The Newest Old Amendment

When was the last time you thought about the 27th Amendment?

Umm, maybe never?

You know, it was the last one ratified, back in 1992. It deals with….hmm. What does it deal with again? I know it didn’t repeal Prohibition, because I was drinking legally way before 1992. Quartering troops? No, no, that’s one of the early ones; Third, maybe? Ah, I know, it’s the Equal Rights Amend–oops. Well, that would have been the 27th, if enough states had ratified it in time.

I didn't hear a harrumph out of you...

OK, so here is the 27th Amendment to the U.S. Constitution, confirmed by Congress on May 20, 1992, just two weeks or so after Michigan became the requisite 38th state to ratify it:

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

So maybe not as sexy, say, as the ones about not abridging free speech or having a speedy and public trial or giving women the right to vote. But there it is, the law of the land. And why, you may ask, does the History Nerd care? Because he was challenged in a class the other night to explore the roots of this amendment, and he never (well…) backs away from a historical challenge.

Short on height, but long on the legal smarts

Our newest amendment actually has a long pedigree, something that poked at me with unsure familiarity when the challenge first arose. Long indeed: It was one of the original proposed amendments penned by James Madison in 1789. He introduce nine to the House; the representatives eventually sent 17 to the Senate. The two bodies then whittled that down to the 12 that  were sent to the states for ratification. The states accepted ten, the amendments to the Constitution that we know today as the Bill of Rights.

Why did Madison want an amendment governing Congressional pay raises? He knew people didn’t always trust their lawmakers (surprise!). And some lawmakers once in awhile try to benefit from their position (surprise  again!). Madison believed lawmakers shouldn’t be able to vote themselves a raise, unless they faced reelection before they actually got the cash. The election would allow voters, in effect, to give a thumbs up-or-down on the raise. Or at least if their particular lawmaker got to benefit from it.

A handy-dandy document, when not flouted by certain presidents and lawmakers...

The amendment won some support in the states. Six of the thirteen voted to ratify, but that fell short of the nine needed to put it in the Constitution. So, the ratified amendments took effect, and Madison‘s Amendment, as it’s now called just sat…wherever it is failed amendments go. But all hope was not lost,  because the Congress of 1789 did not put a time limit on the ratification process for the first proposed amendments (unlike today).

Decades passed, and Ohio ratified it. Meanwhile, the country continued to grow, meaning the number of states needed to pass the amendment  grew too. By 1959, with the admission of Alaska and Hawaii, Madison‘s Amendment needed approval from 31 more states. A pretty daunting figure for an admittedly obscure amendment. But then something happened.

People began to get really pissed at their members of Congress. And the raises they sometimes voted themselves. A retroactive pay raise spurred Wyoming in 1978 to ratify the amendment. Then, during the 1980s, a college student researching it began his own Constitutional crusade, to get the amendment ratified once and for all. (See a real legal authority’s take on this here.) Ralph Nader came on board too, and as the effort steamrolled, a 1989 Washington Post article spurred the final push. And so the 27th Amendment came to grace our Constitution.

Has the amendment impacted the lives of most Americans? I think we know the answer. The judicial system is not exactly flooded with cases relating to it. My quick research found just one U.S. Supreme Court issuance that referenced it: a dissent by Justice Stephen Breyer (joined by Scalia and Kennedy) on a denial of certiorari in Williams v. United States (535 U.S. 911 [1992], for all you legal geeks).

You, you mean, I lost?

But I did find a more substantive U.S. Court of Appeals case that dealt with it, Boehner v. Anderson (30 F. 3d 156, 308 U.S. App. D.C. 94  [1994], and yes, the same House Minority Leader John Boehner now often seen on the news saying all those constructive things about our president). Read more at your leisure, but the gist was that a Cost of Living Adjustment (COLA) for Congress did not violate the amendment because the increase went into effect after an election. Boehner also argued that if that COLA law were constitutional, then a later elimination of the COLA violated the amendment because no election took place between the passing of the later law and the varying (lowering) of his pay. The court punted on that one and did not rule. The whole thing confuses me: Boehner says Congress couldn’t raise his pay with a COLA, but couldn’t take away the most recent COLA either? The court’s decision notes the “seemingly contradictory factual claims of injury.” Whew. I thought it was  just me. No, not surprisingly, it was Boehner.

At least one legal scholar (John Dean, in the article I linked to above), says Congress has routinely ignored the 27th Amendment since its certification. COLAs taken since 1997 have violated its provisions, but no one has ever been given standing to challenge Congress on this. (As of Dean’s admittedly old article; but at the least, any challenge has not gotten to the SCOTUS or stopped the COLAs. In 2009. however, Rep. Dan Burton, R-IN, introduced one of several bills to ax the COLA; all seemed to have died in committee.)  The courts have been sticking with the argument that the original law calling for COLAs was passed in accordance with the amendment, so everything’s kosher (read more about the whole thing here).

So, there you have it – challenge met with a quick history of the 27th Amendment. Makes fascinating reading, doesn’t it? You‘re welcome.