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Twenty-seventh Amendment to the United States Constitution

 
US Supreme Court: Twenty‐seventh Amendment
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The Twenty‐seventh Amendment has a long and unusual history. A constitutional requirement that any changes to congressional compensation may not take effect during the Congress that enacts them was included among the twelve amendments that Congress proposed to the states in 1789. Of those twelve, the ten amendments that constitute the Bill of Rights were ratified by 1791. The other two, including the compensation amendment, failed to win ratification in the required three‐quarters of the states.

However, in 1873 the Ohio legislature, in protest against a retroactive congressional pay raise, ratified the compensation amendment, which had no time limit on ratification. In 1978 the Wyoming legislature did the same. Political activists then successfully urged more states to ratify the amendment, beginning with Maine in 1983. Michigan's 1992 ratification of the Twenty‐seventh Amendment provided the necessary margin. The Archivist of the United States certified the ratification on 18 May 1992, and Congress confirmed that certification two days later.

Although there has been considerable controversy about whether it is valid for an amendment to be adopted over such a long period of time, no court has addressed this question, and it may be nonjusticiable under the holding of Coleman v. Miller (1939), which held that conflicts arising in the amendment process are political questions to be resolved by Congress. The Supreme Court has not yet ruled on any case involving the Twenty‐seventh Amendment, although a federal appeals court has held that automatic cost‐of‐living adjustments do not violate the amendment. It is possible that some similar future challenge may yet be taken up by the Court.

Bibliography

  • Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty‐Seventh Amendment, Fordham Law Review 61 (1992): 497–557.
  • Adrian Vermeule, The Constitutional Law of Official Compensation, Columbia Law Review 102 (2002): 501–538

— Matthew J. Moore

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Law Encyclopedia: Twenty-Seventh Amendment
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This entry contains information applicable to United States law only.

The Twenty-seventh Amendment to the U.S. Constitution reads:

No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The long history of the Twenty-seventh Amendment is curious and unprecedented. The amendment was first drafted by James Madison in 1789 and proposed by the First Congress in 1789 as part of the original Bill of Rights. The proposed amendment did not fare well, as only six states ratified it during the period in which the first ten amendments were ratified by the requisite three-fourths of the states. The amendment was largely neglected for the next two centuries; Ohio was the only state to approve the amendment in that period, ratifying it in 1873.

In 1982 Gregory Watson, a twenty-year-old student at the University of Texas, wrote a term paper arguing for ratification of the amendment. Watson received a ‘C' grade for the paper and then embarked on a one-man campaign for the amendment's ratification. From his home in Austin, Texas, Watson wrote letters to state legislators across the country on an electric typewriter. During the 1980s, as state legislatures passed pay raises, public debate over the raises reached a fever pitch and state legislatures began to pass the measure, mostly as a symbolic gesture to appease voters. Few observers believed that the amendment would ever be ratified by the required thirty-eight states, but the tally of ratifying states began to mount. On May 7, 1992, Michigan became the thirty-eighth state to ratify the amendment, causing it to become part of the U.S. Constitution.

The effect of the Twenty-seventh Amendment is to prevent salary increases for federal legislators from taking effect until after an intervening election of members of the House of Representatives. The amendment is an expression of the concern that members of Congress, if left to their own devices, may choose to act in their own interests rather than the public interest. Because the amendment postpones salary increases until after an election, members of Congress may not immediately raise their own salaries. All Representatives must endure an election before a pay raise takes effect because Representatives are elected once every two years; Senators need not necessarily succeed in an election before a pay raise takes effect unless the pay raise is approved within two years of the Senator's next re-election effort.

The ratification process of the Twenty-seventh Amendment was by far the longest-running amendment effort in the history of the United States. Before the Twenty-seventh Amendment was ratified, the longest it had taken to ratify an amendment was four years. That measure, the Twenty-second Amendment limiting the president to two terms in office, was ratified in 1951. The proposed Equal Rights Amendment, which would have become the Twenty-seventh Amendment had it passed, failed to win ratification by the required thirty-eight states during the ten-year period Congress had allowed for its consideration by the states.

The gradual manner in which the Twenty-seventh Amendment was passed has raised questions about its validity, with concerns centering on the wisdom of allowing changes to the Constitution without reference to the passage of time. In Dillon v. Gloss, 256 U.S. 368, 41 S. Ct. 510, 65 L. Ed. 994 (1921), the U.S. Supreme Court stated a requirement that ratification of amendments be contemporaneous with their proposal, but in Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939), the High Court left it for Congress to decide whether a ratification was contemporaneous with its proposal. In Boehner v. Anderson, 809 F.Supp. 138 (D.D.C. 1992), aff'd, 30 F.3d 156, 308 U.S.App.D.C. 94 (1994), the District Court for the District of Columbia rejected a challenge to the constitutionality of pay raises in the Ethics Reform Act of 1989, Pub. L. 101-194, 103 Stat 1716 (1989). The court observed that the pay raises complied with the Twenty-seventh Amendment because they took effect after an election had intervened.

