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How the 27th Amendment was adopted

Jan 21st, 2013
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  1. Excerpt from Fordham Law Review "The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment." by Richard B. Bernstein. December 1992.
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  3. IV. RESURRECTION
  4. The modern story of the ratification of the compensation amendment begins with Gregory D. Watson, an aide to Texas state senator Ric Williamson. Convinced that the amendment was still "live," Watson waged a lonely ten-year campaign to add it to the Constitution despite the conventional wisdom -- shared by most politicians, historians, and legal scholars -- that the 1789 proposal was a dead letter.
  5. In 1982, while a sophomore majoring in economics at the University of Texas-Austin, Watson was looking for a paper topic for a government course; he discovered the unratified compensation amendment of 1789, which seemed to him to have abiding relevance. Watson confirmed the ratifications by Maryland, North Carolina, South Carolina, Delaware, Vermont, and Virginia that occurred between 1789 and 1791, when the Bill of Rights was added to the Constitution and the compensation amendment seemingly passed away. But Watson also discovered Ohio's [*537] action on the amendment in 1873. n202 He concluded that the 1789 amendment was still validly before the states principally because, unlike most recent proposed amendments, it has no internal time limit. Intrigued, he wrote a paper reporting and analyzing his discovery and urging that the amendment be adopted. But Watson received only a "C" from his instructor, who told him that the amendment was a dead letter and never would become part of the Constitution.
  6. Despite the cold reception his paper received, Watson began and pursued a solitary, self-financed quest to revive the compensation amendment, encouraging state legislators throughout the United States to work for its ratification. n203 Beginning with Maine in 1983 n204 and Colorado in 1984, n205 the states gradually responded to his arguments, and many of those legislatures that did ratify the amendment cited his point that the lack of a time limit confirms the amendment's "live" status.
  7. Soon after the Colorado ratification, Watson discovered that Wyoming had ratified the compensation amendment six years earlier. Reviving the Ohio strategy in response to a 1977 congressional pay increase, the Wyoming legislature had acted on March 3, 1978, resolving that
  8. the percentage increase in direct compensation and benefits was at such a high level, as to set a bad example to the general population at a time when there is a prospect of a renewal of double-digit inflation; and . . . increases in compensation and benefits to most citizens of the United States are far behind these increases to their elected Representatives . . . . n206
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  10. No other state had followed Wyoming's lead, and it was only because of the coverage of the Maine and Colorado ratifications in State Legislatures magazine that Wyoming State Representative Mark N. Sorenson reported his state's action on the amendment. n207 Meanwhile, as Watson's crusade gathered momentum, conservative and liberal activists of national reputation made short-lived attempts to jump on the bandwagon. n208
  11. [*538] As grounds for reviving a nearly two-hundred-year-old proposal, Watson and his allies cited the public's general and growing anger with the mechanisms by which Congress has sought to raise its salaries without going on record. n209 They also invoked the authority of the original authors and supporters of the amendment, particularly James Madison, arguing that history had borne out their concerns. For example, the Colorado legislature declared as part of its 1984 resolution of ratification:
  12. Whereas, The General Assembly of the State of Colorado finds that the proposed amendment is still meaningful and needed as part of the United States Constitution and that the present political, social, and economic conditions are the same or even more demanding today than they were when the proposed amendment was submitted for its adoption . . . . n210
  13. Most scholars had dismissed the 1789 compensation amendment as a trivial backwater of constitutional law. For example, Professor Walter Dellinger of Duke University Law School commented in 1989:
  14. I think it's clearly dead. . . . It was proposed without any time deadline. . . . There's no rule in the Constitution saying an amendment proposed by Congress expires if not ratified by a certain time. But the Supreme Court has held that the adoption of an amendment is to reflect a "contemporary consensus." Therefore, an amendment dormant for 200 years is no longer viable. n211
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  16. And yet the parade of state ratifications continued:
  17. 1984: 1
  18. 1985: 5
  19. 1986: 3
  20. 1987: 4
  21. 1988: 3
  22. 1989: 7
  23. 1990: 2
  24. 1991: 1
  25. 1992: n212 6
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  27.  
