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.”
The provision does more than protect the equal representation of small states. As Madison noted in The Federalist No. 39, it ensures a polity of mixed sovereignty, one in which the states are an integral part of the federal government. This, of course, is precisely why those who do not think the Constitution “democratic” enough would wish to remove that portion of the Constitution. They argue variously that Article V can be amended through the convention mechanism; or by the people as a whole as stated in the Preamble; or, more brazenly, by first amending out the provision of the Fifth Article, and then requiring the Senate to be apportioned by population. Henry Monaghan points out that such proposals are inconsistent with the vision of the Framers and would undermine the structural plan of the Constitution. That plan is an integrated and dynamic federalism.
As Chief Justice Salmon Chase declared in Texas v. White (1869):
Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
Denying the states their intended role in the federal government by abolishing their equality in the Senate would destroy the grounding of the Union: “without the States in union, there could be no such political body as the United States,” Texas v. White, citing Lane County v. Oregon (1869). Moreover, as the text itself stands, at most the provision could only technically be voided by the unanimous consent of all the states.
This provision has been seldom invoked. Most recently, it has been employed by those opposed to proposed constitutional amendments that would give the District of Columbia full representation in Congress. Their argument is that an amendment that would allow the district—a nonstate—to have two senators would deprive the states of their equal suffrage in the Senate and would therefore require unanimous ratification by all the states. Others have suggested that the provision would void a constitutional amendment requiring a supermajority to pass tax increases.
Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457 (1994)
Lynn A. Baker, New Frontiers of Federalism: Federalism: The Argument from Article V, 13 Ga. St. U. L. Rev. 923 (1997)
Henry P. Monaghan, We the Peoples, Original Understanding, and Constitutional Amendment, 96 Colum. L. Rev. 121 (1996)
Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L.J. 1665 (2002)
John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385 (2003)
Stuart Sierk, Retrenchment on Entrenchment, 71 Geo. Wash. L. Rev. 231 (2003)
Lane County v. Oregon, 74 U.S. (7 Wall.) 71 (1869)
Texas v. White, 74 U.S. (7 Wall.) 700 (1869)