Constitution of the United States/Twenty-Seventh Amend.

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Twenty-Seventh Amendment Congressional Compensation

Overview[edit | edit source]

The Twenty-Seventh Amendment prevents laws that modify Members of Congress' compensation from taking effect until after an intervening congressional election.[1] The Supreme Court has not decided any cases interpreting the Twenty-Seventh Amendment.[2] Nonetheless, the unusual circumstances of the Amendment's ratification, which occurred more than 200 years after Congress initially proposed it, have raised important questions about Article V's process for amending the Constitution.[3]

The Twenty-Seventh Amendment's history spans more than two centuries from the Colonial Era to the 1990s. Generally, the governments of Great Britain's American colonies--and, later, the state governments--followed the "ancient" British practice of compensating legislators.[4] Consistent with this practice, the Constitution's Framers determined that Members of the proposed bicameral national legislature would receive compensation for their services.[5] However, at the 1787 Federal Convention, the Framers debated whether compensation for Members of Congress should be determined by the Constitution, the Members themselves, or the state legislatures.[6] Ultimately, the Framers determined that the national government would compensate Members of Congress for their services in amounts set by congressional legislation.[7]

The original Constitution, which took effect in 1789, did not prevent federal laws that increased or decreased Members' compensation from becoming operative before the next congressional election.[8] Some delegates to the state conventions that met to consider the Constitution's ratification viewed the absence of an intervening electoral check on Congress's power to set its own pay as a flaw in the Constitution's design.[9] When ratifying the Constitution, several state conventions recommended amendments to the nation's charter to address concerns that Members of Congress would abuse the power to set their pay.[10]

Early in the First Congress, James Madison, then a Virginia congressman, introduced a series of resolutions proposing to amend the Constitution.[11] Many of these resolutions drew from the recommendations of the state ratifying conventions.[12] The third resolution prohibited any "law varying the compensation" of Members of Congress from becoming operative "before the next ensuing election of Representatives."[13] On September 25, 1789, Congress proposed a similarly worded Congressional Pay Amendment.[14] It was submitted to the states for ratification along with an amendment addressing congressional apportionment[15] and the ten amendments that became the Bill of Rights upon their ratification in 1791.[16]

By the end of 1791, only six states had ratified the Congressional Pay Amendment.[17] In 1873, the Ohio legislature ratified the Amendment to protest a congressional pay raise.[18] Thereafter, the Amendment lay dormant until the late twentieth century when it was rediscovered by Gregory D. Watson, then an undergraduate student at the University of Texas at Austin.[19] Watson wrote a paper for a political science class arguing that the states could still ratify the Amendment[20] and subsequently urged state legislatures to adopt it.[21] From the mid-1980s to the early 1990s, more than 30 state legislatures ratified the Amendment, responding to the American public's opposition to congressional pay increases.[22] The National Archivist proclaimed the Twenty-Seventh Amendment to have been ratified on May 7, 1992, more than two centuries after Congress had initially proposed it.[23]

Clause 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.

Historical Background[edit | edit source]

Debates in the Federal Convention on Congressional Compensation[edit | edit source]

The concerns that motivated the proposal and ratification of the Twenty-Seventh Amendment grew out of debates at the Federal Convention about compensating Members of Congress. Prior to the Constitution's drafting, many of Great Britain's American colonies--and, later, the states in their constitutions--adopted the British House of Common's "ancient practice" of compensating legislators for their services.[24] Generally, state legislators set their compensation by law, which was paid out of the state's treasury.[25] Similarly, under the Articles of Confederation, states were responsible for compensating their delegates to the Confederation Congress.[26] As Justice Joseph Story noted in his Commentaries on the Constitution of the United States, the American preference for compensating legislators had a longstanding pedigree.[27] Its purposes were to ensure that a pool of talented people from all economic backgrounds would serve as legislators and to reduce the potential for corruption that might result if legislators received compensation from other sources.[28] These historical practices informed the Framers' deliberations at the 1787 Constitutional Convention.[29]

At the beginning of the Federal Convention in Philadelphia, Virginia Governor and Convention delegate Edmund Randolph proposed a blueprint for the national government in a series of resolutions known as the "Virginia Plan."[30] This plan addressed compensation for Members of the proposed bicameral national legislature.[31] An early draft stated that Members of the Senate and House of Representatives would receive "liberal stipends, by which they may be compensated for the devotion of their time to public service."[32]

