Is a Non-Amendable Constitutional Provision Legitimate?

We in the United States have long been pretty comfortable with the difficulty of amending our Constitution, even though some good constitutional legislation (e.g. the Equal Rights Amendment) has fallen victim to the demanding requirement of ratification by three quarters of the states.  (The amendment on congressional pay took 202 years to collect its final state ratification.) 

Two of the provisions of the Constitution were made unamendable for 20 years: one permitting each state to continue its importation of slaves and the other prohibiting “direct” taxes except apportioned by state population (interpreted to prohibit unapportioned taxes on rental and investment income). (Article V). The 20 years having passed, and the privileged constitutional provisions having been partially or entirely amended into oblivion, these two instances of temporary unamendability are of only historical interest.

Article V also declares, however, that one constitutional provision, “equal Suffrage in the Senate” may not be amended by any procedure, ever.  Well, except it may be amended by consent of all the states, as unlikely a circumstance as can be imagined. If in 300 years, the population of Florida consists of three families holding out on the last remaining bit of dry Floridian land, this handful of people will still be entitled to the same number of Senators as Texas, with its 400 millions of citizens, and there will be nothing the Texans can do about it.

We ordinarily would think that it would be unjust for a small group (it was small whether we count only the framers or the framers plus ratifiers) to impose their political preferences on a much larger group, especially if the smaller group were closed by gender, race, class, or property qualifications.

We also think there is something to be said for legislators representing, directly or indirectly, the very persons who will be affected by the legislation.T hen too, it is at least desirable for law makers to have some minimal knowledge of the specific conditions for which they are making law. Even the most farsighted eighteenth century gentleman would have failed to anticipate much of the circumstances of our 21^st century, a century which their great, grandchildren’s grandchildren would not live to see. Yet unamendability extends not just to the 21^st but the 31^st and beyond.

So these concerns, and others that will shortly come into focus, might raise some doubts about this unamendability business. I concede that there is no discernible anxiety about it in the general population and very little even among political philosophers and legal theorists. Despite this, it does seem to me worth pursuing what it is, if anything, that made the unamendability of equal Senate suffrage a legitimate exercise in constitutional legislation.

It may help to evaluate the various theories of legitimate unamendability if, in addition to equal suffrage in the Senate, you keep in mind how each theory would bear on two amendments that will probably not be introduced in the next session of Congress. Here they are by popular name and exact wording. 

Safeguarding the 14th: No amendment made to this Constitution shall in any manner affect its Fourteenth Amendment.

Safeguarding the 2^nd: No amendment made to this Constitution shall in any manner affect its Second Amendment.

Following are some possible theories upholding the legitimacy of unamendable constitutional provisions. These are theories which have been, or I infer or imagine might be, put forward in support of unamendability. As my imagination may have been insufficiently disciplined, please skip over those theories that you think are non-starters.

Formalism

This is the first theory that the friends of either of our two “Safeguarding” amendments would put forward were their legitimacy challenged. It might also be a first reaction were the person on the street asked about the legitimacy of the unamendability of the equal number of senators. The basic idea of the formalist theory is that the anything promulgated in accordance with the existing law, procedures and institutions is as legitimate as anything could possibly be.

If this theory of legitimate unamendability is correct, then nothing would prevent our making the Second or Fourteenth Amendments unamendable so long as we follow one of the two constitutionally set out amendment procedures in elevating them to that status. There is no substantive restriction in the Constitution as to the content of amendments, excepting only the two 20 year restrictions and the equal Senate exception. 

There is nothing expressly prohibiting amending away the House of Representatives, the presidency, or the Supreme Court. So it is unsurprising that no constitutional provision prohibits our “Safeguarding” amendments. And, of course, the provision safeguarding equal Senate suffrage against amendment is itself a powerful precedent for the constitutional permissibility of any new proposals putting particular constitutional provision beyond amendment. 

