It could be strongly urged that the desire of the framers to protect equal suffrage in the Senate from amendment would be frustrated just as surely by an amendment abolishing the Senate as by one allocating to some states more Senate votes than to others. Indeed, although abolition of the Senate would cause all states to suffer an equal deprivation of their suffrage in the Senate, such an action would plainly be incompatible with the language of the article five proviso.
No suffrage at all is not "suffrage," and there is nothing "equal" about denying large and small states alike suffrage in the Senate. Nonetheless, an amendment abolishing the Senate, however unlikely a prospect that may be, should be upheld as valid. The case for affirming the constitutionality of an amendment abolishing the Senate must be based on a holistic theory of constitutional interpretation.
Such a theory would allow one to argue that actions inconsistent with the language of one constitutional provision may nonetheless be constitutional if affirmation of their constitutionality is necessary to effectuate the broad design of the Constitution. Thus, the framers' broad belief, embodied in article five, in the desirability of a constitution flexible enough to accommodate major alterations in the structure of government should be honored because it was "more basic" than the framers' specific belief that the right of states to equal suffrage in the Senate should never be eliminated by amendment.
The equal suffrage proviso of article five was intended to prevent attempts to reduce the political impact of small states; it was not intended to prevent a shift to a new governmental structure when that shift is not motivated by the desires of large states to strengthen their political influence. Had these greater consequences been intended, it is not unreasonable to suppose that the framers would have expressly said so. Similar logic would dictate that constitutional amendments reducing the powers of the Senate under article one e.
The issue need be framed only slightly differently when an amendment has the effect of diluting the voting strength of the states in the Senate. When the constitutional amendment is directed at remedying an evil unrelated to the senatorial voting patterns, as the proposed D. Where, on the other hand, an amendment represents an effort to dilute the influence in the Senate of the smaller states, it should be declared invalid under the article five equal suffrage proviso.
A test that focuses on whether an amendment was intended to lessen the impact of smaller states in Congress has several advantages. It is true to the framers' intent, it is straightforward as constitutional tests go , and, by the narrow construction of the proviso it represents, it reduces the danger that any future amendment ever will be invalidated. On the other hand, intentions of a collective body are difficult to determine with any degree of confidence. And here, where the relevant intentions are not only those of the congressmen who proposed an amendment but also the state legislators who voted for ratification, the difficulties are magnified.
Intentions vary from person to person. Nonetheless, inferences can be drawn, and the court's task is really no different in kind from the inquiry it makes in certain equal protection cases, where evidence of purposeful discrimination is required before a constitutional violation can be found.
The comparison with equal protection law is apt since the article five proviso is a sort of limited equal protection clause for the benefit of small states. In , Congress proposed to the state legislatures a thirteenth amendment to the United States Constitution. It provided that: "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.
The proposed amendment was plainly a last-ditch effort by Congress to prevent disunion, and with the outbreak of war between the states, all efforts to adopt the amendment ended. Within a few years, the thirteenth amendment to the Constitution was adopted to do the very thing that the proposed amendment would have prohibited: to abolish slavery in the states.
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We can only speculate as to what might have happened had the proposed thirteenth amendment called the Corwin Amendment become part of the Constitution. It is most unlikely, however, that the presence of the Corwin Amendment in the Constitution would have discouraged the federal government from acting on the slavery issue. The demands for federal action were simply too strong to be ignored.
The obstacle posed by the Corwin Amendment could have been dealt with in any of several ways. One way would have been for the Supreme Court to construe the amendment to allow federal abolition or regulation of slavery-a difficult task since the prevention of federal "abolition or interference" with state laws permitting slavery was clearly the purpose of the amendment. A second, revolutionary approach would have been to convene a constitutional convention for the purpose of drafting a new constitution that would specifically give to Congress the power denied to it by the amendment.
A third, and probably more likely, scenario would have been the adoption of the thirteenth amendment-in our revised script of history, now the fourteenth amendment-with the Supreme Court eventually reaching the question of whether it could be enforced. The question could have been presented to the Court as a result of the adoption of either two amendments one repealing the Corwin Amendment and a second abolishing slavery or one abolishing slavery.
Only a hidebound formalist would contend the difference is significant. If the measure of constitutional adjudication is fidelity to the intentions of the Congress that proposed the amendment, the result in either case should be the same.
Since it was assumed by members of the Thirty-sixth Congress that the federal government already lacked power under the Constitution to regulate slavery in the States , the Corwin Amendment, if it had any legal significance at all, must have been intended to prevent any future amendment from authorizing Congress to regulate slavery. Senator Douglas believed this to be not only the intent of the amendment, but its effect as well:.