Convention delegates debated the issue of congressional compensation on many occasions. Concerns about legislator corruption featured prominently in these discussions.[33] During several debates, the delegates argued about whether Members of Congress' compensation should be determined by the Constitution, the Members themselves, or the state governments.[34] An ancillary debate about Congress' power to set its pay grew out of these discussions.[35]

One group of delegates maintained that the Constitution should "fix" salaries for Members of Congress according to an objective standard. During one June 1787 debate, James Madison argued that it would be "an indecent thing" to permit Members of Congress to "regulate their own wages."[36] Madison believed that the Members of the national legislature would be "too much interested to ascertain their own compensation" and that they might "put their hands into the public purse for the sake of their own pockets."[37] Instead of adopting this "dangerous" path, Madison proposed tying Members' salaries to the average price of a commodity, such as wheat.[38]

Other delegates disagreed with Madison's view and argued that Members of Congress should determine their compensation by law. For example, Nathaniel Gorham, a delegate from Massachusetts, contended that Members of Congress should have the flexibility to adjust their salaries "from time to time," noting that state legislators had often done so without incident.[39] Under this proposal, Members' salaries would be paid out of the national treasury[40] and Congress could adjust its compensation in order to take account of future circumstances.[41]

A third group of Convention delegates argued that each state government--rather than the Constitution or Congress--should determine compensation for its Members of Congress, which would be paid out of the state's treasury.[42] Delegates who supported this arrangement argued that it would allow each state to adopt the amount of compensation that it deemed reasonable[43] and prevent states from unwillingly contributing a disproportionate amount of funds to Members' salaries.[44] Proponents also maintained that, by setting Members' compensation, states could ensure that Senators, whom state legislatures would elect, would not "lose sight of their constituents" when serving in the nation's capital.[45]

Delegates who opposed allowing each state to determine its own Members' compensation independently of the other states, such as Alexander Hamilton, contended that this arrangement would allow state legislatures to exercise too much control over Members of Congress.[46] In this vein, opponents noted that individual states would control Members' salaries despite the fact that "the whole nation has an interest in the attendance and services of [all of] the members."[47] Opponents also argued that frugal states might reduce salaries to such a degree that talented people would not want to serve in Congress.[48]

The Congressional Compensation Clause and the Federal Convention[edit | edit source]

On August 14, 1787, delegates to the Federal Convention reviewed a draft of the Constitution that authorized the states to set compensation for Members of Congress.[49] Delegate Gouverneur Morris moved to modify this draft to permit Congress to set its Members' salaries to be paid out of the national treasury.[50] Morris contended that "there could be no reason to fear that they would overpay themselves."[51] James Madison agreed with other delegates that allowing the states to determine Members' compensation would undermine the national government's stability but continued to advocate for a fixed limit on Members' salaries in the Constitution.[52] After some debate, the Convention delegates approved language providing for Members to set their pay by law, which would be paid out of the U.S. treasury.[53] The delegates rejected a proposal that would have established a fixed amount for Members' compensation.[54]

As proposed to the states, the Congressional Compensation Clause in Article I, Section 6 provided that "[t]he Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States."[55] The Constitution thus provided for the national government to compensate Members of Congress for their services in amounts set by congressional legislation. Notably, the original Constitution did not prevent federal laws that increased or decreased Members' salaries from taking effect before the next congressional election. The absence of an intervening electoral check on Congress's power to set its own pay became a source of tension during debates in many of the state conventions that met to consider the Constitution's ratification.[56]

Congressional Compensation and Debates over Ratification of the Constitution[edit | edit source]

The original Constitution, which took effect in 1789, did not prevent federal laws that increased or decreased Members of Congress' salaries from becoming operative before the next congressional election. This became a source of tension during debates in many of the state ratifying conventions.[57] In particular, Anti-Federalists, who opposed the Constitution's ratification because of concerns that the national government would become too powerful relative to the states and threaten individual rights, expressed the view that Members of Congress should not set their own pay.[58] For example, at the Virginia ratifying convention in June 1788, Patrick Henry, an Anti-Federalist and staunch opponent of ratifying the Constitution, objected to allowing Members of Congress to determine their compensation "by themselves, without limitation or restraint."[59] He stated that Members "may therefore indulge themselves in the fullest extent" by making their compensation "as high as they please."[60] Henry argued that having the state legislatures fix Members' compensation would impose some measure of restraint on the national legislature.[61]