Wikipedia: Twenty-seventh Amendment to the United States Constitution
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Page 1 of the certification of Amendment XXVII in the National Archives
Page 2 of the amendment's certification
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The Twenty-seventh Amendment (Amendment XXVII) prohibits any law that increases or decreases the salary of members of the Congress from taking effect until the beginning of the next set of terms of office for Representatives. It is the most recent amendment to the United States Constitution, having been ratified in 1992, more than 202 years after its initial submission in 1789.

Contents

Text

“ No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. ”

Background

The Twenty-seventh Amendment provides that any change in Congressional salaries may only take effect after the beginning of the next term of office for Representatives. Sometimes called the "Congressional Compensation Amendment of 1789", the "Congressional Pay Amendment", and the "Madison Amendment", it was intended to serve as a restraint on the power of Congress to set its own salary—an obvious potential for conflict of interest.

This amendment was actually suggested by a number of states. During the 1788 North Carolina convention, assembled to consider the original Constitution itself, the following amendment, among others, was requested of Congress:

The laws ascertaining the compensation of senators and representatives, for their services, shall be postponed in their operation until after the election of representatives immediately succeeding the passing thereof; that excepted which shall first be passed on the subject.

Virginia in its 1788 ratification convention recommended the identical language that North Carolina had suggested. New York in its 1788 ratification convention also urged Congress to consider this wording:

That the Compensation for the Senators and Representatives be ascertained by standing law; and that no alteration of the existing rate of Compensation shall operate for the Benefit of the Representatives, until after a subsequent Election shall have been had.

In 1816, more than a quarter century after the Congress had officially submitted the amendment (and eleven others) to the state legislatures for consideration, the Massachusetts General Court expressed its desire for an amendment to the Constitution worded almost exactly as it was offered by Congress in 1789. The legislation embodying the recommendation was reportedly approved by the Massachusetts House of Representatives on a vote of 138 to 29. Sometime in December 1816 or early 1817 the Kentucky General Assembly did the same thing; and in 1817 or January 1818 Tennessee's lawmakers followed suit.

Proposal and ratification

The first hundred years

Presented in the United States House of Representatives by Representative James Madison of Virginia, this amendment was the second of the twelve Constitutional amendments originally submitted to the state legislatures for ratification by the 1st Congress on September 25, 1789, the last ten of which became the United States Bill of Rights by December 15, 1791.

From 1789 to 1791, the compensation proposal was ratified by the legislatures of only six states—Maryland, North Carolina, South Carolina, Delaware, Vermont and Virginia—out of the ten then required. As more states entered the Union, the ratification threshold increased. In 1873, more than 80 years after Congress offered it to the nation's state lawmakers, the Ohio General Assembly ratified the compensation amendment as a means of protest against the "Salary Grab Act." The Salary Grab Act not only provided for a Congressional pay raise, but made that raise retroactive.

Ratification completed

The proposed amendment was again largely forgotten, until University of Texas at Austin student Gregory Watson discovered it in 1982. The push for ratification began in earnest and the amendment became the Constitution's Twenty-seventh Amendment when it was ratified a decade later on May 5, 1992 by the Alabama Legislature, the thirty eighth state to do so. It had been erroneously believed that the ratification by the Michigan Legislature on May 7, 1992 added the Twenty-seventh Amendment to the U.S. Constitution. However, when the June 1792 ratification of all twelve amendments by the Kentucky General Assembly during that state's initial month of statehood later came to light, it was quickly realized that the Twenty-seventh Amendment's addition to the Constitution was actually finalized on May 5, 1992 by Alabama (whose legislature had acted immediately before Michigan's). Possibly unaware of the 1792 ratification, Kentucky lawmakers ceremonially approved the amendment a second time in 1996 (almost four years after the amendment had already been made part of the Constitution). In 1989, the North Carolina General Assembly likewise re-ratified the amendment, having first adopted it two centuries earlier in 1789.

Under the U.S. Supreme Court's landmark decision in Coleman v. Miller, 307 U.S. 433 (1939), any proposed amendment, which has been submitted to the states for ratification and does not specify a ratification deadline, may be ratified by the states at any time. In Coleman, the Supreme Court further ruled that the ratification of a constitutional amendment is political in nature—and so not a matter properly assigned to the judiciary.

