Do you really think that you couldn’t have a constitutional amendment that modified article 5 to remove the unanimous consent part? It seems no different from other amendments that change the constitution. Very unlikely, sure, but I can’t see why it wouldn’t be legal

@divibisan Yes, I do. I very much doubt that a modification of this part of the constitution which would have the practical effect of circumventing something that was intended to be impossible to circumvent without unanimous consent, would be upheld as valid.

@ohwilleke That doesn’t make sense. A constitutional amendment is part of the constitution. There are plenty to amendments that directly contradict and overrule earlier parts of the constitution. On what basis do you imagine this would be different? How can the constitution be found unconstitutional?

@divibisan: Because the fifth amendment states that a proposed constitutional amendment that would deprive a state of its equal suffrage in the Senate cannot become a valid part of the constitution. This appears to be part of its requirements and restrictions on the process for amending the constitution, just like the "three fourths of the states" requirement.

@sumelic but you can amend that part out (and anything else that would be contradicted)

@cpast Yes, although according to Wilson (1977, A Prime Minister on Prime Ministers, Book Club Associates), George V insisted that the Government call, fight, and win a new general election on the issue before He would allow them to create the necessary additional members of the House of Lords.

@Caleth: In a math class, maybe, but this isn't math class. (And Bertrand Russell wasn't exactly born yet anyway.) A court could easily reason that, if you could just amend that part out, then it would defeat the point of the clause, which was quite obviously to prevent states from losing suffrage in the senate regardless of any amendments. Ergo, you can't do that. QED.

@cpast Congress has to approve new states being added to the union and there are already examples of them not being approved because of the balance when you look at Puerto Rico. Besides even if you add a bunch of small states why would they want to change things and lose their newly found power?

@user541686 The Wikipedia article on Article 5 mentions several constitutional scholars who have argued that this clause could be amended without consent from all states, but none who have argued the opposite case. The clause would still serve a purpose even if this was possible, because it would make repealing equal suffrage a two-step process, which would be more complicated and time-consuming, thereby requiring a stronger and more stable political support for it.

Note that whether or not you can amend Article V to remove the unanimous consent requirement, you could certainly amend Article I to reduce the powers of the Senate, rendering the equal suffrage in that body effectively moot.

@Nobody: It depends on how the Supreme Court (should it choose to involve itself in the first place) interprets the word "suffrage." The small states might argue that a meaningless vote is equivalent to no vote at all.

"It isn't even clear, however, if the courts would consider the issue of such an amendment's validity justiciable, in which case any objection to its validity might fall on deaf ears." It would eventually become justiciable. If the constitution is amended to allow an amendment that allows population-based representation, and the senate passes a law, someone is certain to challenge the law as being invalid because the senate that passed it was invalid.

@Kevin: Arguably, zero suffrage for all is still equal suffrage for all.

@jcgoble3: The argument is not that it would be unequal suffrage, but that it would not be suffrage, equal or unequal.

@Acccumulation "It would eventually become justiciable. If the constitution is amended to allow an amendment that allows population-based representation . . . someone is certain to challenge the law as being invalid because the senate that passed it was invalid." If it is nonjusticiable then the courts can't consider if Congress was right or wrong even if someone would otherwise have standing to sue over it, because it finds that the decision is vested in Congress and not the courts.

@Kevin: Hence why I said "arguably". One view would say as you do. Another view could say that if nobody has suffrage, then all have an equal amount (which is none at all). The question of which would be an interesting Supreme Court ruling if it ever was implemented.

@jkej: How much would you be willing to bet that they put that clause in with the intention of making this possible as a "2-step process" vs. with the intention of making this impossible? How much would you be willing to bet for the opposite? Is the first amount greater than the second amount?

@user541686: That's just the old textualism-vs-originalism debate. Also known as the Clarence-Thomas-vs-everybody-else debate. Seriously, half the man's citations are to "Thomas, J., dissenting" (i.e. his own dissents).

@Kevin: Thomas is described as both textualist and originalist, so you're not really making sense here. Moreover, I don't think if this issue came to the current SCOTUS, the ruling would end in Thomas-vs-everybody-else. And regardless, it's pretty clear that that's a textual loophole that is very likely to be unintentional. So even if you think it's fair game to exploit it, it shouldn't be hard for you to see why a judge/justice acting in good faith might vehemently disagree with you.

For an example of a constitutional provision non-controversially interpreted from the outset in a manner contrary to its express plain meaning, one need look no further than the 11th Amendment (which was intended to preserve state sovereign immunity but doesn't actually say that).

""One way to get small states to agree to reform would be for a partisan majority wanting to end the status quo to create, or the credibly threaten to create, a large number of tiny states" I don't know if it would actually get them to agree. It would arguably make their agreement unnecessary from a strictly legal point of view, though, unless it were reversed by courts on the grounds of being an overt, explicit attempt to circumvent the Constitution.