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The Constitution cannot be amended to change the equal representation of states in the Senate. What would happen if an amendment was passed and ratified that did this? Could the Supreme Court rule that part of the constitution is unconstitutional? Would implied repeal be relevant?

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    I don't see why not. They've ruled on other issues involving the amendment process, e.g. Dillon v. Gloss. And this would be similar, because part of following the constitutional amendment process is to start with an amendment that is constitutionally permissible in the first place. Aug 25 at 5:12
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    @NateEldredge so they would not actually rule that this amendment was "unconstitutional," but that it was never part of the Costitution to begin with?
    – Someone
    Aug 25 at 5:13
  • @CharlesE.Grant "...no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." (Article 5)
    – Someone
    Aug 25 at 5:14
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    "The Constitution cannot be amended to change the equal representation of states in the Senate." It can with the consent of the affected states. It's just one more requirement in the amendment process, failure to obtain the consent would just mean that the amendment failed just as if they failed to get the agreement of 2/3 of the state. If congress insists that an amendment is valid when the supreme court says it has not met the requirement for passage, then you have a constitutional crisis. Aug 25 at 5:21
  • @Someone yep, they would regard the amendment as either unratified because requiring the consent of each affected state, or plainly unconstitutional, which in both cases means that it's not and has never legally been part of the constitution. Aug 26 at 13:29

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So in the United States, the person who has the authority to recognize that an Amendment has been passed is the National Archivist. He or She would count off that all the requirements are met to proceed to passing and once accepted, the amendment is added.

That said, the most likely course of action is that the Supreme Court would issue a Mandamus forcing the Archivist to reject the Amendment on the grounds that one cannot Amend that into the Constitution... or that the Amendment would only be in effect for the states that voted in favor of the Amendment (since they consented) and any new states that came aboard following the the ratification of this proposed amendment.

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  • The Supreme Court does not have authority to issue a writ of Mandamus , that was exactly the issue in Marbury v. Madison. However, the DC Circuit Court of Appeals does. Aug 25 at 14:27
  • This is the way Alabama, Louisiana, Nebraska, South Dakota and Tennessee filed suit in 2020 (still ongoing) to enjoin the Archivist to recognize the ERA as part of the Constitution. And as far as I'm aware, they didn't win on the merits, but they weren't thrown out as would have been the case if the process of filing suit against the Archivist were invalid. So, valid answer. Aug 26 at 13:23
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Article V does not say that Article V cannot be amended, so an amendment could be passed that deletes the text "and that no state, without its consent, shall be deprived of its equal suffrage in the Senate". This does not remove California's representation in the Senate (etc) therefore California does not have veto power. SCOTUS has not previously ruled that this clause cannot be amended out of existence, or that there is any part of the Constitution which cannot be amended or which must satisfy criteria other than those stated in Article V. Of course, there does exist an ideology to the effect that Art. V esp. the last clause is sacrosanct, but that can be firmly asserted only when SCOTUS so rules (a ruling that might be later overturned, depending on the influence of "original intent" on the court at the time). If you compare the language of the "1808" clause with the "equal suffrage" clause –

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

vs

no state, without its consent, shall be deprived of its equal suffrage in the Senate

the former clause clearly has a broader scope (affecting in any manner). The Framers had the option of stating the suffrage clause similarly ("shall in any manner affect the equal suffrage of a state..."), but did not. What you don't say in writing laws and constitutions is good textual evidence for original intent.

Anyhow, it would be up to SCOTUS to rule on this question.

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  • This is a good explanation, but doesn't answer the question : you're saying that if the clause was first removed, then the amendment passed, then the latter amendment would be legal. The question is whether any amendment can be illegal. Aug 26 at 13:18

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