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Twenty-seventh Amendment to the United States Constitution

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The Twenty-seventh Amendment (Amendment XXVII) to the United States Constitution 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. It was submitted by Congress to the states for ratification on September 25, 1789. The amendment became part of the United States Constitution on May 7, 1992, following a record-setting ratification period of 202 years, 7 months, and 12 days.[1][2]

Text

The amendment as proposed by Congress in 1789 reads as follows:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.[3]

Background

Several states raised the issue of Congressional salaries as they debated whether to ratify the 1787 Constitution.

The North Carolina ratifying convention proposed several amendments to the Constitution including the following: "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's ratifying convention recommended the identical amendment.

New York's declaration of ratification was accompanied by a similar amendment proposal: "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

Proposal by Congress

This amendment was one of several proposed amendments to the Constitution introduced first in the House on June 8, 1789, by Representative James Madison of Virginia. Madison's original intent was that it be added to the end of the first sentence in 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".[4] This, along with Madison's other proposals were referred to a committee consisting of one representative from each state. After emerging from committee, the full House debated the issue and, on August 24, 1789, passed it and sixteen other articles of amendment. The proposals went next to the Senate, which made 26 substantive alterations. On September 9, 1789, the Senate approved a culled and consolidated package of twelve articles of amendment.[5] Nothing was changed in this amendment.

On September 21, 1789, a House–Senate conference committee convened to resolve numerous differences between the House and Senate Bill of Rights proposals. On September 24, 1789, the committee issued its report, which finalized 12 proposed amendments for the House and Senate to consider. The House agreed to the conference report that same day, and the Senate concurred the next day.[6]

Ratification by the states

  Ratified amendment, 1789–92
  Ratified amendment, 1873
  Ratified amendment, 1978–91
  Ratified amendment, May 19921
  Ratified amendment post-enactment, 1992–95
  Ratified amendment twice (NC: 1789/1989; KY: 1792/1996)
  Haven't ratified amendment
1The Archivist did not certify the amendment until May 18, 1992, with 40 states listed as ratifying the amendment. Kentucky's then-unknown 1792 ratification would have made it 41 states that had ratified at the time of certification, 3 more than the 38 required for a three-quarters majority.

What would become the Twenty-seventh Amendment was listed second among the twelve proposals sent to the states for their consideration on September 25, 1789. Ten of these, numbers 3–12, were ratified fifteen months later and are known collectively as the Bill of Rights. The remaining proposal, the Congressional Apportionment Amendment, has not been ratified by enough states for it to come into force, and remains technically pending before the states.

There is some conflict as to the exact ratification dates of the Twenty-seventh 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 of the Constitution, which assigns ratification responsibility to either—as determined by Congress—state legislatures or state ratifying conventions. Additionally, many 18th century state legislative journals are unavailable.[7]

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 following states ratified this article, making it part of the Constitution:

  1. Maryland – December 19, 1789
  2. North Carolina – December 22, 1789 (reaffirmed July 4, 1989[8])
  3. South Carolina – January 19, 1790
  4. Delaware – January 28, 1790
  5. Vermont – November 3, 1791
  6. Virginia – December 15, 1791
  7. Kentucky – June 27, 1792 (reaffirmed March 21, 1996)
  8. Ohio – May 6, 1873 (as a means of protest against the 1873 "Salary Grab Act"[9])
  9. Wyoming – March 6, 1978 (as a protest against a congressional pay raise[10])
  10. Maine – April 27, 1983
  11. Colorado – April 22, 1984
  12. South Dakota – February 21, 1985
  13. New Hampshire – March 7, 1985 (after rejection – January 26, 1790[11])
  14. Arizona – April 3, 1985
  15. Tennessee – May 28, 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 13, 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. Alabama – May 5, 1992
  38. Missouri – May 5, 1992
  39. Michigan – May 7, 1992

On May 18, 1992, the Archivist of the United States, Don W. Wilson, certified that the amendment's ratification was completed on May 7, 1992, with Michigan being the 38th state to ratify.[12] The certification was officially recorded the next day in the Federal Register.[13] It later came to light that the Kentucky General Assembly had ratified all 12 amendments during that state's initial month of statehood,[14] technically making Missouri the 38th state to ratify the amendment and finalize its addition to the Constitution.[15] Nonetheless, the federal government's official record still holds that Michigan was the 38th state to ratify the amendment.[7][12][16]

The Twenty-seventh Amendment was also ratified by:

40. New Jersey – May 7, 1992 (After rejection – November 20, 1789[11])
41. Illinois – May 12, 1992
42. California – June 26, 1992
43. Rhode Island – June 10, 1993[17] (After rejection – June 7, 1790[11])
44. Hawaii – April 29, 1994[17]
45. Washington – April 6, 1995[17]

Five states have not ratified the Twenty-seventh Amendment: Massachusetts, Mississippi, Nebraska, New York, and Pennsylvania.

