Twenty-seventh Amendment to the United States Constitution
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The Twenty-seventh Amendment (Amendment XXVII) prohibits any law that increases or decreases the salary of members of Congress from taking effect until the start of the next set of terms of office for Representatives. It is the most recent amendment to the United States Constitution. It was submitted to the states for ratification in September 1789 and became part of the United States Constitution in May 1992, a record setting period of 202 years, 7 months and 12 days.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The Twenty-seventh Amendment, also known as "Article the Second" of the Bill of Rights as proposed by the Congress, provides that any change in congressional salaries may take effect only after the intervention of the next election of members of the United States House of Representatives, which occurs in November of even-numbered years. It was intended as an addition to Article I, Section 6, Clause 1 of the Constitution,
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.
and thus serves as a restraint on the power of Congress to set its own salary, without any accountability to the electorate.
Several states raised this concern as they debated whether or not to ratify the 1787 Constitution. The North Carolina ratifying convention requested the following amendment, among others, be made to the Constitution:
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.
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.
Proposal and ratification
The first hundred years
Introduced in the United States House of Representatives by Representative James Madison of Virginia in June 1789, the amendment (then known as Article the Second) was submitted by the First Congress to the several states along with eleven other proposed constitutional amendments on September 25, 1789, when they passed in the Senate, having been approved by the House the previous day. Ten of these proposals were ratified fifteen months later and are known collectively as the Bill of Rights (one, Article the First is still technically pending before the states).
From 1789 to 1791, the amendment was ratified by the legislatures of only six states—Maryland, North Carolina, South Carolina, Delaware, Vermont and Virginia —ten being required at the time. 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.
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.
The proposed amendment was ratified by Wyoming in 1978 as a protest to a congressional pay raise, but the proposed amendment was largely forgotten before University of Texas at Austin undergraduate student Gregory Watson wrote a paper on the subject in 1982. Despite receiving a 'C' grade on his paper by an instructor who deemed his idea 'unrealistic', Watson started a new push for ratification with a letter-writing campaign to state legislatures.
At the time Watson commenced his campaign in early 1982, he was aware of ratifications by only six states and he erroneously believed that Virginia's 1791 approval was the last action taken within the states. He learned in July 1983 that Ohio had approved it in 1873 and he learned in November 1984 that Wyoming did the same thing in 1978. Further, he did not know until 1997, some five years after ratification was completed, that Kentucky offered its ratification of the amendment in 1792. The first legislature to ratify as a result of Watson's campaign was Maine in April 1983, followed by Colorado in April 1984. Numerous state legislatures followed suit, and the ratification by Michigan on May 7, 1992 provided the 38th state ratification (Kentucky's 1792 ratification having been missed) required for the archivist to certify the amendment.
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.
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.
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 its own 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. Neither version was adopted by the entire Congress.
There is some conflict as to the exact ratification dates of the amendment. In some cases, a state's ratification resolution was signed by legislative officers before that state's second house had acted. In other cases, several governors subsequently "approved" the resolutions, even though gubernatorial action is not required by Article V (which requires ratification only by state legislatures or state conventions). Many state legislative journals are unavailable.
The following states ratified the Twenty-seventh Amendment, making it valid to all intents and purposes part of the Constitution:
- Maryland (December 19, 1789)
- North Carolina (December 22, 1789; July 4, 1989)
- South Carolina (January 19, 1790)
- Delaware (January 28, 1790)
- Vermont (November 3, 1791)
- Virginia (December 15, 1791)
- Kentucky (June 27, 1792; March 21, 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 28, 1985)
- Oklahoma (July 1, 1985)
- New Mexico (February 14, 1986)
- Indiana (February 24, 1986)
- Utah (February 25, 1986)
- Arkansas (March 13, 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)
- Michigan (May 7, 1992)
- New Jersey (May 7, 1992)
- Illinois (May 12, 1992)
On May 18, 1992, the Archivist of the United States certified that the amendment's ratification was completed on May 7, 1992, with Michigan being the 38th state to ratify. It later came to light that the Kentucky General Assembly had ratified all 12 amendments during that state's initial month of statehood, technically making Alabama the 38th state to ratify the amendment and finalize its addition to the Constitution. Nonetheless, the federal government's official record still holds that Michigan was the 38th state to ratify the amendment.
Subsequently the amendment was ratified by:
- California (June 26, 1992)
- Rhode Island (June 10, 1993)
- Hawaii (April 29, 1994)
- Washington (April 6, 1995)
- Kentucky (March 21, 1996)
Cost of living adjustments
Congressional cost of living adjustments (COLA) have been upheld against legal challenges based on this amendment. In Boehner v. Anderson, 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, 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 COLAs.
- 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: United States Government Printing Office.
- Dean, John (2002). "The Telling Tale of the Twenty Seventh Amendment". FindLaw's Writ. FindLaw. Retrieved August 27, 2005. Includes an interview with Gregory Watson.
- Bernstein. The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment.
- List of amendments to the United States Constitution
- List of proposed amendments to the United States Constitution
- United States Bill of Rights
- Ratification time span calculated at http://www.timeanddate.com/date/duration.html
- United States House of Representatives. "Historical Highlights The 27th Amendment". history.house.gov.
- Jol A. Silversmith (April 1999), "The "Missing Thirteenth Amendment": Constitutional Nonsense and Titles of Nobility", Southern California Interdisciplinary Law Journal 8: 577
- Dean, John W. (September 27, 2002). "The Telling Tale of the Twenty-Seventh Amendment". FindLaw. Retrieved July 9, 2013.
- Bernstein, Richard B. (1992). "The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment". Fordham Law Review 61 (3): 497–557. Retrieved June 9, 2013.
- Frantzich, Stephen E. (2008). Citizen Democracy: Political Activists in a Cynical Age (3rd ed.). New York: Rowman & Littlefield. pp. 12–14. ISBN 9780742564459.
- "27: Congressional pay raises". Pittsburgh Post-Gazette. November 27, 2002. Retrieved July 9, 2013.
- Michaelis, Laura (May 23, 1992). "Both Chambers Rush to Accept 27th Amendment on Salaries". Congressional Quarterly. p. 1423.
- The Constitution of the United States as Amended, (House Document No. 110-50, Government Printing Office), Article XXVII, pp. 26-27.
- North Carolina General Assembly House Bill 1052 / S.L. 1989-572
- "THE ORGANIC LAWS OF THE UNITED STATES OF AMERICA". Retrieved 5 December 2010.
- Congressional Record of the 102nd Congress, Volume 138 - Part 9, May 19, 1992, p. 11656.
- Kentucky Original Acts of 1792, Chapter XVII, pp. 25-27. This book is in the Kentucky State Law Library.
- Alabama and Missouri both ratified the amendment on May 5, 1992, but the Archivist of the United States notified both states on May 27, 1992, that Alabama was the 36th and Missouri the 37th state to ratify the amendment. These letters are held by the National Archives and Records Administration.
- Constitutional Pay Amendment, Dept. of Justice, Ops. 16 of the Office of Legal Council, May 13, 1992.)
- 30 F.3d 156 (D.C. Cir. 1994)
- 240 F.3d 878 (10th Cir. 2001)
- The Constitution of the United States of America: Analysis and Interpretation is available at:
- National Archives: Twenty seventh Amendment
- S.Con.Res. 120
- H.Con.Res. 320
- Memorandum Opinions for the Counsel to the President opining that the Archivist was required to certify the amendment as part of the Constitution (May 13, 1992; November 2, 1992)
- Certification of the 27th Amendment at National Archives Online Public Access