I hesitate to self-promote too shamelessly on Ezra's turf, but I have a new piece up at Campus Progress building on a guest-post I wrote here a few months ago. Basically, I want to get rid of the US Senate, and asked a number of constitutional law experts how one would go about doing that. Long story short, no one agrees on anything, least of all about whether the Senate is even capable of being abolished. An excerpt:
Sanford Levinson, a professor at the University of Texas law school and author of Our Undemocratic Constitution, thinks a Senate-abolishing amendment would not violate Article V. “The lack of any suffrage at all for any state would meet the formal requirements of "equal suffrage" (i.e., none for anyone),” he said. Daniel Farber, a professor at UC Berkeley, agrees, and argues that equal representation may not even be required. “One of my former colleagues once suggested to me that the Senate to which the equal representation cause refers no longer exists because of the 17th Amendment, providing for direct representation of Senators,” he recounts.Rest here. Incidentally, this may be the only time in my life that I get to use the phrase "institutional suckiness" in a respectable publication, a privilege for which I'm quite grateful.Opinions are not unanimous, however. Michael Dorf of Cornell Law School thinks Article V rules out this means of abolishing the Senate. “My view is that this would indeed require unanimity,” he explains. However, even if Article V precludes such an amendment, this raises another question. What if, before passing an amendment abolishing the Senate, another amendment passed removing the “equal suffrage” clause from Article V? Such a change would remove any impediment to abolishing the Senate, but the question remains of whether it would be legitimate.
Dorf doubts that it would be, and thinks the unanimous consent of the states would be needed, just as with abolishing the Senate through a single amendment. Levinson thinks the question is ultimately one of politics and not Constitutional interpretation. “My own view is that if the country were ever sufficiently outraged by the Senate to support an Article V amendment that was able to gain 2/3 support in Congress and then ratification by 3/4 of the states, no court would (or should) dare to block it on constitutional grounds,” he says. Larry Kramer, a constitutional law expert at Stanford Law School, agrees, but is not as confident in his prediction as Levinson. “It’s just not a question as to which there is a ‘right’ legal answer. There are legal arguments on both sides,” he explains, “But as with many or most constitutional issues, law and politics are inseparable and it would be a political resolution, with legal arguments as part of the rhetoric.”