(The preceding paragraph may have raised in your mind the question whether an amendment to abolish the Senate would be constitutional. It would leave Senate suffrage equal – at zero. It would be argued, however, that the unamendability of equal Senate suffrage implies the unamendability of the existence of the Senate. It is also arguable that large structural features of the Constitution implicitly constrain the amendment clauses, and amendments abolishing neither the presidency nor the Senate would be constitutional.This is for another time at the earliest.)

If formalism appears to do a nice job for the legitimacy of either of our Safeguarding amendments, however, that appearance is not nearly as strong for the provision that guaranteed an equal Senate. The problem is that the legitimacy of the Constitution itself fares poorly under formalist inspection.

The Constitution did go into effect pursuant to its own terms, putting aside a few cavils arising from the brevity, vagueness and ambiguity of the ratification provision of Article VII. If the legitimacy of legislation could be guaranteed by a document’s own internal provisions for taking effect, however, legitimacy would be pretty cheap. (I will not here display my constitution for Mars, which I have been scrupulous in ratifying pursuant to its own ratification procedure.)

It has always been an embarrassment for those with formalist inclinations that the United States Constitution was itself flatly unconstitutional. The Articles of Confederation were the governing charter of the United States and their government, and the ratification procedure of the untitled document we have come to call “the Constitution” fell well short of the requirement of the Articles for their amendment or revocation.

And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.   Article XIII

Article VII of the Constitution made that document effective upon ratification by nine states, not all thirteen. In fact, the government did shift over to the new constitution well before “confirmed by the legislatures of every State.”  Indeed, the final entry into the new union, Rhode Island’s, was of the kicking and screaming variety, ratification having dramatically failed twice previously. The bad faith of its Confederation partners left the Ocean State only the choice of signing on or trying to go it alone as a tiny independent nation surrounded on three sides by the United States and on the fourth by that ocean, still dominated by His Majesty’s Navy.

In addition, the Constitution was not agreed to in Congress or confirmed by the legislatures of the states, but by conventions in the states. These lesser infractions of the then governing document we can pass by here. It is the bold violation of the amendment and revocation provision of the Articles that made of the transition to the new de facto government under the Constitution a usurpation in formalist terms. Looking, then, to the formalist paradigm, neither the Constitution as a whole nor its perpetual protection of equal votes for states in the Senate is legitimate.

(For more on the unconstitutionality of the Constitution, see the post “Was the US Constitution Unconstitutional?” http://lawrencecrocker.blogspot.com/2014/10/was-us-constitution-unconstitutional.html.)

Authority of the Founders

It was not any ordinary collection of men who crafted the Constitution and its unamendable Senate clause. They had more than typical talent, insight, and judgment. In the media, in legal briefs on constitutional issues, and, quite often, in American political theory the founding fathers are treated nearly as demigods. It is not just that their writings and recorded remarks are grist for intentionalist theories of constitutional construction. Their values and policy preferences are taken to be of special weight just because they were theirs.

Perhaps, then, sound political theory would prohibit us from amending the Constitution to Safeguard the 2^nd or the 14^th, but not so for the founders. Their constitutional wisdom gave them special prerogatives. 

Frankly, I do not think the framers of the Constitution deserve so much reverence. Among other ways in which they fell short of sainthood, and even sagehood, each of them signed a document that included the following clause:

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due. Article IV, Section 2, Cl 3

 
Yet several signers of the Constitution had earlier pledged their lives, fortunes, and sacred honor in support of the proposition “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Even those who had not signed the Declaration should have refused to sign onto the fugitive slave clause. Of course, nearly half of the signers of the Constitution owned slaves themselves. No surprise they found nothing objectionable in the clause. The pro-slavery delegates argued the sanctity of private property, the evils of a central government so powerful as to interfere with state decisions to keep people in chains, and intersectional comity and civility. (Of course, a federal government powerful enough to have agents who would return runaway slaves was OK, and discussions to coordinate the transshipment of human property from free states back to the property’s proper owner should not be expected to engender any incivility.) 