James Madison, who played a key role in drafting the Constitution and served as a delegate to the Federal Convention, defended the Congressional Compensation Clause at the Virginia ratifying convention. Madison contended that allowing state legislatures to determine congressional pay would make the national government too dependent on the state governments.[62] Madison noted that, historically, state legislatures had not abused the privilege of setting their own compensation.[63] He also argued that Members of Congress who engaged in such practices would incur the "general detestation" of their constituents.[64]

When ratifying the Constitution, conventions in New York, North Carolina, and Virginia recommended amendments to address concerns that Members of Congress would abuse the power to modify their compensation.[65] For example, New York delegates recommended several amendments to the Constitution when they ratified the document in July 1788.[66] One recommended amendment would have required "[t]hat the compensation for the Senators and Representatives be ascertained by standing laws; 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."[67] These recommendations informed Madison's introduction of draft amendments to the Constitution in the First Congress.

Proposal of the Congressional Pay Amendment[edit | edit source]

Early in the First Congress, James Madison, then a Virginia congressman, introduced a series of resolutions proposing to amend the Constitution.[68] Many of these resolutions drew from the recommendations of the state ratifying conventions and were intended to assuage Anti-Federalists' concerns that the new federal government would usurp state power and stifle individual rights.[69] The third resolution, initially proposed as a revision to the Congressional Compensation Clause rather than as a standalone, supplementary article, provided that "[n]o law varying the compensation last ascertained shall operate before the next ensuing election of Representatives."[70]

In explaining the need for this amendment, Madison stated that, although it was unlikely that Congress would abuse its spending power when determining its compensation, there was nonetheless "a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets."[71] He contended that the Congressional Pay Amendment would ensure that Members would not modify their compensation solely for their benefit.[72]

Madison's proposed amendments underwent various revisions in the House and Senate before final passage and submission to the states.[73] Records of congressional debates in the House of Representatives include a brief discussion of the proposed Congressional Pay Amendment.[74] During this discussion, Representative Theodore Sedgwick of Massachusetts expressed general concerns that Members of Congress would reduce their pay, thereby discouraging qualified people from serving in the House.[75] Madison stated that the Amendment might not be "absolutely necessary," but that it would not affect Congress's ability to attract a sufficient number of qualified Members.[76]

On September 25, 1789, after Congress approved the Congressional Pay Amendment by a vote of two-thirds of both Houses, it was submitted to the states as one of twelve proposed amendments to the Constitution.[77]

Ratification of the Twenty-Seventh Amendment[edit | edit source]

Congress proposed the Congressional Pay Amendment to the states in 1789 along with eleven other amendments, including the ten proposals that would later become the Bill of Rights.[78] By the end of 1791, only six of the then-existing fourteen states had ratified the Pay Amendment,[79] leaving it short of the eleven state legislatures needed to constitute a three-fourths majority for purposes of ratification at the time.[80] In 1873, the Ohio legislature ratified the Amendment to protest a congressional pay raise.[81] Thereafter, the compensation amendment lay dormant until the late twentieth century.

In 1982, Gregory D. Watson, an undergraduate student at the University of Texas at Austin, wrote about the Congressional Pay Amendment in a paper for a political science class.[82] Watson argued that the states could adopt the Amendment because Congress had not imposed a deadline on its ratification.[83] Watson's instructor gave him a grade of 'C' on the paper, reportedly telling him that the Amendment was a "dead letter."[84] Thereafter, Watson mounted a campaign to obtain the state legislatures' ratification of the Amendment.[85]

From the mid-1980s to the early 1990s, more than 30 state legislatures ratified the Amendment, responding to public opposition to congressional pay increases.[86] On May 18, 1992, National Archivist Don W. Wilson, on the advice of attorneys in the Department of Justice's Office of Legal Counsel, proclaimed the Amendment to have been ratified on May 7, 1992.[87] Although the Constitution does not require Congress to confirm that an amendment has been ratified, the House and Senate each subsequently passed a concurrent resolution recognizing that the Amendment had been adopted.[88]

Scope of the Twenty-Seventh Amendment[edit | edit source]

The Supreme Court has not decided any cases interpreting the Twenty-Seventh Amendment. However, in 1994, one federal court of appeals panel rejected a Twenty-Seventh Amendment challenge to congressional pay legislation.[89] In Boehner v. Anderson, Congressman John Boehner contended that provisions in the Ethics Reform Act of 1989 violated the Twenty-Seventh Amendment.[90] These provisions automatically adjust salaries and pensions for Members of Congress each year to account for increases in the cost of living unless Congress declines the adjustment.[91] Boehner argued, among other things, that half of the annual adjustments (i.e., those taking effect in odd-numbered years) were "laws" that would modify pay for Members of Congress without an intervening election, violating the Twenty-Seventh Amendment.[92]

