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 AmendmentBy Steven G. Calabresi and Zephyr Teachout
The Twenty-Seventh Amendment has one of the most unusual histories of any amendment ever made to the U.S. Constitution. Congress passed the Twenty-Seventh Amendment by a two-thirds vote of both Houses, in 1789, along with eleven other proposed constitutional amendments (the last ten of which were ratified by the states in 1791, becoming the Bill of Rights). The Amendment provides that: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”
During the Philadelphia Constitutional Convention, congressional pay was a central topic, one that took up several days of discussion. Benjamin Franklin’s initial speech to the Convention was on the topic of public salaries: he was against them. Public servants should not get paid at all, Franklin argued, or we would get representatives with “bold and the violent” personalities, engaged in “selfish pursuits.” Franklin’s extreme argument did not prevail because the Framers wisely did not want only the wealthy to be able to afford to hold federal offices. This is a very good thing.
Nonetheless, Franklin’s comments caused the Framers at the Philadelphia Convention to focus on the problem of making sure that people did not go into public office to make a lot of money. In England, at the time, the biggest problem of English democracy was the phenomenon known as “placemen.” Placemen were members of Parliament who the King simultaneously appointed to lucrative executive branch offices to buy their loyalty on votes in Parliament. The King had built up his power by corrupting these office holders, giving them easy and well-paid civil office jobs so that they would support him in Parliament. To prevent this problem, the Framers added Article I, Section 6’s Incompatibility Clause. That Clause says that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” The Framers described the Incompatibility Clause as being “The Cornerstone of the Constitution.” But as to salaries for congressmen themselves, the Constitution simply said those salaries should be provided for by law—in other words, that Congress would set its own pay. This did not sit well with the general public, or with James Madison—it seemed like a big opening for Congress to pay itself too much.
In 1789, Madison proposed twelve amendments to the federal Constitution, the first ten of which were ratified in 1791 and became the federal Bill of Rights. One of the proposed amendments, which was not ratified at that time, was an amendment that became the Twenty-Seventh Amendment and which forbade congressional pay increases from taking effect until there had been an intervening election of members of Congress. Madison did not want Congress to have power over its own pay without limitation. But he also did not want the President to control congressional salaries, since that would give the President too much power over Congress. So instead, he proposed that an election had to happen before any pay raise could take effect. If the public opposed an overly generous congressional pay raise, the public could throw the offending congressmen out of office when they ran for re-election.
The congressional pay amendment was only ratified by 6 states initially. But the First Congress, which had passed the Amendment in 1789, had not attached a time limit within which the Amendment had to be ratified by the states. (Some subsequent constitutional amendments have provided for such time limits.) In the nineteenth century, one state joined this small group, and others in the twentieth, but no one thought it was going anywhere—or thought about it much at all.
In 1982, the Amendment was languishing before the states with only a tiny fraction of the number of states needed to ratify having ratified it. That year Gregory Watson, a sophomore at the University of Texas, was assigned to write a paper about a government process. He came across a chapter in a book on the Constitution, listing proposed constitutional amendments that had not been ratified. He wrote his paper on the congressional pay amendment, arguing that there was no time limit on when it could be ratified, and that it could be ratified now. He got a C on the paper. Maybe if he had received a better grade on his paper, the story would have ended there, but Watson was sure it was a better paper, so he appealed his grade, first to his T.A., then to his professor; and when he was unsuccessful, he decided to take the issue to the country. In an NPR report in May 2017, he said that after his teacher affirmed the C, “I thought right then and there, ‘I’m going to get that thing ratified.’”
Watson sent letters around the country to state legislators, who mostly ignored his idea. But Maine Senator William Cohen liked the idea—and he pushed it and it passed in Maine in 1983. After that, Watson kept pushing, and the Amendment picked up steam.
The fact of the Amendment’s passage through Congress in 1789 and of its non-ratification by the states came to public attention in the 1980s when there was tremendous popular disapproval of the performance of the Congress and the exorbitant salaries and fringe benefits members of Congress enjoyed. As a result, a campaign was launched to get three-quarters of the states to ratify the Amendment over the totality of the period between 1789 and the present day. In 1985, five states passed it, and by 1992, the 38 states needed for full ratification had all passed the Amendment. Thus, the three-quarters of the states’ consensus required by Article V of the Constitution was finally reached in 1992—more than 202 years after Congress had proposed the Amendment. The Archivist of the United States declared the Amendment to be legally ratified, and, subsequently, Congress on May 20, 1992, declared the ratification to be legal and the Amendment to be part of the Constitution. As of today, forty-six states have ratified the Twenty-Seventh Amendment while four have not.