In addition to endorsing the fugitive slave clause, the 3/5 clause, and the two decade protection of slave importation clause, the framers and ratifiers also left the franchise for federal elections (President and House) to the tender mercies of the states. This all seems to me inconsistent with the contention that their wisdom, and in particular their insight into justice, was so profound that any of their political preferences ought, because it was their preference, forever hold sway over the preferences of later generations. 

(I am inclined to side with those who contend that the fugitive slave clause was itself an illegitimate exercise in constitutional legislation and void ab initio. That, however, I need not rely upon here in inquiring into the legitimacy of the unamendability of the equal Senate. It is enough for now that the fugitive slave clause, together with the other slavery accommodations of the Constitution, are strong evidence of lack of a preternatural insight into justice.)

The deeper question, of course, is whether any collection of persons, however wise and just, have, because of these credentials, a right to make unamendable law on details of how people of later generations are to govern themselves. I would argue not, but I am not going to argue it here as the Constitution’s framers and ratifiers simply did not reach high enough on the sage-ness scale to qualify even were there such a principle. Still, indirectly, some of what follows will bear upon that deeper question. 

Necessity

It has long been a theme in the high school teaching of American history and civics that the compromises that brought states, large and small, slave and free (or heading towards free), to ratify the Constitution, was a masterstroke of statesmanship.

Of course, as is readily conceded by these teachers, compromises had their flaws. Some texts even go so far as to suggest some were “necessary evils.” Necessary, they continue however, they undoubtedly were, as without them the unquestionably great object of forming the United States out of those 13 former colonies might have failed. The unamendability of equal representation in the Senate was part and parcel of the Great (bicameral) Compromise. It is its necessity, on this theory, that underlies the legitimacy of the clause.

I hope that in every classroom in which this line on the constitutional compromises, Great and otherwise, is pushed at least one students stands up and says something like:

No. Nothing is worth making a deal with slavery. If a country could not then have been formed with all 13 states, too bad.  What happened  70-some years later, anyway, shows compromising on slavery was not very farsighted. 

We, in any event, are not concerned with all of the compromises but only with the unamendable Senate clause. Was that particular provision necessary to the accession of enough Philadelphia delegates for the Congress to transmit the documents to the states and was it further necessary to the ratification by all 13 states?

Imagine the following argument that might have been made to Gunning Bradford, sent to Philadelphia from Delaware, a small state and a slave state, and who was among the architects of the Great Compromise. 

Gunning, we are willing to give you everything else you want, but surely this unamendability business shouldn’t be a deal breaker. You are getting, for your slave owners, the fugitive slave clause, the 3/5^ths clause, 20 years of protection for importation. More to the present point you are getting two Senators for Delaware, just the same as Virginia, Massachusetts, and New York. That can only be changed if three quarters of the states agree, which you know won’t happen. More than a quarter of the states are small enough to want to defeat any unequal Senate amendment. Even populous Virginia will probably find this Senate guarantee a useful protection against abolitionist legislation coming from the rapidly growing north.

It seems to me more than likely that this argument would have succeeded with Bradford, and that Delaware would have ratified a thoroughly amendable Constitution. Their convention, we know, was eager, ratifying first and unanimously. Rhode Island, I suspect, would not have been stopped from its inevitable capitulation by an additional loss of a protection for a remote contingency. 

However, historical counterfactuals of this sort are notoriously hard to evaluate. So, for the sake of further argument, let us assume that unamendability was absolutely necessary for the ratification of a constitution binding all 13 of the original states. How proceed from this to the conclusion that the provision was a legitimate exercise in constitutional legislation?

The general idea would have to be along the lines that a 13 state nation was so important to proper and just ends of political organization in North America that any constitutional provision essential to establishing that nation was ipso facto legitimate. 