The D.C. Circuit Court of Appeals held that the cost-of-living adjustment mechanism did not violate the Twenty-Seventh Amendment.[93] Assuming, without deciding, that the Amendment applied to a law enacted before the Amendment's ratification in 1992, the court determined that the Ethics Reform Act of 1989 "did not cause any adjustment to congressional compensation until after the election of 1990 and the seating of the new Congress."[94] Thus, the court determined that the relevant "law" for purposes of the Twenty-Seventh Amendment was the Ethics Reform Act provision, enacted in 1989, rather than each subsequent automatic, annual pay adjustment.[95] Because the Act, enacted in the 101st Congress, had taken effect after the seating of a new Congress on January 1, 1991, no Twenty-Seventh Amendment violation had occurred.[96]

Because of a lack of Supreme Court precedent, it is unclear whether various novel statutory mechanisms for regulating Members' pay might comply with the Twenty-Seventh Amendment. For example, in 2013, Congress enacted the "No Budget, No Pay Act."[97] After a certain date, the Act would have temporarily withheld the payment of Senators' or Representatives' salaries until a Member's respective house of Congress had agreed to a "a concurrent resolution on the budget for fiscal year 2014 pursuant to section 301 of the Congressional Budget Act of 1974."[98] In an effort to comply with the Twenty-Seventh Amendment, the Act would have released the funds for Members' salaries on the last day of the 113th Congress if no budget resolution had been adopted in accordance with the Act's terms.[99] Because each chamber passed a budget resolution prior to the Act's deadline, Members' pay was not withheld pursuant to the Act. As a result, the law was never tested in court.

Implications for the Article V Amendment Process[edit | edit source]

The unusual circumstances of the Twenty-Seventh Amendment's ratification more than 200 years after its proposal have raised important questions about Article V's process for amending the Constitution.[100] One question is whether there is an implicit time limit on an amendment's ratification when Congress does not specify one in the amendment's text or the accompanying joint resolution.[101] Although the Supreme Court in Dillon v. Gloss opined that, regardless of whether Congress specifies a deadline, the time period for ratification must be "reasonable,"[102] it appears this language was subsequently regarded as nonbinding dicta in Coleman v. Miller.[103]

Some scholars have argued, consistent with the dicta in Dillon, that Article V requires a "contemporaneous consensus" among Congress and the states in favor of an amendment,[104] but other commentators disagree.[105] The National Archivist's certification of the Twenty-Seventh Amendment more than 200 years after it was proposed suggests that, if Congress does not specify a deadline for ratification, an amendment remains pending before the states until the requisite number of states have ratified it.[106]

Another question that emerged from the Twenty-Seventh Amendment's ratification is whether Congress has any role to play in determining whether an amendment has been ratified.[107] After the National Archivist certified the Twenty-Seventh Amendment as part of the Constitution, the House and Senate each passed a concurrent resolution recognizing that the Amendment had been adopted.[108] In Coleman v. Miller, a 1939 case involving the unratified Child Labor Amendment, the Supreme Court indicated that Congress might play a role in "promulgating" an amendment, noting that Congress had adopted a concurrent resolution recognizing that the states had ratified the Fourteenth Amendment after the Civil War.[109] However, the Court also noted the unique circumstances surrounding the ratification of the Fourteenth Amendment.[110] For instance, three southern states that previously rejected the Amendment had constituted new governments at Congress's direction as a result of Reconstruction by the time they ratified it.[111] Thus, the Court's ruling in Coleman would not appear to have definitively resolved questions about Congress's role in the ratification process. Moreover, since Coleman, some commentators have expressed doubts that Congress has any constitutional role in determining whether the states have ratified a proposed constitutional amendment.[112]

