Twenty-seventh Amendment to the United States Constitution

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Page 1 of the Twenty-seventh Amendment's certification in the National Archives

Page 2 of the amendment's certification

Page 3 of the amendment's certification

The Twenty-seventh Amendment (Amendment XXVII) prohibits any law that increases or decreases the salary of members of the 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, having been ratified in 1992, 203 years after its initial submission to the states for ratification.

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

The Twenty-seventh Amendment provides that any change in Congressional salaries may only take effect after the beginning of the next term of office for Representatives. 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.

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.

Proposal and ratification

The first hundred years

Presented in the United States House of Representatives by Representative James Madison of Virginia, 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.

From 1789 to 1791, the compensation proposal was ratified by the legislatures of 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".^[1] The Salary Grab Act not only provided for a Congressional pay raise, but made that raise retroactive.

Ratification completed

The proposed amendment was ratified by Wyoming in 1978 as a protest to a Congressional pay raise,^[2] 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.^[3] He started a new push for ratification with a letter-writing campaign to state legislatures.^[1]

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.

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.^[4]

Speaker of the House Tom Foley and others called for a legal challenge to the amendment's unusual 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.^[4]

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 a 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. However, neither version was adopted by the entire Congress.

Ratification dates

  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.

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.^[5]

States that ratified pre-certification

The Congress proposed this amendment on September 25, 1789 and the following states ratified the amendment:

1. Maryland (December 19, 1789)
2. North Carolina (December 22, 1789, re-ratified in 1989)^[6]
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; this came to light after the amendment was adopted, as noted in the paragraph at the end of this list.)
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 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)
40. New Jersey (May 7, 1992)
41. Illinois (May 12, 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.^[7] It later came to light that the Kentucky General Assembly had ratified all 12 amendments during that state's initial month of statehood,^[8] technically making Missouri the 38th state to ratify the amendment and finalize its addition to the Constitution.^[9] Nonetheless, the federal government's official record still holds that Michigan was the 38th state to ratify the amendment.^[5][7][10]

States that ratified post-certification

1. California (June 26, 1992)
2. Rhode Island (June 10, 1993)^[11]
3. Hawaii (April 29, 1994)^[11]
4. Washington (April 6, 1995)^[11]

• Kentucky (March 21, 1996)^[11] (re-ratification, had previously ratified on June 27, 1792)

States that have not ratified the amendment

1. Massachusetts
2. Mississippi
3. Nebraska
4. New York
5. Pennsylvania

Cost of living adjustments

Congressional cost of living adjustments (COLAs) have been upheld against legal challenges based on this amendment. In Boehner v. Anderson,^[12] 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,^[13] 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 Printing Office.
• Dean, John (2002). "The Telling Tale of the Twenty Seventh Amendment". FindLaw's Writ. FindLaw. http://writ.news.findlaw.com/dean/20020927.html. 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

• List of amendments to the United States Constitution
• List of proposed amendments to the United States Constitution
• United States Bill of Rights

References

1. ^ ^{a b} Dean, John W. The Telling Tale of the Twenty-Seventh Amendment
2. ^ JusticeLearning
3. ^ Bernstein, Richard B. Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment.
4. ^ ^{a b} Michaelis, Laura (May 23, 1992). "Both Chambers Rush to Accept 27th Amendment on Salaries". Congressional Quarterly: p. 1423. 
5. ^ ^{a b} The Constitution of the United States as Amended, (House Document No. 110-50, Government Printing Office), Article XXVII, pp. 26-27.
6. ^ North Carolina General Assembly House Bill 1052 / S.L. 1989-572
7. ^ ^{a b} Congressional Record of the 102nd Congress, Volume 138 - Part 9, May 19, 1992, p. 11656.
8. ^ Kentucky Original Acts of 1792, Chapter XVII, pp. 25-27. This book is in the Kentucky State Law Library.
9. ^ 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.
10. ^ Constitutional Pay Amendment, Dept. of Justice, Ops. 16 of the Office of Legal Council, May 13, 1992.)
11. ^ ^{a b c d} "THE ORGANIC LAWS OF THE UNITED STATES OF AMERICA". http://uscode.house.gov/download/pls/organiclaws.txt. Retrieved 5 December 2010. 
12. ^ 30 F.3d 156 (D.C. Cir. 1994)
13. ^ 240 F.3d 878 (10th Cir. 2001)

External links

• The Constitution of the United States of America: Analysis and Interpretation is available at:
  • GPO Access—Official version of the document at the United States Government Printing Office.
  • FindLaw—FindLaw's version of the official document; incorporates 1996 and 1998 supplements into text, but does not include prefatory material included in the official version.
• 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)