Could it really be that a nation that started out without Delaware or Rhode Island would have fallen so far short of the nation that actually resulted from the Constitution? I don’t think we can adumbrate in any very meaningful way what would have been the career of a 12 state United States. The burden, however, is on the “necessity conveys legitimacy” argument to show that it would be far inferior to the real world United States. The values that make for a good polity, first of all justice, would be so diminished in a nation that began without Delaware as to overcome any legitimacy objections to the unamendability clause in the real world Constitution. That  fewer than 2000 men (grand total framers and ratifiers) purported to limit forever how later generations might alter one of their representative bodies pales in comparison to the horror of a nation starting on its way without Rhode Island? Would an unamendable clause protecting the right of states to maintain slavery also have been legitimate if that had been found necessary to bring all 13 together? 

I have gone a little out of my way here to ridicule the argument that 13-state-necessity bestows legitimacy, but, civics teachers to the contrary notwithstanding, I do think it is an extravagantly implausible argument.   

Reliance

A different argument takes off from many of these same facts, but looks not to the necessity of the clause to a 13 state union, focusing instead on the reliance on a forever equal Senate by the conventioneers in Delaware or by Wyoming statehood ratifiers.  There is often injustice in changing a condition of an agreement that was relied upon by one or more of the parties in entering into the agreement. Could this give the unamendability clause legitimacy?

For reasons already suggested there is some basis for doubting that the Delaware ratifiers, and more especially members of Wyoming’s statehood convention, really relied upon the unamendability clause.  Put aside the fact that unamendability was a detail that few probably paid much attention to, assume that there really was reliance on this provision. 

In the civil law of agreements, reliance usually has legal consequences only when it is detrimental reliance. It would not be easy to argue that Delaware, Wyoming, or any of the other small states made their condition worse by entering into the union. After all, what were there alternatives? Wyoming could have remained a territory, of course, but that was an unappealing option.

Let us, however, assume all this history away and consider whether reliance would confer legitimacy on the unamendability clause if, contrary to historical fact, the majority of voters at the convention that brought Wyoming into the union in fact detrimentally relied upon that clause in voting in the affirmative. 

Were there a movement to make the Senate semi-proportional, any of those aye voters from the Wyoming statehood convention could interpose a reliance objection. However, any such Wyoming founder would now be something over 140 years old, which, I think, is reason enough to doubt his standing. Could contemporary Wyomians raise the reliance point on their own footing to protect their Senate leverage?  

It seems quite possible that an ambitious aspiring politician might move from California to Wyoming under the impression that a few million dollars and an ability to sound sincere in proclaiming virtues of coal might yield a seat in the United States Senate. This politician, however, would probably not need the assurance that amendment could not make the Wyoming Senate slot less strategic in some future year. The idea that anyone other than aspiring politicians remains in or moves to Wyoming in reliance on equal Senate suffrage seems barely conceivable. That anyone does or did so looking to the unamendability of that status is preposterous.

Could contemporary Wyomians claim benefit from the reliance, had there been any, of their statehood convention forbears?  It is hard to see how any binding effect of reliance could be transmitted from one person to another (or to another to another to another) where the detrimental reliance itself, which gives the concept its force, fails to be transmitted.

Let us, however, make the extravagant supposition that somehow in the metaphysics of political entities, the State of Wyoming, can be said to  have relied detrimentally on the unamendability clause and still does so – even though the people now living in Wyoming have not and do not, though they may wish to assert the state’s reliance. Would this reliance contribute towards the legitimacy of the provision? (It could not have contributed to the legitimacy of the clause on the date of the Constitution’s ratification, as legitimization backwards over many years seems no more attractive than backwards causation. However, if state reliance can make legitimate a law that otherwise would not be, then reliance by Delaware and New Hampshire might have done the trick initially, the later ratification by Rhode Island and much later by Wyoming simply contributing to the carrying forward of that legitimacy.) 

The larger question is whether reliance, whenever and by whom, can bestow legitimacy. That persons, even many persons natural and artificial, have relied upon an unconstitutional statute, and done so to their detriment, will not make the statute constitutional or legitimate. An injustice can arise if a government, or anyone else for that matter, encourages people to rely on a non-legitimate law. That is to be lamented, and avoided where possible, but it does not make the non-legitimate legitimate. 

