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  Can an Article V Constitutional Convention abolish the existing Constitution? (search mode)
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Author Topic: Can an Article V Constitutional Convention abolish the existing Constitution?  (Read 392 times)
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Beef
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« on: April 10, 2019, 01:05:16 pm »

Article V places only one (currently applicable) restriction on amendments: "no state, without its consent, shall be deprived of its equal suffrage in the Senate."

Could a Constitutional Convention authorized under Article V pass an amendment authorizing itself to ratify a brand new Constitution, superseding the existing one once ratified?
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I'm with Mayor Pete
Beef
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« Reply #1 on: April 11, 2019, 03:46:08 pm »

I don't see why not. There's no provision that stops them from first amending out the last sentence of Article V. And more generally, the Supreme Court is the final arbiter of constitutional questions and I don't think they would stand in the way of a document that was ratified by the requisite number of states.

I'm not sure that's the case. Essentially the Constitution represents a contract between the federal government and every state that joins the Union. And one of the terms of that contract is that every state gets equal representation in the Senate. Even if 49 states decided that New Jersey should no longer get two Senators (which is reasonable), New Jersey would still need to agree to this loss of representation.

Completely abolishing the Constitution, I would think, would require the consent of every state.
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I'm with Mayor Pete
Beef
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« Reply #2 on: April 11, 2019, 04:47:57 pm »

If a convention proposed an amendment that repealed & replaced the entirety of the Constitution, then the stipulation that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate" can be gotten around, either with the new Constitution stipulating that neither the Senate in its current form nor the Article V Senate clause are repealed in the new Constitution (in which case, the new Constitution would still get to come into effect upon only 3/4ths of the states ratifying it); or with all 50 states approving the new Constitution (much easier said than done, of course, though still required if the new Constitution chooses to keep neither the Senate nor the Article V Senate clause); or legal acceptance of an argument to be made that, if the new Constitution abolished the Senate, then no state could technically have been "deprived" of its "equal suffrage" in a Senate that doesn't exist.

That may be solid grounds for legal secession. Is that not breach of contract? Or do individual states even exist as semi-sovereign entities? Could a national, general plebiscite agree to abolish the current Constitution and adopt a new one?

Article XIII (or whatever) This Constitution shall supersede and nullify any previous Constitutions upon winning a 3/4 majority in an election open to all citizens of the United States, both natural born and naturalized.

I mean, this happens in other countries as a regular thing, but we've never gone through it.
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I'm with Mayor Pete
Beef
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Posts: 5,837
United States


Political Matrix
E: -2.77, S: -8.78

« Reply #3 on: April 18, 2019, 12:25:38 pm »

Could a national, general plebiscite agree to abolish the current Constitution and adopt a new one?

Article XIII (or whatever) This Constitution shall supersede and nullify any previous Constitutions upon winning a 3/4 majority in an election open to all citizens of the United States, both natural born and naturalized.

I mean, this happens in other countries as a regular thing, but we've never gone through it.

No, because such an adoption of a new Constitution wouldn't be procedurally valid under the constitutional amendment process, & thus, the "new Constitution" wouldn't be valid unless & until it was successfully ratified under the procedurally valid constitutional amendment process (i.e. as it currently stands).

What made the current constitution's ratification "procedurally valid," except that it said it was? What gives a few dozen rich guys, all dead for 200+ years, the right to bind the sovereign will of the people today?
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