The Volokh Conspiracy

Article V of the U.S. Constitution provides:

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.

I have a question about the provisions at the end, such as "Provided that no Amendment... that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Could an Amendment be adopted by the standard amendment process (2/3 of both Houses pluses 3/4 of states) that amended this final clause providing that no state shall be deprived of its equal Suffrage without its consent? So, for instance, could Article V be amended to allow deprivation of a state's equal suffrage such as by majority vote?

It is not obvious to me either way. My initial intuition was that the 2/3 clause was the general rule that could be invoked to modify the "equal suffrage" clause as a subordinate rule. But then as I thought further, it seemed to me that they are simply two co-equal provisions and that neither takes precedence over the other. If the latter, then presumably the only way to get rid of equal suffrage withouth the deprived state's consent would by revolution (presumably followed by a new constitutional convention). Although it is not obvious to me why the general provisions of Article V would not apply to this particular provision.

	[Todd Zywicki, February 12, 2008 at 3:10pm] Trackbacks Article V: Article V of the U.S. Constitution provides: 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. I have a question about the provisions at the end, such as "Provided that no Amendment... that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Could an Amendment be adopted by the standard amendment process (2/3 of both Houses pluses 3/4 of states) that amended this final clause providing that no state shall be deprived of its equal Suffrage without its consent? So, for instance, could Article V be amended to allow deprivation of a state's equal suffrage such as by majority vote? It is not obvious to me either way. My initial intuition was that the 2/3 clause was the general rule that could be invoked to modify the "equal suffrage" clause as a subordinate rule. But then as I thought further, it seemed to me that they are simply two co-equal provisions and that neither takes precedence over the other. If the latter, then presumably the only way to get rid of equal suffrage withouth the deprived state's consent would by revolution (presumably followed by a new constitutional convention). Although it is not obvious to me why the general provisions of Article V would not apply to this particular provision.