Were the Corwin Amendment to have become part of the Constitution, no less violence would be done to the intentions of the Thirty-sixth Congress by the simple adoption of an amendment prohibiting slavery than by adoption of such an amendment only after adopting another amendment repealing the Corwin Amendment.
The intention to prohibit repeal of the Corwin Amendment is implied by the terms of the amendment itself; no principled decision could depend upon whether the amendment did or did not include a clause expressly declaring the amendment not to be subject to repeal. If the Corwin Amendment had had legal significance beyond a mere admonishment to congressmen and state legislators, an act of Congress proposing an amendment repealing the Corwin Amendment would be unconstitutional, and the subsequent ratification of the amendment would be ineffective.
In view of the explicit limitations on the amending power contained in article five, the absence of any express prohibition of "unamendable" amendments such as the Corwin Amendment may argue against the existence of an implied limitation. Obviously, the existence of the equal suffrage proviso of article five indicates that the makers of the Constitution gave some consideration to the scope of the amending power. Indeed, the explicit limitation in article five is the basis of an argument denying the existence of various limitations on the subject matter of amendments supposed to be implicit in the constitutional scheme.
Legislative Process | California State Senate
The unamendable amendment, however, stands on a different footing. Had the framers meant to prohibit amendments abolishing the Supreme Court, establishing a hereditary monarchy, or uniting two existing states, one could reasonably expect them to have said so. But the same cannot be said about a prohibition against enforcement of amendments that are by their own terms not subject to repeal.
The prohibition of amendments that would dismantle certain fundamental institutions and arrangements established by the Constitution, including the states themselves, was a topic specifically debated by delegates to the Philadelphia Convention; the question of amendments that would alter the nature of the Constitution itself was not discussed. The debates indicate that the framers wanted the principles and institutions established in the Constitution to be open to evaluation and change. What is not clear is whether they intended their conception of a Constitution to be similarly subject to modification.
There is little doubt, however, that the makers viewed the Constitution not as an end in itself but as a means of achieving a stable and just Union. The Constitution was to provide a vehicle through which change could peaceably occur. It was thought far preferable for dissatisfied constituent groups to work through the amending process than to resort to other means to achieve their objectives. Mason said at the Convention: "The plan now to be formed will certainly be defective, as the Confederation has been found, on trial, to be. Amendments therefore, will be necessary and it will be better to provide for them in an easy, regular, and constitutional way, than to trust to chance and violence.
Nothing could be more inconsistent with the conception of the living Constitution than an unamendable amendment or an amendment authorizing unamendable amendments and which by its own terms is unamendable. As the framers recognized, the foreclosing of all possibility of constitutional change poses two dangers: it increases the risk of violence and revolutionary change, and it increases the risk that people will grow to disrespect the source of the institutions and arrangements that are forced on them.
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These dangers seem all the more acute when one considers the type of amendments which are most likely to be made unrepealable. If the Committee decides the bill has merit, the Committee may recommend the House take further action on the bill, most often, by recommending the House pass the bill or amend the bill. When a bill is reported out of Committee, it is read a second time, and if there are no amendments, the bill is ordered to the General File for its third reading and final passage.
There is no debate allowed on the bill at this time as this reading is a constitutional formality. However, if amendments are proposed to the bill, the amendments are considered and debated at this time.
If the amendment is adopted, the bill is reprinted with the amended language and ordered to the General File for its third reading and final passage. If the amendment fails, the bill is ordered to General File for its third reading and final passage in its original format. The bill may be passed, rejected or further amended.
If the bill is passed, it is sent to the other House of the Legislature for further consideration. If the bill fails to pass, it is considered dead and there is no further consideration unless the House should reconsider or rescind its previous action. If the bill is amended on third reading, the bill will be reprinted with the amended language and placed on the General File for final consideration once again.
Also, of the 69 amendments seeking to limit congressional terms in one way or another, 66 were sponsored by Republicans. Conversely, 68 of the 72 proposals to authorize limits on campaign contributions and expenditures were sponsored by Democrats or a Democrat-aligned independent.
Some members, in fact, offer the same amendment repeatedly: In nine straight Congresses, for instance, Rep. Jose Serrano, D-N. We also looked at the reasons that drove some of the most common amendment proposals. Conversely, as same-sex marriages have become more common and public opinion has become more supportive of them in the past few years, there have been fewer and fewer proposals to write a ban on such marriages into the Constitution. Amendments often are proposed as ways to overturn or get around controversial court decisions.
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