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It almost certainly involves Article V, but likely not in the trivial "amend Article V to change the 2/3 supermajority to propose an amendment to a simple major
by DebtDeflation 6y ago
It almost certainly involves Article V, but likely not in the trivial "amend Article V to change the 2/3 supermajority to propose an amendment to a simple majority and eliminate the requirement for 3/4 of states to ratify" sense. That would never actually be ratified as states would be loathe to give up their power.
My guess is it would first involve the creation of a considerable number of new states under Article IV and then proceed to amend Article V as above by enlisting the newly created states. The part I can't quite explain is how those states get created without dividing an existing state which requires the consent of that state's legislature.
Edit: Really, the more that I think about it, the ability of Congress to create new states by simple legislative action (so long as the territory does not come from existing states) IS almost certainly the loophole. Every new state, no matter how small, gets 1 Congressman and 2 Senators. Create enough, and you control both houses of Congress. Since the EC vote is determined by number of Congressmen + the number of Senators by state, you'd also control the Presidency. Since the number of SCOTUS justices can be changed by simple legislation, you'd now control all 3 branches of government. At that point, using Article V to amend Article V just becomes the final icing on the cake.
Edit 2: DC is not a state, and so would not be subject to Article IV constraints on making new states from existing ones. Article I Section 8 gives Congress complete jurisdiction over DC. Reserve a portion of DC as the US Capital, divide the remainder into 150 new states. I think I just found Gödel's Loophole. Or maybe I'm just "a nerd trying to solve law" as someone else posted, that's entirely possible.
- rezonant 6y agoThis seems like much more of a loophole than just modifying Article V -- You can modify any part of the constitution via amendment, it's like root access. But your scenario here wouldn't require the "actual" states to sign off or would at least override them. Nice post!
- DebtDeflation 6y agoYeah, it strikes me that in all of these discussions about federalism, states' rights, the Senate as protector of the small states, the filibuster, the Electoral College, etc. is the implicit assumption that the number of states is fixed. But it isn't, or at least it wasn't for most of the nation's history. Even the number of states is more historical accident than grand design: Why are there two Dakotas instead of one? Why is the largest state (CA) over 68X larger than the smallest (WY)? Why do we have non-state territories that are larger than some states (PR is larger than 20 states!, DC is larger than 2)? It's all very arbitrary.