Revival of interest

This proposed amendment was largely forgotten until Gregory Watson, an undergraduate student at the University of Texas at Austin, wrote a paper on the subject in 1982.[18] Despite receiving a 'C' grade on his paper, by an instructor who regarded Watson's idea "unrealistic",[19][20] Watson started a new push for ratification with a letter-writing campaign to state legislatures.[9]

When Watson began his campaign in early 1982, he was aware of ratification by six states and he erroneously believed that Virginia's 1791 approval was the last action taken by the states. He learned in 1983 that Ohio had approved it in 1873 and learned in 1984 that Wyoming had done the same in 1978. Watson did not know, until after the amendment's adoption, that Kentucky had ratified the amendment in 1792.

In April 1983, Maine became the first state to ratify the amendment as a result of Watson's campaign, followed by Colorado in April 1984. Numerous state legislatures followed suit. Michigan's ratification on May 7, 1992, provided what was believed to be the 38th state ratification required for the archivist to certify the amendment—Kentucky's 1792 ratification having been overlooked.

Affirmation of ratification

In certifying that the amendment had been duly 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.

The response in Congress was sharp. Senator Robert Byrd of West Virginia scolded Wilson for certifying the amendment as ratified 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 extremely long lapse of time since the amendment had been proposed.[13] Speaker of the House Tom Foley and others called for a legal challenge to the amendment's unusual ratification.

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.

Cost-of-living adjustments

Congressional cost-of-living adjustments (COLA) have been upheld against legal challenges based on this amendment. In Boehner v. Anderson,[21] 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,[22] 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.

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: United States Government Publishing 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.

See also

References

  1. ^ "The Constitution of the United States: Amendments 11-27". Archives.gov. Retrieved 2015-10-29.
  2. ^ Ratification time span calculated at http://www.timeanddate.com/date/duration.html
  3. ^ United States House of Representatives. "Historical Highlights The 27th Amendment". history.house.gov.
  4. ^ Gordon Lloyd. "Madison's Speech Proposing Amendments to the Constitution, June 8, 1789". TeachingAmericanHistory.org. Ashland, Ohio: The Ashbrook Center at Ashland University. Retrieved November 1, 2015.
  5. ^ Labunski, Richard E. (2006). James Madison and the struggle for the Bill of Rights. Oxford University Press. pp. 235–237. ISBN 978-0-19-518105-0.
  6. ^ Schwartz, Bernard (2002). The Great Rights of Mankind: A History of the American Bill of Rights (First Rowman & Littlefield ed.). Lanham, Maryland: Rowman & Littlefield. p. 186. Retrieved June 29, 2014.
  7. ^ a b The Constitution of the United States as Amended, (House Document No. 110-50, Government Printing Office), Article XXVII, pp. 26-27.
  8. ^ North Carolina General Assembly House Bill 1052 / S.L. 1989-572
  9. ^ a b Dean, John W. (September 27, 2002). "The Telling Tale of the Twenty-Seventh Amendment". FindLaw. Retrieved July 9, 2013.
  10. ^ JusticeLearning
  11. ^ a b c James J. Kilpatrick, ed. (1961). The Constitution of the United States and Amendments Thereto. Virginia Commission on Constitutional Government. p. 64.
  12. ^ a b Congressional Record of the 102nd Congress, Volume 138 - Part 9, May 19, 1992, p. 11656.
  13. ^ a b Michaelis, Laura (May 23, 1992). "Both Chambers Rush to Accept 27th Amendment on Salaries". Congressional Quarterly. p. 1423.
  14. ^ Kentucky Original Acts of 1792, Chapter XVII, pp. 25-27. This book is in the Kentucky State Law Library.
  15. ^ 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.
  16. ^ Constitutional Pay Amendment, Dept. of Justice, Ops. 16 of the Office of Legal Council, May 13, 1992.)
  17. ^ a b c "THE ORGANIC LAWS OF THE UNITED STATES OF AMERICA". Retrieved 5 December 2010.
  18. ^ 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.
  19. ^ Frantzich, Stephen E. (2008). Citizen Democracy: Political Activists in a Cynical Age (3rd ed.). New York: Rowman & Littlefield. pp. 12–14. ISBN 9780742564459.
  20. ^ "27: Congressional pay raises". Pittsburgh Post-Gazette. November 27, 2002. Retrieved July 9, 2013.
  21. ^ 30 F.3d 156 (D.C. Cir. 1994)
  22. ^ 240 F.3d 878 (10th Cir. 2001)
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