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Amendment XXVII (the Twenty-seventh Amendment) is the most recent amendment to be incorporated into the
United States Constitution, having been ratified in 1992, more than 202 years after its initial submission in 1789.
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
This amendment to the United States Constitution provides that any change in
the salary of members of United States Congress
may only take effect after the next general election. 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.
It, however, was ratified by only six States (out of the eleven needed), and it was rejected by five States. Aside from the
idiosyncratic action of the Ohio legislature in 1873, which ratified the proposal in protest of a controversial pay increase
adopted by Congress, the pay limitation provision lay dormant until the 1980s. Then, an aide to a Texas legislator discovered the
proposal and began a crusade that culminated some ten years later in its proclaimed ratification.[1].
Since its 1992 adoption, however, this amendment has not hindered members of Congress from receiving nearly annual pay raises,
characterized as "cost-of-living adjustments" (COLAs), rather than as pay raises in
the traditional sense of the term. The United States Supreme Court
has refused certiorari for a lawsuit challenging Congress's COLAs as unconstitutional,
stating that the citizens bringing the lawsuit had no legal standing for bringing the
lawsuit, as they had not proved they were personally harmed by the COLAs. Hence, members of Congress have been able to obtain
increases in compensation without triggering the restrictions which this amendment seeks to impose. It should be pointed out that
it is Congress that determines whether federal judges will receive an increase in their salaries—the only limitation being
that Congress is forbidden to ever reduce judicial compensation. Additionally, retirement benefits of federal judges are
linked with those of members of Congress. In the case of Schaffer v. Clinton (2001), the District of Columbia Circuit Court of Appeals ruled that the 27th Amendment does
not affect annual Congressional Cost of Living Increases (COLI). The United
States Supreme Court, however, has never ruled on this specific issue.
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 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—future fourth President of the United States—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. The first proposed amendment of the package of
twelve pertains to reapportionment of the United States House of Representatives following each decennial census and,
technically, it is still pending before the state legislatures for consideration because Article V of the Constitution does not itself make any explicit reference
as to what length of time a proposed constitutional amendment may be pending in the ratification process. It is very unlikely,
however, that the reapportionment proposal will ever be ratified by lawmakers in a sufficient number of states.
From 1789 to 1791, the compensation proposal was ratified by legislators in 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". This act not only provided for a Congressional pay raise, but made that raise retroactive.
Ratification completed
The proposed amendment was again largely forgotten until 1982, when University
of Texas at Austin student Gregory Watson rediscovered it. The push for
ratification began in earnest and the amendment was finally ratified a decade later on May 5,
1992, when it was approved by the legislature of Alabama, the 38th
state to assent, there being 50 states in the Union at the time. At that point, it became the Constitution's 27th Amendment.
Under the 1939 ruling of the U.S. Supreme Court in the landmark case of Coleman v.
Miller, any proposed amendment for which Congress does not specify a ratification deadline remains pending business
before the states and the states may continue to consider that amendment regardless of that amendment's age. In Coleman,
the high Court further ruled that the ratification of a constitutional amendment is political in nature—and not a matter properly
assigned to the judiciary.
For quite some time, it had been erroneously believed that ratification on May 7,
1992, by the Michigan Legislature propelled the 27th
Amendment into the U.S. Constitution. However, when the June 1792 ratification of all twelve
amendments by the Kentucky General Assembly during that commonwealth's initial
month of statehood later came to light, it was quickly realized that the 27th Amendment's incorporation into the Constitution was
actually finalized two days earlier than previously thought—and by the state (Alabama) whose legislature had acted immediately
before Michigan's. Possibly unaware of the ratification actions taken in 1792, Kentucky lawmakers ceremonially approved the
amendment a second time, nearly 204 years later in 1996, and almost four years after the amendment
had already been made part of the nation's highest legal document. In 1989, the North Carolina General Assembly likewise re-ratified the amendment, having first adopted
it two centuries earlier in 1789.
Certification and Congressional acceptance of ratification
On May 18, 1992, the Amendment was officially certified by
Don W. Wilson, then-Archivist of the
United States. On May 19, 1992, it was printed in the
Federal Register.[2]
Notwithstanding the Coleman v. Miller decision, Speaker of the House
Tom Foley and others called for a legal challenge to the 27th Amendment's irregular
ratification. However, the Coleman ruling made clear that only Congress has the authority to determine whether an
amendment has—or has not—been properly made part of the Constitution. The courts would not involve themselves in such a
"political question", the justices asserted. Because Congressional opposition to
ratification would be perceived as little more than self-interest, reaction on Capitol
Hill was silenced.