The main objection that has been made by scholars to the legality of the ratification process of the Twenty-Seventh Amendment is that Article V contemplates some kind of simultaneous approval of a proposed amendment between when Congress votes on it and when three-quarters of the states ratify it. Proponents of this view point out that the size of the Senate and House of Representatives and the number of states in the Union have changed significantly between 1789 and 1992. Scholars who reject the Twenty-Seventh Amendment do so on the structural constitutional ground that there was never a “magic moment” consensus of two-thirds of both Houses of Congress and three-quarters of the states when a national and federal supermajority agreed to add the Amendment to the Constitution. Speaker of the House Tom Foley initially called for litigation to challenge the legality of the Amendment’s ratification process, but he quickly changed his mind on that point once he saw how popular the Amendment really was.
Moreover, these scholars add that there are a number of constitutional amendments that Congress has approved but that the states have not yet ratified, which could become law if the Twenty-Seventh Amendment process were to be held valid. In an effort to avoid the outbreak of the Civil War, Congress passed a constitutional amendment called the Corwin Amendment, which would have forever preserved slavery in those states where it was legal in 1861. Could this horrible old amendment, to which Congress attached no time limit for its ratification, be resurrected and ratified in the future simply by state action and with no new attempt to get two-thirds of both Houses of Congress to ratify it?
The argument in favor of the validity of the Twenty-Seventh Amendment’s ratification is that Article V’s text only requires: 1) two-thirds of both Houses of Congress pass the proposed amendment, which happened here in 1789; and that 2) three-quarters of the states ratify the amendment as it passed in Congress, which they did here in 1992. From a strictly textual viewpoint, the terms of Article V were satisfied, and Congress had no choice but to accept the Amendment as being a valid addition to the Constitution.
It is important to note here that the “precedent” that was set when Congress “approved” of the unusual process by which the Twenty-Seventh Amendment was ratified meets not only the textual requirements of Article V; it also met the structural argument about the need for a “magic moment” when there is a popular national consensus of super-majority proportions. Congress on May 20, 1992 voted by a unanimous vote of the Senate and by a vote of 414 to 3 in favor of “accepting” the Twenty-Seventh Amendment as having been validly approved. Forty-six out of fifty states ratified the Amendment, and no state that had once ratified the Amendment tried to “unratify” it. Both the textual and the structural concerns that underlie Article V had been satisfied. There was an Article V consensus in 1992 to ratify this most unusual amendment.
It goes without saying that there would NOT be such a national supermajority consensus for many other “dead” constitutional amendments that have been ratified by two-thirds of both Houses of Congress and sent to the states for ratification. In the unimaginable situation in which a state might try to ratify the Corwin Amendment constitutionalizing the right to own slaves, Congress would immediately rescind its approval of the Amendment as would most of the states, which had ratified it. It is thus important to note that the case of the 202 year-long ratification process of the Twenty-Seventh Amendment is really sui generis: It deals with a situation, which is very unlikely ever to rise again.
One final question is raised by the odd ratification process of the Twenty-Seventh Amendment: What role, if any, should the U.S. Supreme Court play in passing on the validity of the ratification of constitutional amendments? Such amendments are the supreme law of the land, as is Article V, and Chief Justice Marshall said in Marbury v. Madison (1803), “It is emphatically the province and duty of the judiciary to say what the law is.” In Coleman v. Miller (1939), Justice Hugo Black wrote a concurrence joined by Justices Roberts, Frankfurter, and Douglas arguing that cases that go to the validity of the ratification of a constitutional amendment should be said to raise a political question and that only Congress can resolve that question.
Professor Calabresi agrees with Justice Black on this point because over the last 228 years of American history the federal courts have never been in the business of reviewing the legality of the process by which an amendment was ratified, and there is no reason they should get into that process now. There were serious questions about the legality of the ratification of the Fourteenth Amendment since the eleven rebel states were compelled to ratify the Amendment before they were allowed back into the Union. Congress declared this was legal and that the Fourteenth Amendment had been validly ratified, and Professor Calabresi heartily agrees. Suffice it to say that no court has ever or should ever question Congress’s judgment and decision on that measure.
The Twenty-Seventh Amendment was accepted as a validly ratified constitutional amendment on May 20, 1992, and no court should ever second-guess that decision. Constitutional amendments are one of the few checks and balances that “We the People” have on the Supreme Court, and it would thus be unconstitutional for the Supreme Court to adjudicate the legality of the ratification of an amendment that might be overturning a Supreme Court decision. That would violate a fundamental axiom of Anglo-American law, which is that no man should ever be a judge in his own cause.Steven G. Calabresi Clayton J. and Henry R. Barber Professor of Law, Northwestern Pritzker School of Law Zephyr Teachout Associate Professor of Law, Fordham University School of Law