Certification and Congressional acceptance of ratification

On May 18, 1992, the amendment was officially certified by Archivist of the United States Don W. Wilson. On May 19, 1992, it was printed in the Federal Register, together with the certificate of ratification.[1]

Speaker of the House Tom Foley and others called for a legal challenge to the amendment's unusual ratification. However, the Coleman ruling made clear that only the Congress has the authority to determine whether an amendment has—or has not—been properly made part of the Constitution, because that is a "political question".

In certifying that the amendment had been validly ratified, the Archivist of the United States had acted under statutory authority granted to his office by the Congress under Title 1, section 106b of the United States Code, which states:

“ Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. ”

Despite that, Senator Robert Byrd of West Virginia scolded Wilson for having certified the amendment without Congressional approval. Although Byrd supported Congressional acceptance of the amendment, he contended that Wilson had deviated from "historic tradition" by not waiting for Congress to consider the validity of the ratification, given the more than 202 year lapse since the Amendment had been proposed.[1]

On May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent first established regarding the ratification of the Fourteenth Amendment, each house of the 102nd Congress passed a version of a concurrent resolution agreeing that the amendment was validly ratified, despite the unorthodox period of more than 202 years for the completion of the task. However, neither version was adopted by the entire Congress.

Ratification dates

The Congress proposed this amendment on September 25, 1789 and the following states ratified the amendment:[2]

  1. Maryland (December 19, 1789)
  2. North Carolina (December 22, 1789, re-ratified in 1989)
  3. South Carolina (January 19, 1790)
  4. Delaware (January 28, 1790)
  5. Vermont (November 3, 1791)
  6. Virginia (December 15, 1791)
  7. Kentucky (1792, re-ratified in 1996)
  8. Ohio (May 6, 1873)
  9. Wyoming (March 6, 1978)
  10. Maine (April 27, 1983)
  11. Colorado (April 22, 1984)
  12. South Dakota (February 21, 1985)
  13. New Hampshire (March 7, 1985)
  14. Arizona (April 3, 1985)
  15. Tennessee (May 23, 1985)
  16. Oklahoma (July 1, 1985)
  17. New Mexico (February 14, 1986)
  18. Indiana (February 24, 1986)
  19. Utah (February 25, 1986)
  20. Arkansas (March 6, 1987)
  21. Montana (March 17, 1987)
  22. Connecticut (May 13, 1987)
  23. Wisconsin (July 15, 1987)
  24. Georgia (February 2, 1988)
  25. West Virginia (March 10, 1988)
  26. Louisiana (July 7, 1988)
  27. Iowa (February 9, 1989)
  28. Idaho (March 23, 1989)
  29. Nevada (April 26, 1989)
  30. Alaska (May 6, 1989)
  31. Oregon (May 19, 1989)
  32. Minnesota (May 22, 1989)
  33. Texas (May 25, 1989)
  34. Kansas (April 5, 1990)
  35. Florida (May 31, 1990)
  36. North Dakota (March 25, 1991)
  37. Missouri (May 5, 1992)
  38. Alabama (May 5, 1992)

Ratification was completed on May 5, 1992. The amendment was subsequently ratified by the following states:

  1. Michigan (May 7, 1992)
  2. New Jersey (May 7, 1992)
  3. Illinois (May 12, 1992)
  4. California (June 26, 1992)
  5. Rhode Island (June 10, 1993)
  6. Hawaii (April 26, 1994)
  7. Washington (August 12, 1995)

The following states have not ratified the amendment:

  1. Massachusetts
  2. Mississippi
  3. Nebraska
  4. New York
  5. Pennsylvania

Cost of living adjustments

Congressional cost of living adjustments (COLAs) have been upheld against legal challenges based on this amendment. In Boehner v. Anderson,[3] the United States Court of Appeals for the District of Columbia Circuit ruled that the Twenty-seventh Amendment does not affect annual COLAs. In Schaffer v. Clinton,[4] the United States Court of Appeals for the Tenth Circuit ruled that receiving such a COLA does not grant members of the Congress standing in federal court to challenge that COLA; the Supreme Court did not hear either case and so has never ruled on this amendment's effect on such COLAs.

Sources

References

  1. ^ a b Michaelis, Laura (May 23, 1992). "Both Chambers Rush to Accept 27th Amendment on Salaries". Congressional Quarterly: p. 1423. 
  2. ^ Mount, Steve (April 16, 2007). "Ratification of Constitutional Amendments". http://www.usconstitution.net/constamrat.html. Retrieved 2007-02-24. 
  3. ^ 30 F.3d 156 (D.C. Cir. 1994)
  4. ^ 240 F.3d 878 (10th Cir. 2001)

See also

External links

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