'Amendment XXVII' (the 'Twenty-seventh Amendment') is the most recent amendment to be incorporated into the
United States Constitution, having been ratified in
1992, more than 202 years after its initial submission in
1789.
Text
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.
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 District of Columbia Circuit Court of Appeals ruled that the 27th Amendment does not affect annual Congressional Cost of Living Increases (COLI). 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'' 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—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
1st 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.
From 1789 to
1791, the compensation proposal was ratified by legislators in 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". This act not only provided for a Congressional pay raise, but made that raise retroactive.
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 Constitution's 27th 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 high Court further ruled that the ratification of a constitutional amendment is political in nature—and not a matter properly assigned to the judiciary.
For quite some time, it had been erroneously believed that ratification on
May 7, 1992, by the
Michigan Legislature propelled the 27th Amendment into the U.S. Constitution. However, when the June
1792 ratification of all twelve amendments by the
Kentucky General Assembly during that commonwealth's initial month of statehood later came to light, it was quickly realized that the 27th Amendment's incorporation into the Constitution was actually finalized two days earlier than previously thought—and by the state (Alabama) whose legislature had acted immediately before Michigan's. Possibly unaware of the ratification actions taken in 1792, Kentucky lawmakers ceremonially approved the amendment a second time, nearly 204 years later in
1996, and almost four years after the amendment had already been made part of the nation's highest legal document. In
1989, the
North Carolina General Assembly likewise re-ratified the amendment, having first adopted it two centuries earlier in 1789.
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.
[1]
Notwithstanding the ''Coleman v. Miller'' decision,
Speaker of the House Tom Foley and others called for a legal challenge to the 27th Amendment's irregular ratification. However, the ''Coleman'' ruling made clear that only 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.
However,
Robert Byrd of
West Virginia, then-
President Pro Tempore of the U.S. Senate, scolded Wilson for having certified the Amendment without Congressional approval. Although Byrd supported Congressional acceptance of the 27th 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.
In accordance with the ''Coleman'' ruling—and in keeping with the precedent first established in the 1868 ratification of the
14th Amendment—both houses of the 102nd Congress, on
May 20,
1992, acting separately, adopted
concurrent resolutions agreeing that the 27th Amendment was indeed validly ratified, despite the unorthodox period of more than 200 years for the completion of the task. Neither body, however, adopted the concurrent resolution of the other.
Ratification dates
Congress proposed the Twenty-seventh Amendment on
September 25,
1789.
[2]
The following states ratified the amendment:
# Maryland (
December 19,
1789)
# North Carolina (
December 22,
1789, reaffirmed in
1989)
# South Carolina (
January 19,
1790)
# Delaware (
January 28,
1790)
# Vermont (
November 3,
1791)
# Virginia (
December 15,
1791)
# Kentucky (
1792, reaffirmed in
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 23,
1985)
# Oklahoma (
July 10,
1985)
# New Mexico (
February 14,
1986)
# Indiana (
February 24,
1986)
# Utah (
February 25,
1986)
# Arkansas (
March 6,
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)
Ratification was completed on
May 5,
1992. The amendment was subsequently ratified by the following states:
# Michigan (
May 7,
1992)
# New Jersey (
May 7,
1992)
# Illinois (
May 12,
1992)
# California (
June 26,
1992)
# Rhode Island (
June 10,
1993)
# Hawaii (
1994)
# Washington (
1995)
States that did not ratify
The
Pennsylvania House of Representatives approved the amendment on
January 28,
1992, but the legislation died in committee in the
Pennsylvania 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's failure to ratify is interesting to some observers in that New York was among those states that had specifically requested a similar amendment just two years earlier during New York's aforementioned 1788 convention.
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.
Court cases
There have been only a few cases litigated in the Federal courts which pertain to the 27th 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).
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.
★
The Telling Tale of the Twenty Seventh Amendment Dean, John Includes an interview with
Gregory Watson.
References
1. Both Chambers Rush to Accept 27th Amendment on Salaries Laura Michaelis
2. Ratification of Constitutional Amendments
3. "What's up with the 27th Amendment to the U.S. Constitution?" ''Straight Dope'' staff
See also
★
United States Bill of Rights
★
List of amendments to the United States Constitution
★
List of proposed amendments to the United States Constitution
★
Unsuccessful attempts to amend the U.S. Constitution
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
U.S. 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: 27th Amendment
★
★
★
★
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; Nov. 2, 1992)
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