Can the US Senate be abolished without unanimous consent of the States?

Question

Article V of the US Constitution states, in part:

and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

It has been suggested elsewhere that abolishing the Senate, or otherwise reducing its power, would not violate this clause because it would not affect one State at the expense of another.

In my mind, however, if the intent of the Senate is to give each State equal power with the others, then any reduction in the power of the Senate would, de facto, deprive that State of its equal suffrage. Therefore, moving to a unicameral legislature (for example) would require the unanimous consent of the States.

I would love to get a more informed perspective, though.

Answer 1

There is no definitive answer to any of these questions because nobody has ever attempted to do this or anything similar resulting in judicial review of this portion of the U.S. Constitution or of other authoritative interpretation of it outside the courts applied to a real life case as opposed to a mere advisory opinion.

It has been suggested elsewhere that abolishing the Senate, or otherwise reducing its power, would not violate this clause because it would not affect one State at the expense of another.

In my mind, however, if the intent of the Senate is to give each State equal power with the others, then any reduction in the power of the Senate would, de facto, deprive that State of its equal suffrage. Therefore, moving to a unicameral legislature (for example) would require the unanimous consent of the States.

I would not consider this to be a consensus or widely held view, although there is a colorable argument for it. Article V implicates the relative power of the states, not the power of the institution itself.

This said, an entire abolition of the U.S. Senate might very well implicate Article V because then a state has no equal representation in anything (including a portion of the calculation for the Electoral College) as opposed to equal representation in some, albeit less powerful, institution.

For example, I could see Constitutional Amendment providing that treaties are ratified by statutes passed by both houses, rather than by a two-thirds majority of the U.S. Senate alone, being upheld against an Article V challenge.

Answer 2

A simple answer to the simple question of abolishing the Senate is that it would require an amendment ratified by 3/4ths of the states. Art. 1 Sec. 1 says

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives

The Constitution asserts that there shall be a Senate, so that's the law tat has to be changed. Many clauses would make no sense if there is no Senate, including the Equal Suffrage clause (which is specifically about the Senate) and the Advice and Consent clauses. Since abolition of the Senate requires a constitutional amendment, all of these questions can be clearly and cleanly resolved with one complicated, well-thought-out amendment. Which only requires 75% of the states agreeing.

Answer 3

Yes

But not for the reason you suggest.

Article V says:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

So the composition of the Senate or its abolition can be done with a Constitutional Amendment (which, among other things, could remove this clause) only requires ratification by "three fourths of the several states"; that is, 38.

As to your specific question ...

The existence of the Senate and the number of senators is prescribed by the Constitution as 2 for each state so it would require a Constitution Amendment to abolish or change the number in any event. However, if it was changed to 1 or 3 or 12,764 for each state this would not violate the clause. So it could be done without changing this clause.

However, if you are making such a wholesale change anyway ...

As a point of interesting contrast

australia

The Constitution says this:

Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State,5 but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.

The Parliament has otherwise provided (several times) and there are now 12 Senators for each of the 6 states. Further, in 1975 the Parliament provided that the Northern Territory and Australian Capital Territory would have Senate representation of 2 Senators each - a controversial piece of legislation that needed to (and did) survive 2 separate High Court challenges.

In 1998, Territorians (people from the Northern Territory) rejected by referendum an offer of statehood that would have given them 3 senators - not being an "original state" this was perfectly Constitutional. The "Top End" is odd: if it were a state it would be the 3rd biggest by area (1,419,630 km²: 2.5 times the size of Texas) but the smallest (7th) by population (244,761, or less than half of the 6th biggest) - each person up there gets 5,800km² compared to the world average of 0.068.