A “Constitutional Moment” – Metaphysical and Positivist Theories

Perhaps what makes the Constitution, and all its unamended provisions legitimate, including the unamendable provision and the provision that works that unamendability, is the fact that the constitutional legislation took place in a special historical epoch – a time of nation formation.  In “constitutional moments” statespeople, properly situated, can legitimately legislate constitutional provisions which would, at other times, be impermissible. Among the powers of special persons in these special times might be the imposing their political preferences in perpetuity on much later, much larger, and much differently constituted populations of the polity.   

The period from the drafting of the Declaration of Independence through the ratification of the Bill of Rights has been taken to be a single, longish, constitutional moment. The framing and ratification of the 13^th, 14^th, and 15^th amendments is often denominated a second constitutional moment. The 19^th, Amendment, women’s suffrage, never is. 

I will admit that I have not studied constitutional moment theories in any depth. It appears from a distance that they may run from serious, if vague, political metaphysics to unalloyed legal positivism.

 
The idea of political metaphysics may seem a little strange at first, but recall  “the divine right of kings.” The king could do all sorts of things contrary to the preferences of everyone else in his kingdom if he so chose. If the king willed it, it was legitimate because, ultimately, legitimacy was ordained by God. 

Some version of the Spirit of the Times might play a similar role in conferring legitimacy on constitution makers. These versions, in turn, may be metaphysical enough to recall Hegel or denatured down to the level of public opinion polls. If you know of any treatment of “constitutional moments” that explains in any detail the political metaphysics behind the special legitimacy conditions ascribed to these periods, I would be grateful for the cite. 

In the absence of that cite, and choosing not to take the time to go into theological or Hegelian theories of the legitimacy of unamendable constitutional provisions, it is the legal positivist take on constitutional moments that is going to get our attention. The rough idea is that the Constitution, with its uanmendable Senate suffrage provision, was legitimate at the time, despite the Constitution’s violation of the Articles of Confederation, because it was accepted by the people then living, or at least the people then living who counted. The enactments of the new Congress and the decisions of the new courts could be and were enforced. 

Moreover, this has continued to be true from that date to this, more or less. The Civil War period was a less, but even then the Constitution was (almost entirely) in force in the northern states. In the south there was the “Constitution of the Confederate States of America.” That document, aside from reciting in preamble the sovereign and independent status of its States and the favor of God, copied the Constitution. In this respect, the content of the senior document retained the obedience of the population of the whole nation. In particular, the last sentence of the Confederate Constitution’s amendment article reads: “But no State shall, without its consent, be deprived of its equal representation in the Senate.” (Article 5)

So, again roughly, the unamendability of the Senate clause was legitimate when the Constitution was ratified, despite the Articles violations and despite the undemocratic aspects of the drafting, congressional transmittal, and ratification process. It was all legitimate by virtue of larger sociological facts, particularly facts about the population’s propensity to obey the laws and agents established by the Constitution.  That same propensity continued down the years and still manifests today in at least as strong a form as ever. That is all, says legal positivism, legitimacy requires.

Yet, suppose that the voting leverage disproportions in the Senate continue to grow over the next few decades, and media editorials ever more frequently highlight those occasions when senators representing a quarter of the nation’s population block legislation favored by three quarters.  Ambitious politicians, unions, money center bankers, grass roots groups, and a few theorists begin to challenge the unamendability of equal Senate representation. They say that those 18^th century gentlemen had no right to prevent us from changing the structure of our representative institutions via the amendment of our Constitution.  It may be, although this is not essential to the story, that the interstate mobility of the population continues its upward trend, and that the primary identification of most people with the state in which they happen to live in a given year is more with its athletic teams than its government. 