  1. Twenty-Seventh Amendment Congressional Compensation.
  2. See Twenty-Seventh Amend.: Scope of the Twenty-Seventh Amendment.
  3. See Twenty-Seventh Amend.: Implications for the Article V Amendment Process. For an in-depth discussion of Article V, see Fifteenth Amendment Right of Citizens to Vote.
  4. See Twenty-Seventh Amend.: Debates in the Federal Convention on Congressional Compensation.
  5. See id.
  6. See id.
  7. See id. See also Art. I, Sec. 6, Clause 1 Pay, Privileges, and Immunities; Art. I, Sec. 6, Cl. 1: Compensation of Members of Congress.
  8. See Twenty-Seventh Amend.: Debates in the Federal Convention on Congressional Compensation.
  9. See id.
  10. See id.
  11. See Twenty-Seventh Amend.: Proposal of the Congressional Pay Amendment.
  12. See id.
  13. See id.
  14. See id. This group of essays refers to the Twenty-Seventh Amendment as the "Congressional Pay Amendment" prior to its ratification because the states ratified a significant number of other amendments to the Constitution between Congress's proposal of the Congressional Pay Amendment in 1789 and its ratification as the Twenty-Seventh Amendment in 1992. See generally Twenty-Seventh Amendment Congressional Compensation
  15. For more on the amendment related to congressional apportionment, which has not been ratified, see Introduction: Proposed Amendments Not Ratified by the States.
  16. See Twenty-Seventh Amend.: Proposal of the Congressional Pay Amendment.
  17. See Twenty-Seventh Amend.: Ratification of the Twenty-Seventh Amendment.
  18. See id.
  19. See id.
  20. See id.
  21. See id.
  22. See id.
  23. See id.
  24. 3 Joseph Story, Commentaries on the Constitution of the United States § 849 (1833). Up until the mid-17th century, the British compensated members of the House of Commons for their services. Id. The British ceased to compensate these members by the time the Framers met in Philadelphia to draft the Constitution. Id.
  25. Id.
  26. See, e.g., Articles of Confederation of 1781, art. V, ¶ 3 ("Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states."). Similarly, colonial legislatures were responsible for compensating their delegates to the Continental Congresses. See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 501-02 (1992). Some colonial and state legislatures withheld delegates' salaries in an effort to save money or exert pressure on Congress to further the state's interests. See id.
  27. 3 Story, supra note here, § 851.
  28. Id. However, as one commentator has noted, early in American history many states imposed property qualifications for holding political office that "helped to exclude from the [state legislatures] most of those who would rely on the salaries they might expect to receive as members." Bernstein, supra note here, at 501.
  29. Id. at 499.
  30. 1 The Records of the Federal Convention of 1787, 20 (Max Farrand ed., 1911)[hereinafter Farrand's Records](Madison's notes, May 29, 1787). James Madison played a key role in drafting the Virginia Plan. Bernstein, supra note here, at 502.
  31. 1 Farrand's Records, supra note here, at 20.
  32. Id.
  33. E.g., 1 Farrand's Records, supra note here, at 373-74 (Madison's notes, June 22, 1787). Concerns about legislator corruption motivated the Framers to include the Ineligibility Clause in the original Constitution. This Clause, which shares some similarities with the later-ratified Twenty-Seventh Amendment, prohibits a Member of Congress from being appointed to a federal civil office that was created, or had its compensation increased, during the Member's elected term. For additional information, see Art. I, Sec. 6, Cl. 2: Ineligibility Clause (Emoluments or Sinecure Clause) and Congress. Another provision, often called the Incompatibility Clause, forbids a Member from simultaneously holding any Office under the United States. See Art. I, Sec. 6, Cl. 2: Overview of Federal Office Prohibition.
  34. 1 Farrand's Records, supra note here, at 215-16 (Madison's notes, June 12, 1787). See also Id. at 372 (Madison's notes, June 22, 1787).
  35. See sources cited supra note here.
  36. 1 Farrand's Records, supra note here, at 216 (Madison's notes, June 12, 1787). During the same June 12, 1787, debate, on the motion of Benjamin Franklin, the delegates unanimously agreed to strike out the word "liberal" before "stipends." Franklin expressed concerns that the inclusion of that term might lead to abuse. Id. at 216 (Madison's notes, June 12, 1787).
  37. Id. at 373-74 (Madison's notes, June 22, 1787).
  38. Id. at 216 (Madison's notes, June 12, 1787). See also Id. at 373 (Madison's notes, June 22, 1787) (statement of James Madison) (agreeing that the state legislatures should not set compensation for Members of Congress, but arguing that the Constitution should fix compensation according to a standard "that would not vary with circumstances").