However, Robert Byrd of West Virginia,
then-President Pro Tempore of the U.S. Senate, scolded
Wilson for having certified the Amendment without Congressional approval. Although Byrd supported Congressional acceptance of the
27th Amendment, he contended that Wilson had deviated from "historic tradition" by not waiting for Congress to consider the
validity of the ratification, given the 202½-year lapse since the Amendment had been proposed.[2]
In accordance with the Coleman ruling—and in keeping with the precedent first established in the 1868 ratification of
the 14th Amendment—both houses of the 102nd
Congress, on May 20, 1992, acting separately, adopted
concurrent resolutions agreeing that the 27th Amendment was indeed validly
ratified, despite the unorthodox period of more than 200 years for the completion of the task. Neither body, however, adopted the
concurrent resolution of the other.
Ratification dates
Congress proposed the Twenty-seventh Amendment on September 25, 1789.[3] The following
states ratified the amendment:
- Maryland (December 19, 1789)
- North Carolina (December 22, 1789, reaffirmed in 1989)
- South Carolina (January 19, 1790)
- Delaware (January 28, 1790)
- Vermont (November 3, 1791)
- Virginia (December 15, 1791)
- Kentucky (1792, reaffirmed in 1996)
- Ohio (May 6, 1873)
- Wyoming (March 6, 1978)
- Maine (April 27, 1983)
- Colorado (April 22, 1984)
- South Dakota (February 21, 1985)
- New Hampshire (March 7, 1985)
- Arizona (April 3, 1985)
- Tennessee (May 23, 1985)
- Oklahoma (July 10, 1985)
- New Mexico (February 14, 1986)
- Indiana (February 24, 1986)
- Utah (February 25, 1986)
- Arkansas (March 6, 1987)
- Montana (March 17, 1987)
- Connecticut (May 13, 1987)
- Wisconsin (July 15, 1987)
- Georgia (February 2, 1988)
- West Virginia (March 10, 1988)
- Louisiana (July 7, 1988)
- Iowa (February 9, 1989)
- Idaho (March 23, 1989)
- Nevada (April 26, 1989)
- Alaska (May 6, 1989)
- Oregon (May 19, 1989)
- Minnesota (May 22, 1989)
- Texas (May 25, 1989)
- Kansas (April 5, 1990)
- Florida (May 31, 1990)
- North Dakota (March 25, 1991)
- Missouri (May 5, 1992)
- Alabama (May 5, 1992)
Ratification was completed on May 5, 1992. The amendment was
subsequently ratified by the following states:
- Michigan (May 7, 1992)
- New Jersey (May 7, 1992)
- Illinois (May 12, 1992)
- California (June 26, 1992)
- Rhode Island (June 10, 1993)
- Hawaii (1994)
- Washington (1995)
States that did not ratify
The Pennsylvania House of Representatives approved the
amendment on January 28, 1992, but the legislation died in
committee in the Pennsylvania Senate. The legislatures of Massachusetts,
Mississippi, Nebraska, and New York also did not ratify
the amendment. New York lawmakers rejected the amendment on February 27, 1790 and Nebraska legislators rejected it in 1987. New York's failure to ratify is interesting to some observers in
that New York was among those states that had specifically requested a similar amendment just two years earlier during New York's
aforementioned 1788 convention.
Failure to be ratified in the 1700s
Why the amendment was not originally ratified is the subject of speculation. One theory is that it was a states' rights
issue.[4] Some of the states wanted
the amendment as a means to control Congress while others argued that this should be left to the federal government. Debates on
states' rights issues sometimes overshadowed other important governmental business, so discussion on the amendment was repeatedly
delayed until it was simply forgotten.
Court cases
There have been only a few cases litigated in the Federal courts which pertain to the 27th Amendment since its 1992 adoption.
Those cases are:
- Boehner v. Anderson, 809 F. Supp. 138 (D.D.C. 1992), aff'd, 30
F.3d 156 (D.C. Cir. 1994);
- Operation Rescue Nat'l v. United States, 975 F. Supp. 92 (D. Mass. 1997),
aff'd, 147 F.3d 68 (1st Cir. 1998); and
- Schaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999), aff'd on other grounds, 240 F.3d 878 (10th Cir. 2001).
Sources
- Congressional Research Service. (1992). The Constitution of the United States of America: Analysis and Interpretation.
(Senate Document No. 103–6). (Johnny H. Killian and George A. Costello, Eds.). Washington, DC: U.S. Government Printing
Office.
References
See also
External links
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