What’s a Little Article V Among Friends?

 .  . . and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. – Article V, U.S. Constitution

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. – 17th Amendment of the U.S. Constitution

Even a curmudgeon like me will concede that not all debates over constitutional meaning are crystal clear. Interpreting original meaning (or intent, if you prefer) can be difficult. Trying to determine whether the freedom of speech clause of the first amendment really applies to political donations, or whether the first amendment even applies to the federal government at all, is not necessarily black and white.

But then there are certain clauses which are really not open to interpretation. There’s no creative way to argue that a 31-year old man born and naturalized in France is eligible for the presidency. Similarly, the equal composition of the Senate is laid out in black and white throughout the constitutional text. More importantly, this is one element of the constitution that cannot simply be amended by the traditional process. As laid out in Article V of the U.S. Constitution, no state can be deprived of equal suffrage in the Senate without its consent. This means that for all practical purposes equal suffrage in the Senate cannot be altered unless every single state assents to this change, which really means that equal suffrage in the Senate cannot be altered. This would seem pretty straightforward.

Not if you’re a writer for the Atlantic with a day job teaching Legal Studies at Business Ethics at Wharton, because Eric Orts has a proposition for you: we’ll just legislate this pesky hindrance away. No, seriously:

There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how.

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.

So how do you get out of the clear constitutional prohibition against this change? Legislation, of course:

First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.

Second, the states, through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.

Note that even states that did not ratify the voting-rights amendments have, functionally, consented to them, and thus also to the constitutional logic supporting a Senate Reform Act. As Justice Clarence Thomas explained in 1995, “The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify.”

There are so many logical problems with this that you can drive a truck through them, and fortunately Charles Cooke has done the job natural-born Americans won’t do:

Never in the history of the English language has the word “arguably” done as much work to support the sentences around it. And never, ever has it been so cruelly exposed to ridicule. On Orts’s rationale, Congress could amend any part of the Constitution by legislation. Want to abolish the First Amendment? Just pass the repeal through Congress on a simple majority vote. Easy! That the various branches of government are formed by the Constitution itself — and, by extension, that they cannot amend their own structure without that Constitution being amended — is the most elementary rule in all of American law. It cannot be undone by wishful thinking. Indeed, if anything, the Senate’s structure is the most permanent variable in the entire U.S. Constitution, given that it not only enjoys the same protection as everything else, but has an extra layer on top that ensures that any alteration be made with the consent of those directly affected. For Orts to treat the most heavily guarded item within the document as if it were the most easily circumvented is nothing less than extraordinary, and suggests to me that he believes his audience is stupid.

As to point two:

Even for those of us who are accustomed to learning in awe about the many innovative policies the architects of the Reconstruction Amendments intended secretly to mandate in the future, this one is a doozy. Insofar as it can be followed, Orts’s case here is that (a) the Constitution protects equal voting rights, (b) that, in his view, the Senate does not protect equal voting rights, so (c) the Constitution mandates that the Senate be altered — presumably via the “arguable” legislative method outlined above. Historically, legally, and linguistically, this approach is bizarre: If the framers of the “Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth” amendments had wanted to abolish or amend the Senate, they would have done so — or, rather, they wouldn’t have done so, because their amendments would have failed spectacularly at the first hurdle. Worse still, it is extremely dangerous, for if Orts’s approach were to be indulged, we would quickly move so far beyond both the security of both stare decisis and plain language as to invite endless, untrammeled chaos. Why? Well, because one can play his game with anything. First, you find a part of the Constitution that guarantees a favored end — say, “establish justice,” “promote general welfare,” or guarantee “freedom of the press”; then you contend that this end is incompatible with any other provision you happen not to like; and, finally, you explain that the provision you dislike is itself unconstitutional. At best, this method represents cheap sophistry. At worst, it represents anarchy. Again: “Our Constitution is more malleable than many imagine” is a euphemism for “We must ignore the law as it is written.”

Now take it home Charles:

But we must not, of course. Rather, we must ignore Orts, and we must push back against people who believe their job is to rewrite history and to misinform on a grand scale. I can see why certain professors feel the need to do this: Absurd as his cases always are, my proverbial Grunton Rabitini of Soiled Woods College has his words repeated widely by the unprincipled and the uninformed. But I cannot see why The Atlantic needs to publish it. We have a civics problem already in this country. Professor Orts and his editors just made it that little bit worse.

Unbelievably, Orts tried to fight back on Twitter, spending most of the time (incorrectly) complaining that Cooke failed to substantively address any of his points, relying instead on personal attacks, even as Orts accuses Cooke of taking his position because of “white privilege.” Even by the usual dumb standards of Twitter it was pretty horrific.

It’s sad to recall that Orts is an actual professor who teaches college students, because his understanding of constitutional law couldn’t be much dimmer than his average student.

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