  39. Id. at 372 (statement of Nathaniel Gorham). At least some state constitutions in existence at the time of the Founding contemplated that state legislatures would set salaries for public officers of the various branches of government. See, e.g., S.C. Const. of 1776 art. XXXIV ("That the following yearly salaries be allowed to the public officers undermentioned: The president and commander-in-chief nine thousand pounds; the chief justice and the assistant judges, the salaries, respectively, as by act of assembly established. . . and all other public officers shall have the same salaries as are allowed such officers, respectively, by act of assembly."); Mass. Const. of 1780 pt. 2, ch. I, § 3, art. II ("The expenses of travelling to the general assembly and returning home, once in every session, and no more, shall be paid by the government out of the public treasury, to every member who shall attend as seasonably as he can, in the judgment of the house, and does not depart without leave.").
  40. 1 Farrand's Records, supra note here, at 373 (Madison's notes, June 22, 1787). See also 3 Story, supra note here, § 854 ("If it be proper to allow a compensation for services to the members of congress, there seems the utmost propriety in its being paid out of the public treasury of the United States. The labour is for the benefit of the nation, and it should properly be remunerated by the nation.").
  41. 1 Farrand's Records, supra note here, at 373 (Madison's notes, June 22, 1787) (statement of James Wilson). See also 3 Story, supra note here, § 855 ("If fixed by the constitution, [compensation] might, from the change of the value of money, and the modes of life, have become too low, and utterly inadequate. Or it might have become too high in consequence of serious changes in the prosperity of the nation. It is wisest, therefore, to have it left, where it is, to be decided by congress from time to time, according to their own sense of justice, and a large view of the national resources.").
  42. 1 Farrand's Records, supra note here, at 373 (Madison's notes, June 22, 1787) (statement of Roger Sherman). See also id. at 427-28 (Madison's notes, June 26, 1787) (recording a debate over whether Senators should be paid out of the state or national treasuries).
  43. Id. at 371-72 (Madison's notes, June 22, 1787) (statement of Oliver Ellsworth).
  44. Id.
  45. 2 Farrand's Records, supra note here, at 290 (Madison's notes, Aug. 14, 1787).
  46. 1 Farrand's Records, supra note here, at 373 (Madison's notes, June 22, 1787). See also 2 Farrand's Records, supra note here, at 290 (Madison's notes, Aug. 14, 1787) (statement of Oliver Ellsworth). See also 3 Story, supra note here, § 855 ("If the compensation had been left, to be fixed by the state legislature, the general government would have become dependent upon the governments of the states; and the latter could almost, at their pleasure, have dissolved it. Serious evils were felt from this source under the confederation, by which each state was to maintain its own delegates in congress; for it was found, that the states too often were operated upon by local considerations, as contradistinguished from general and national interests.").
  47. 1 Farrand's Records, supra note here, at 372 (Madison's notes, June 22, 1787) (statement of Edmund Randolph).
  48. Id. at 372 (Madison's notes, June 22, 1787) (statement of Nathaniel Gorham); Id. at 373 (Madison's notes, June 22, 1787) (statement of James Madison). See also Id. at 216 (Madison's notes, June 12, 1787) (statement of George Mason) (noting, in addition, that if compensation for Members of Congress varied among the states, "an inequality would be felt among them"). Some delegates also argued that states distant from the national capital would bear a greater cost in compensating their Members for traveling to the nation's capital than closer states. 2 Farrand's Records, at 290-91 (Madison's notes, Aug. 14, 1787).
  49. 2 The Records of the Federal Convention of 1787, 290-91 (Max Farrand ed., 1911) [hereinafter Farrand's Records] (Madison's notes, Aug. 14, 1787).
  50. Id.
  51. Id.
  52. Id. at 291.
  53. Id. at 292-93.
  54. Id. at 293.
  55. Art. I, Sec. 6, Clause 1 Pay, Privileges, and Immunities. The Framers' decision that Members of Congress should be paid from the U.S. Treasury reflected their view that Members of Congress worked for the nation as a whole and should be compensated accordingly. See Art. I, Sec. 6, Cl. 1: Compensation of Members of Congress.
  56. 3 Joseph Story, Commentaries on the Constitution of the United States § 855 (1833) ("[T]he omission to provide some constitutional mode of fixing the pay of members of congress, without leaving the subject to their discretion, formed in some minds a strong objection to the constitution.").
