On Monday, Sandy Levinson gave a fine Constitution Day lecture before an audience of roughly 150 people on the UNLV campus. Prof. Levinson presented a streamlined, if slightly refined version, of his most recent book: Our Undemocratic Constitution. Many of my students were in attendance and have subsequently wanted to know more about the possibility of altering our constitutional system and the appropriate mechanisms for doing so. In particular, many of my students are quite sympathetic to Levinson's critique of the Senate. (I find their support particularly notable since they reside in a state that would certainly receive less federal monies under a system that based its upper house on proportional representation.) Yet, from a rule of law standpoint, altering the Senate is the most constitutionally troubling of Levinson's proposals.
The last sentence of Article V states, "and that no state, without its consent, shall be deprived of its equal suffrage in the Senate." To decrease the democratic deficit, the Senate would need to be reapportioned in such a way as to reflect population. The first provisions of Article V provides that supermajorities can impose their constitutional will on the rest of the country so reapportioning the Senate would seem possible. However, under my reading of the final sentence of Article V, the Senate is exempted and protected. The language seemingly requires each and every state to consent to a change to the Senate. I find it highly unlikely that North Dakota, Wyoming, and, even, Nevada will consent to losing their equal representation. (The entrenchment provision is likely yet another vestige of the original compromise between free and slave states. Mark Graber's Dred Scott and the Problem of Constitutional Evil is a must read!)
Unanimity clauses are not new in American constitutional history. The Articles of Confederation required all states to consent to amendments (see Article XIII) and the Constitution of 1787 was ratified despite this provision (although they avoided the issue when the Constitution was ultimately ratified by every state). Yet, Levinson seems to be trying to work within the strictures of Article V. Unfortunately, I did not ask Prof. Levinson how reformers get around Article V's entrenchment provision but it strikes me as highly problematic for the effort.
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2 comments:
It seems highly unlikely that we would get beyond the simple requirements of the amendment process. Would it be possible to amend the amendment process? This sort of sounds like the "nuclear option" that Senate Republicans threatened a few years ago. I wouldn't advocate a simple majority, but I would lessen the standard for amendments.
As for entrenchment and its effect on changing the senate, I like the idea of combining both houses into a unicameral body (like Mexico). No state is "deprived," and equal weight is still given to both forms of representation. What do you think?
I think there is much to be said about having a bicameral system for such a large country although it is certainly possible that a unicameral system would function as well (and possibly quite better) than our present one.
However, I still think there is a fundamental problem with altering the Senate given the final clause of Article V. There are similar clauses in the German constitution (guaranteeing federalism and human dignity) and these clauses are widely believed to be entrenched beyond amendment. The U.S. Constitution permits amendments that would alter representation in the Senate but only when each of the States has approved of the change to its representation. To destroy (or collapse) the institution to create a unicameral legislature would require such a change under Article V. Of course, there are options outside of Article V but these are all but inconceivable.
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