A Staff Report from the Straight Dope Science Advisory Board

What's up with the 27th Amendment to the U.S. Constitution?

June 20, 2006

Dear Straight Dope:

What's up with the 27th Amendment to the Constitution, the one about congressional salaries? Why did it take more than 200 years to ratify? What did the states that didn't ratify it way back when have against it? And what does it mean to me now? While we're on the subject, when an amendment is added to the Constitution, does someone literally amend the Constitution? I assume they don't really write it at the bottom of the original document, but does anyone trace it out in that fancy calligraphy on another sheet and stick it under the original Constitution (no stapling, though) over at the National Archives?

Let's start with the easy part. Section 106b of Title 1 of the United States Code says:

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.

So the National Archivist must publish the amendment with a certificate that gives the particulars of adoption. The National Archivist did exactly that with the 27th Amendment. The National Archivist is also required to publish constitutional amendments in a book called Statutes at Large, according to 1 U.S.C. §112.

If you want to see the 27th in its original form, though, take a look at the Bill of Rights in high resolution on the National Archives site. As you know, it was the second article in that document. It says:

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 amendment prevents Congress from raising its current pay--increases can only take effect after an election of Representatives, at which time the voters will have a chance to register their approval or disgust. According to Richard Bernstein, writing in the Fordham Law Review, the clause was meant to amend Article I, Section 6, Clause 1 of the United States Constitution, which says, "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."

The reason the latter clause is in there is a story in itself. Delegates to the Continental Congresses had been paid by the state legislatures that sent them. There were problems with this practice, according to Bernstein:

First, state legislatures continued the practice, honored by tradition, of using their control on the purse strings to punish Congress for ignoring their state's interests, and this fiscal war of nerves extended to the pay of state delegations. Second, as the nation's economy worsened during and after the American Revolution, expenses closer to home assumed a greater importance for tight-fisted state legislators than expenses of a far-off and less relevant Confederation. In either case, the effect was the same: delegates to the Continental and Confederation Congresses had to wait longer and longer to be paid--if they were paid at all. Even those delegates who had independent means, and thus did not rely on the small salaries paid by the states, did not accept this situation lightly. Notable American politicians began to write scathing letters to their home states, demanding to know how long they were to serve their country without being paid for it.

The issue came up at the Federal Convention when James Madison's Virginia Plan proposed that the federal government pay members of Congress. Debate ensued about the merits of state vs. federal payment and, if federal, whether salaries should vary by state. Delegates considered various methods of calculating pay but couldn't reach a consensus. In the end they agreed to require the Treasury to pay salaries but left the amount to be determined by future Congresses.

During the ratification debates, Anti-Federalists criticized the new Constitution for arrogating power to the federal government at the expense of individual and state rights. The compensation clause was a convenient target in this respect. According to Bernstein:

Several Anti-Federalist strategists and polemicists saw the compensation clause as a useful peg on which to hang what modern political analysts call "red-meat" arguments designed to provoke visceral responses against the Constitution. For example, on June 14, 1788, Patrick Henry turned the full force of his derisive oratory in the Virginia ratifying convention against the compensation clause. In his reply, James Madison was hard-pressed to defend the clause, conceding the apparent impropriety of permitting the legislators to determine their own rate of compensation and halfway acknowledging the necessity and appropriateness of amending the clause.

When the First Congress met, it considered many recommendations for amendments. These were eventually reduced to a list of twelve, among them the compensation amendment demanded by Virginia, New York, and North Carolina. Engrossed on parchment, this became the Bill of Rights, approved by congressional resolution and sent to the states on September 26, 1789.

Ten of the proposed amendments were ratified by enough states to become part of the Constitution. The compensation amendment was not among them. It was adopted by six states and rejected by five.

Congressional pay remained controversial for the next two centuries. In "The Telling Tale Of The Twenty-Seventh Amendment: A Sleeping Amendment Concerning Congressional Compensation Is Later Revived," John Dean writes, "The First Congress experienced bitter and divisive debates over Congressional salaries. Sadly, the intervening two centuries have not much improved the debate." Ohio ratified the amendment in 1873, after Congress gave itself a retroactive pay raise of fifty percent, an event called the Pay Grab of 1873. Wyoming did likewise 105 years later in opposition to a similar pay raise.

