The Question of Limitations--Are There Implicit Restraints on the Constitutional Amending Process?
Given the Founders' desires to accommodate change, the Article V provisions protecting slave importation for twenty years, and guaranteeing that states would not be deprived of their equal suffrage in the Senate without their consent are somewhat anomalous. Why did the Framers, otherwise so cognizant of the need for change, make these exceptions? What would happen if an amendment were adopted to repeal the equal suffrage provision and the states involved did not, at least not unanimously, give their consent? Should an unamendable provision in an otherwise amendable constitution be ignored or disregarded like past unamendable Constitutions, or is it enforceable in the courts?
In addressing these questions, the records of the Constitutional Convention offer at least some guidance. As has been noted earlier, the major debates on the amending process came in the closing week of deliberations. By September 10, the amending provision provided for Congress to call a convention "on the application of the Legislatures of two thirds of the States." 1 Elbridge Gerry, Alexander Hamilton, and James Madison criticized this proposal. Gerry feared that two-thirds of the states might agree to a convention that would propose amendments "that may subvert the State-Constitutions altogether." 2 Hamilton argued that the state legislatures would not request a convention except "to increase their own powers," 3 and that ills would be better perceived by the national legislature. Madison objected to the vagueness of the Convention provision, 4 and subsequently