There has been a lot of discussion in recent days about Senator Feingold's proposed constitutional amendment. As most people know, this amendment would change the system of gubernatorial appointment of Senators with direct elections. Now, there are good and bad arguments for both sides (I tend to fall in the anti-amendment camp for reasons of federalism, but that isn’t what this diary is about). There is a strong con argument that does not seem to have been raised by anyone: This amendment might be unconstitutional.
The idea of an unconstitutional amendment seems strange at first, but the concept is written into the constitution. Specifically, there are at least two things that cannot be changed through the normal amendment process:
(1) The constitution cannot be amended to forbid the slave trade prior to 1808 (this one is obviously moot); and,
(2) "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." U.S. Constitution, Art. V.
Now, the exact meaning of Article V has never been decided by the Courts. It is possible that the Supreme Court could decide that Article V is not judicially enforceable for one reason or another, or that Congress is empowered to interpret "equal suffrage in the Senate." However, a very good argument can be made that the Proposed 28th Amendment would violate Article V of the Constitution.
The argument is fairly simple. The 28th Amendment would be a legal mandate that the states occasionally go without a senator. This doesn’t mean that the Amendment cannot be passed, but it would suggest that it required unanimous approval of states, rather than just 75%, as states can consent to being deprived their representation.
It is difficult to see the 28th Amendment as doing as temporarily denying the states suffrage in the Senate, there are counter-arguments that would say that the 28th Amendment is not unconstitutional.
The first of these is simply that Article V does not apply to this sort of amendment. In short, Article V only applies to permanent deprivation of the State. Basically, Art. V has to be considered in the context of the Connecticut Compromise of a House based on population but a Senate in which the states are equally represented. As such, the purpose of Article V is to prevent the states from undoing the Compromise that they had agreed to. This argument is further supported by the fact that the other unamendable provision of the Constitution was to enforce another Compromise. The framer’s intent on this issue is somewhat murky though, given that the 19th Amendment has created a rather different system than the one that they envisioned.
The second would be to rely upon a legal fiction. Basically, that the states are never denied their suffrage, except by their consent. The proposed text of the amendment is:
SECTION 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies
.
Along these lines, if the Amendment gave a timeline ("...to fill such vacancies. The election to be held not less than 20 days nor more than 90 from the occurrence of the vacancy."), it would be unconstitutional, but it does not. The legal fiction would be the election could be held instantaneously (which really isn’t all that different from, say, the unborn widow in the context of the Rule Against Perpetuities).
Personally, I think that the arguments in favor of constitutionality would ultimately carry the day. However, I do not think the Article V concerns raised by the Proposed Amendment are so insignificant that they may be dismissed outright.