A bill is introduced in and passes the House to amend the Constitution to make the Senate semi-proportional. (I will not bore you with the formula, which still gives some extra weight to small state voters, and in particular, insures at least one senator to every state. To accomplish this, the bill increases the size of the senate.) In a surprise development, the bill gets its two thirds in the Senate, several small state senators signing an open letter explaining their decision to sacrifice their political careers to democratic principle.

I will also forego the fascinating history of the bill in the courts.  Suffice it to say that the legitimacy of constitutional unamendability took up much of the space in the briefs and the opinions. Legal positivists split on the question. Some said that, sociological facts having made the unamendable Senate legitimate at ratification, it was legitimate for all time. It was the law and subsequent sociological changes could not change it. 

Others said that this was a half-way positivism. The sociological fact was that the population was now, by numbers, much more solidly against equal representation in the Senate than the population of the nation was in favor of the Constitution, equal representation in the Senate, or unamendability in 1788.  Said the pro-amendment positivists:

We cannot jump on the sociological facts horse when it suits us and jump off when it doesn’t. If this amendment goes into effect, the inclination to obey the laws and agencies pursuant to the amended Constitution will be no less than it was in the last decade of the 18^th century.  This will be so despite the flat conflict of our new Senate amendment with the original Article V. That is no greater a conflict, after all, than that between our Constitution’s 7^th article and the 13th of the Articles of Confederation.  If you want to call this a “Constitutional Moment,” be our guests.

In short, if sociological facts about willingness to give obedience, and the like, control what is legitimate and what isn’t, then no constitutional unamendability provision is safe. Those who theorize or agitate about the dubious bona fides of unamendability, seeking to affect the sociological facts, will be conducting themselves in a way to which no positivist can object.

Merit of the Provision Made Unamendable – Natural Law Theory

If you aver at a cocktail party that the unamendability of Senate equality is an illegitimate Constitutional provision, and hence void, you will probably not provoke a discussion about constitutional legitimacy. Instead you will hear arguments con and pro over whether little states should have the same vote in the Senate as big states. Before you head off to try to find another drink, or interlocutors who can keep to the topic, consider the possibility that the legitimacy of making a constitutional provision unamendable might, after all, have something to do with the merit of that provision.

Wouldn’t it, at the very least, be less objectionable for 1^st Amendment or the 13^th to be shielded from amendment than for the 30 year age requirement for senators to be so protected? Indeed, if there is anything that a small group of distant ancestors, non-diverse in gender and race and barely diverse in religion and class, ought to be able to impose upon all succeeding generations it would be the prohibition of slavery. (For a discussion of illegitimate force to end slavery see “Jefferson Davis and the Moral Right to Abolish Slavery.” http://lawrencecrocker.blogspot.com/2014/07/jefferson-davis-and-moral-right-to.html. )

On most versions of natural law theory any statute establishing or enforcing slavery would be void, and any legislation purporting to undo any prohibition of slavery would be void as well. This, in turn, very nearly implies that a “Safeguarding the 13^th” amendment would have to be legitimate as it, effectively, is already an implicit part of the natural law.

If, for the sake of argument, we grant this much to the natural law theorists, then it will be sufficient to establish the legitimacy of unamendability if either of our two hypothetical Safeguarding proposals or of unamendable Senate equal suffrage if these provisions are in the same normative category as the prohibition of slavery.

For Safeguarding the 2^nd, I think, although some would disagree vehemently, even violently, that real world facts show that Amendment, as now interpreted by the Court and in light of gun death statistics, does little to advance the equal enjoyment of life, liberty, and the pursuit of happiness. On the other hand, Safeguarding the 14^th Amendment would fare well on this analysis, whether it fares well enough I will not here examine.

The citizens of Wyoming and Vermont may enjoy their Senate leverage, but they surely have no unalienable right to it. There being nothing inimical to human dignity even in a unicameral legislature, it would be a heavy lift to show that equal Senate suffrage is such a very, very good idea that it deserves eternal protection from any alteration. An argument sounding in natural law will be no more help in establishing the legitimacy of the Constitution’s one absolute bar on amendment than any of the preceding arguments.