Notwithstanding these occasional stirrings of interest, the amendment was largely forgotten until 1982, when Gregory Watson, an economics student at the University of Texas at Austin, ran across it while looking for a research topic. Watson wrote a paper arguing that because the amendment did not include a time limit for ratification, it was still in play. He got a C.

Convinced he was right, Watson began a campaign to ratify the amendment. Maine was the first state to ratify the amendment in response to Watson's campaign, in 1983. Colorado followed suit in 1984. By March 1989, twenty-seven of the required thirty-eight states had ratified. Michigan provided the thirty-eighth ratification in 1992.

Whether ratification was effective when spread out over centuries remained an open question. Did proposed amendments expire? The Supreme Court, in Dillon v. Gloss, had said Congress could fix a reasonable time for ratification of a proposed amendment, and that the absence of a deadline didn't mean that "an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective." But the Court, in Coleman v. Miller, also said it was up to Congress to decide how long was too long. The Office of Legal Counsel pronounced the ratifications valid, saying it found arguments to the contrary in  Dillon unpersuasive and noting that the Court had never actually held that an amendment had to be ratified within a certain time absent a specified limit. While the opinion wasn't universally accepted, the National Archivist, Don W. Wilson, certified on May 18, 1992 that the state resolutions collectively met the requirements of Article V of the Constitution and that the amendment consequently had been ratified. Some Senators claimed that Congress could still determine that the ratifications were ineffective but found no interest in doing so. On May 20, 1992, the House and Senate both resolved that the ratifications were valid and the 27th Amendment has been considered part of the Constitution since.

The Amendment has had little practical effect. Congress relies on the current system providing for cost of living adjustments. The law permitting such adjustments was passed before Michigan ratified the 27th Amendment, and courts have held that in any case the law complies with the amendment because it didn't take effect until after an intervening election. No serious challenge to the Amendment itself has been mounted in the courts and none is expected--the Supreme Court has already said the validity of a delayed ratification is a political question to be decided by Congress, not the courts. Nor is the issue likely to arise again. Since the proposal for the Twentieth Amendment, all proposed amendments have included a time limit.

References

"27: Congressional Pay Raises," Post-Gazette.com, November 27, 2002: http://www.post-gazette.com/nation/20021127amendment_27p9.asp

Alston, Lee et al., "Who Should Govern Congress? Access to Power and the Salary Grab of 1873," University of Colorado at Boulder, Institute of Behavioral Science, Working Paper, December 2005: http://www.colorado.edu/ibs/pubs/eb/eb2005-0009.pdf  

Bernstein, Richard, "The Sleeper Wakes: The History and Legacy of the Twenty- Seventh Amendment," 61 Ford. L. Rev. 497 (1992)

Coleman v. Miller, 307 U.S. 433 (1939): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=433

"The Charters of Freedom: A New World is at Hand," National Archives: http://www.archives.gov/national-archives-experience/charters/charters_downloads.html

"The Congressional Pay Amendment," 16 Opinions of the Office of Legal Counsel, U.S. Dept. of Justice 102, App. at 127-136 (1992): http://www.usdoj.gov/olc/congress.17.htm

"The Constitutional Amendment Process," Federal Register, Archives.gov: http://www.archives.gov/federal-register/constitution/

Dean, John, "The Telling Tale Of The Twenty-Seventh Amendment: A Sleeping Amendment Concerning Congressional Compensation Is Later Revived," Findlaw.com, September 27, 2002: http://writ.news.findlaw.com/dean/20020927.html

Dillon v. Gloss, 256 U.S. 368 (1921): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=256&invol=368

Eastman, John, "The Forgotten, Newest Amendment: Is It Already A Dead Letter?" The Claremont Institute, October 22, 2001: http://www.claremont.org/projects/jurisprudence/011022eastman.html

First Twelve Articles of Amendment, The U.S. Constitution Online: http://www.usconstitution.net/first12.html

Lynch, Michael, "The Other Amendments: Constitutional Amendments that Failed," 93 Law Library Journal 303 (2001): http://www.aallnet.org/products/2001_14.pdf

Roddy, Dennis and Beale, John, "The Constitution's 27 Amendments: The Ways We Embrace Their Spirit Every Day," Post-Gazette.com, November 27, 2002: http://www.post-gazette.com/nation/20021127constitutionp3.asp

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