  57. For example, in December 1787, during the Pennsylvania ratifying convention, delegate William Findley asked: "What can be a greater source of corruption than for the legislature to appoint officers and fix salaries?" Pennsylvania and the Federal Constitution 1787-1788, 775 (John Bach McMaster & Frederick D. Stone eds., 1888) (Wilson's notes, Dec. 5, 1787) (statement of William Findley). Despite these concerns, the Pennsylvania legislature ratified the Constitution on December 12, 1787. Introduction: Constitutional Convention.
  58. See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 508 (1992). Less than a month after the Constitution was submitted to the states for ratification, Edmund Randolph, who represented Virginia at the Federal Convention, wrote to the Virginia House of Delegates to explain why he was one of three delegates who refused to sign the nation's proposed charter. Randolph feared that, by signing the proposed Constitution, he would be unable to justify his pursuit of "amendments" to the document in the state ratifying conventions. In his letter, Randolph expressed support for various amendments to the Constitution, including one that would prevent Members of Congress from determining their own salaries. Letter from Edmund Randolph to the Speaker of the Virginia House of Delegates (Oct. 10, 1787), reprinted in 3 The Records of the Federal Convention of 1787, 123-27 (Max Farrand ed., 1911) [hereinafter Farrand's Records]. Despite his objections, Randolph later voted in favor of ratification at the Virginia convention. See David Loyd Pulliam, The Constitutional Conventions of Virginia from the Foundation of the Commonwealth to the Present Time 37 (1901). See also 2 Farrand's Records, supra note here, at 632-33 (recording Federal Convention delegate Elbridge Gerry's objections to the Constitution, including Congress's "unlimited power. . . over their own compensations"). For further discussion of Anti-Federalists' concerns about Members of Congress setting their own pay, see Bernstein, supra note here, at 509-13.
  59. 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 368 (2d ed. 1836) [hereinafter Elliot's Debates].
  60. Id.
  61. Id.
  62. Id. at 369.
  63. See id. at 369-70.
  64. See id. Madison also responded to concerns that Members of Congress would lower their compensation such that "only the rich" would "fill the offices of senators and representatives." Id. at 372. He argued that the people of the United States could respond by electing other Members to reverse such a law. Id. The Virginia Convention narrowly ratified the proposed Constitution on June 25, 1788. Introduction: Constitutional Convention.
  65. Bernstein, supra here, at 514. For more on the debate over the Bill of Rights, see Introduction: Bill of Rights (First Through Tenth Amendments).
  66. 1 Elliot's Debates, supra note here, at 330.
  67. Id.
  68. 1 Annals of Cong. 440-41 (June 8, 1789).
  69. See id. at 451. See also id. at 458 (statement of Rep. James Madison) (noting that the language of the draft amendment specifying when laws modifying congressional compensation could become effective was drawn from "several of the amendments which the different [state ratifying] conventions have proposed").
  70. Id. at 451.
  71. Id. at 457.
  72. Id. at 458.
  73. See Introduction: Bill of Rights (First Through Tenth Amendments).
  74. 1 Annals of Cong. 756-57 (Aug. 14, 1789).
  75. See id.
  76. Id. at 757.
  77. Bill of Rights (1791), Nat'l Archives (Sept. 20, 2022), [1] ("No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.").
  78. Bill of Rights (1791), Nat'l Archives (Sept. 20, 2022), [2] ("No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.").
  79. Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 532-33 (1992).
  80. See id.
  81. Id. at 534. During the nineteenth century, in response to various state petitions, Members of Congress introduced resolutions proposing amendments to the Constitution that sought to address the compensation issue. See Cong. Pay Amend., 16 Op. O.L.C. 85 (1992).
  82. Bernstein, supra note here, at 536-37.
  83. Id.
  84. Id. In 2017, Watson's grade on the paper was changed from a 'C' to an 'A'. Matt Largey, The Bad Grade That Changed The U.S. Constitution, NPR (May 5, 2017), [3].
  85. Bernstein, supra note here, at 537.
  86. Id. at 537-38. Watson later discovered that Wyoming ratified the Amendment in 1978. Id. at 537. For additional information on how Members of Congress are compensated, see, Ida A. Brudnick, Cong. Rsch. Serv., Report 97-1011, Salaries of Members of Congress: Recent Actions and Historical Tables (2022), [4]; Ida A. Brudnick, Cong. Rsch. Serv. Report 97-615, Salaries of Members of Congress: Congressional Votes, 1990-2022 (2022), [5].