  28. [*539] The ratification of the compensation amendment spawned several constitutional oddities of its own. For example, in only one state (for the only time in the history of the amending process) did the people have the chance to decide the amendment's fate themselves. In 1978, Idaho's legislature had adopted a resolution requiring that any proposed amendment to the Constitution be approved by a statewide referendum before the legislature could ratify it. In 1986, the state's attorney general issued an opinion declaring that the 1978 requirement was a violation of Article V, but in 1988 the state legislature directed the holding of a referendum on the compensation amendment. Once it was overwhelmingly approved by the voters, on November 8, 1988, the Idaho legislature ratified it. n213
  29. On May 7, 1992, the legislatures of Michigan and New Jersey raced to supply the needed thirty-eighth ratification. Michigan acted first; New Jersey's legislators, disappointed that they missed the honor of putting the amendment into the Constitution, nonetheless ratified the amendment as the thirty-ninth state, overturning their predecessors' decision in 1789 to reject it. Five days later, Illinois also ratified, bringing the total number of states approving the amendment to forty. Five weeks later, California boosted the total to forty-one. n214
  30. Members of Congress and constitutional scholars reacted with confusion to the news of the 1789 amendment's apparent success. For example, Professor Dellinger declared, "'My own view is that Congress has no formal role to play. . . . The amendment process is completed by act of the last necessary state.'" n215 Some made a quick check to see if there were any other "unexploded time bombs" lurking in the amending process; n216 others continued to insist that the amendment had become a [*540] dead letter some time between September 26, 1789, when Congress proposed it to the states, and May 7, 1992. n217
  31. Attention focused on the Archivist of the United States, who since 1984 has had the statutory responsibility for certifying amendments. n218 The task of certifying an amendment extends only to determining whether the state certificates of ratification meet the requirements of Article V and whether the certificates set forth congruent texts of the amendment. Declaring these requirements met, Archivist Don W. Wilson ruled the Twenty-seventh Amendment ratified, on May 18, 1992. A day later, it was published in the Federal Register, the official repository of statutes, regulations, and constitutional amendments. n219 Wilson's certification persuaded most constitutional scholars to accept the amendment.
  32. Stunned by the adoption of the amendment, the leadership of the House and the Senate seesawed back and forth. Speaker of the House Thomas S. Foley (Democrat-Washington), who at first was dubious about the validity of the amendment, then declared that, if the Archivist was willing to certify it, he would accept its adoption. At the same time, however, he publicly toyed with the possibility of holding hearings on the amending process -- which in the end never took place.
  33. The Senate's President pro tempore, Robert C. Byrd (Democrat-West Virginia), maintained that Congress retained its prerogative to determine whether and when an amendment is validly ratified. Senator Charles Grassley (Republican-Iowa) agreed, insisting that "there is a reason that the Senate needs to act . . . to ward off any legal attacks that might come on the issue of timeliness." n220 Byrd and Grassley reproved the Archivist for not following the former custom of sending notification to the House [*541] and the Senate and allowing Congress a brief time to review the documents related to the amendment in question before certifying it. This procedure, they maintained, had been followed with previous amendments, particularly the Fourteenth, which had been beset by the problem of state legislatures' attempts to rescind ratifications. For this reason, they introduced a resolution seeking to declare invalid, by the expiration of time, the four unratified amendments. n221
  34. While praising the Twenty-seventh Amendment, Senator William V. Roth (Republican-Delaware) pointed out that "some questions are left unanswered." n222 Noting the existence of four other unratified amendments lacking time limits, Roth asked that Congress adopt Byrd's resolution declaring these proposals to have lapsed. If Congress could declare ratified an amendment that most scholars had assumed was a dead letter for two centuries, Roth demanded, "why cannot the States ratify even the expired amendments -- those which failed ratification before a congressionally imposed deadline -- in the hope that Congress would later extend the deadline?" n223
  35. Representative William B. Clay (Democrat-Missouri) reminded his colleagues that since 1989, Congress had followed, by statute, the same procedure that the 1789 amendment mandated. In Clay's view, the 1989 Ethics Reform Act, n224 passed in response to the public outcry against the latest congressional pay raises, seemed to make the Twenty-seventh Amendment unnecessary. Clay also asked whether the Amendment would outlaw for members of Congress the automatic COLAs that federal law provided to every federal employee. n225
  36. [*542] Whatever the merit of these issues, political realities dictated the speedy endorsement of the Twenty-seventh Amendment. On May 20, 1992, Congress confirmed the Archivist's decision by overwhelming margins in both houses. The Senate vote was 99-0; n226 the House approved the amendment (after brief discussion) by a vote of 414-3, with eighteen Representatives either absent or not voting. n227
  37. The three Representatives voting "No" were Neal Smith (Democrat-Iowa), Carl C. (Chris) Perkins (Democrat-Kentucky), and Craig Washington (Democrat-Texas). Smith explained that, while he had no problem with the substance of the new amendment, "it's short-term political pandering without regard to long-term consequences to the Constitution." n228 Washington inexplicably cast his ballot against the amendment despite having voted for ratification as a Texas state senator in 1989. n229
  38. Though some journalists have characterized the campaign to resurrect the compensation amendment as a right-wing attack on Congress, Gregory Watson has rejected the charge:
  39. That's pure nonsense. The state legislators who voted to ratify the amendment formed bipartisan coalitions, from both political parties, and those few who opposed the amendment also came from both parties. It transcended party; it transcended 'liberal versus conservative.' It was truly bipartisan. n230
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  41. He declared that the adoption of the 1789 amendment "is the greatest thing in my thirty-year life." n231
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