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 1 of the certification of Amendment XXVII in the National Archives
Page 2 of the amendment's certification
Page 2 of the amendment's certification
Page 3 of the amendment's certification
Page 3 of the amendment's certification
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The Twenty-seventh Amendment (Amendment XXVII) is the most recent amendment to the United States Constitution, having been ratified in 1992, 202½ years after its initial submission in 1789.

Contents

[edit] 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. ”

[edit] 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 ratification. The ratification issues are considered below.

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 United States Court of Appeals for the District of Columbia Circuit ruled that the amendment does not affect annual Congressional COLAs. 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 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.

[edit] Proposal and ratification

[edit] 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 First 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.

[edit] 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 Twenty seventh 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 Supreme Court further ruled that the ratification of a constitutional amendment was a political question.

[edit] 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, together with the certificate of ratification.[1]

Notwithstanding the Coleman v. Miller decision, Speaker of the House Tom Foley and others called for a legal challenge to the amendment's irregular 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. 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.

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. Up to 1951, the Secretary of State was the federal authority vested by the Congress with authority to receive from the States the documents regarding the ratification of constitutional amendments and to issue the certificate announcing the ratification when the required number of ratifying states was achieved. In 1951, that authority was transferred to the Administrator of General Services, and, in 1984, the statute was amended to vest that authority in the Archivist of the United States. Title 1, section 106b of the United States Code reads:

“ "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". ”

Thus, in certifying the ratification of the Amendment forthwith, Wilson had acted in accordance with the requirements of the law, and under the legal authority delegated to his office by Congress.

Despite that, Robert Byrd of West Virginia, who was then President pro tempore of the United States Senate, 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 202½ year lapse since the Amendment had been proposed.[1]

In accordance with the Coleman ruling—and in keeping with the precedent first established in the 1868 ratification of the Fourteenth Amendment—both houses of the 102nd Congress, on May 20, 1992, acting separately, adopted concurrent resolutions agreeing that the amendment was indeed validly ratified, despite the unorthodox period of 202½ years for the completion of the task. Neither body, however, adopted the concurrent resolution of the other.

[edit] Ratification dates

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

  1. Maryland (December 19, 1789)
  2. North Carolina (December 22, 1789, reaffirmed 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, reaffirmed 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 10, 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)

[edit] States that did not ratify

 This section does not cite any references or sources. (May 2008)
Please help improve this section by adding citations to reliable sources. Unverifiable material may be challenged and removed.

The Pennsylvania House of Representatives approved the amendment on January 28, 1992, but the legislation died in committee in the Pennsylvania State 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 specifically requested a similar amendment during New York's 1788 convention.

[edit] 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.[3] 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.

[edit] Court cases

There have been only a few cases litigated in the Federal courts which pertain to the Twenty seventh 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).

[edit] 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.
  • Dean, John (2002). The Telling Tale of the Twenty Seventh Amendment. Findlaw's Writ. Eagan, Minnesota: Findlaw. Retrieved on August 27, 2005. Includes an interview with Gregory Watson.
  • Bernstein. The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment.

[edit] References

  1. ^ a b Michaelis, Laura. "Both Chambers Rush to Accept 27th Amendment on Salaries", Congressional Quarterly, May 23, 1992, p. 1423. 
  2. ^ Mount, Steve (16 April 2007). Ratification of Constitutional Amendments. Retrieved on 2007-02-24.
  3. ^ Straight Dope staff (June 20, 2006). "What's up with the 27th Amendment to the U.S. Constitution?". The Straight Dope. Retrieved on 2007-06-12.

[edit] See also

[edit] External links


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