  87. See Certification of Amendment to the Constitution of the United States Relating to Compensation of Members of Congress, 57 Fed. Reg. 21187, 21187 (1992). Under federal law, the Archivist of the United States is responsible for certifying that a proposed constitutional amendment has been ratified after receiving official notice from three-fourths of the states that they have adopted the amendment in accordance with the Constitution. See National Archives and Records Administration Act of 1984, Pub. L. No. 98-497, title I, §107(d), 98 Stat. 2280, 2291 (codified at 1 U.S.C. § 106b). For more information on the authentication of amendments to the Constitution, see Art. V: Authentication of an Amendment's Ratification.
  88. See H.R. Con. Res. 320, 102d Cong., 2d Sess. (1992); S. Con. Res. 120, 102d Cong., 2d Sess. (1992).
  89. Boehner v. Anderson, 30 F.3d 156, 162 (D.C. Cir. 1994). See also Schaffer v. Clinton, 240 F.3d 878, 882-86 (10th Cir. 2001) (determining that Representative Bob Schaffer lacked Article III standing to maintain a Twenty-Seventh Amendment challenge to the cost-of-living adjustment provision of the Ethics Reform Act of 1989), cert. denied sub nom. Schaffer v. O'Neill, 534 U.S. 992, 992 (2001).
  90. Boehner, 30 F.3d at 158. The plaintiff also challenged the Act's changes to the quadrennial pay raise system. Id. The Ethics Reform Act modified the quadrennial pay system by conditioning an adjustment to Members of Congress's pay (recommended by the President as informed by a pay adjustment commission) on Congress's enactment of a statute approving the pay adjustment. See id. at 163. It also required that an election of Representatives have intervened before such a law could take effect. Id. The court held that the plaintiff's challenge was not ripe for review. Id. Boehner also argued that a separate law cancelling the 1994 cost-of-living adjustment violated the Twenty-Seventh Amendment because it "varie[d] his compensation without an intervening election of Representatives." However, the court declined to consider this argument. Id. at 162-63.
  91. See id. at 158.
  92. Id. at 161.
  93. Id. at 158, 162.
  94. Id. at 162.
  95. See id.
  96. Id.
  97. Pub. L. No. 113-3, § 3, 127 Stat. 51, 51-53 (Feb. 4, 2013).
  98. Id.
  99. Id.
  100. For a more in-depth discussion of Article V, see Fifteenth Amendment Right of Citizens to Vote. See also Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 546-51 (1992) (discussing debates over the issues of "contemporaneity," "rescission," and "constitutionality").
  101. For more on this issue, see Art. V: Congressional Deadlines for Ratification of an Amendment. Beginning with its 1917 proposal of what would become the Eighteenth Amendment, Congress has specified a deadline of seven years for the ratification of every proposed amendment except for the proposal that became the Nineteenth Amendment recognizing women's suffrage. See Ratification of the Equal Rights Amendment, 44 Op. O.L.C. __ at *15 (2020).
  102. 256 U.S. 368, 375-76 (1921). At the time, the Court considered it "quite untenable" that the Congressional Pay Amendment remained pending before the states and could still be ratified. See id. at 375.
  103. 307 U.S. 433, 453 (1939) (discussing Dillon, 256 U.S. at 375-76). In Coleman, Chief Justice Charles Evans Hughes suggested, in an opinion titled "Opinion of the Court," that Congress is responsible for "promulgating" the "adoption" of a constitutional amendment and, consequently, Congress had the power to determine whether ratification of a proposed amendment occurred within a "reasonable time." Coleman, 307 U.S. at 453-56. However, subsequent commentators have argued that this dicta in Coleman is incorrect because the Constitution gives Congress no such role. See, e.g., Ratification of the Equal Rights Amendment, supra note here, at *30-31.
  104. See Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 692 (1993) (discussing the strengths and weaknesses of this argument).
  105. See id.
  106. See Certification of Amendment to the Constitution of the United States Relating to Compensation of Members of Congress, 57 Fed. Reg. 21187, 21187 (1992). At the time, the Department of Justice's Office of Legal Counsel (O.L.C.) advised that the Amendment became part of the Constitution once the Archivist certified that the requisite number of states had ratified the Amendment. Congressional Pay Amendment, 16 Op. O.L.C. 85 (1992). Rejecting dicta to the contrary in Dillon, the OLC stated that, in the absence of a congressionally proposed deadline, an amendment remains pending before the states. Id. at 90, 97. Otherwise, in the O.L.C.'s view, the Article V process would become unworkable because states would not know whether they could still ratify an amendment. Id. at 97 ("The implicit time limit thesis is thus deeply implausible, because it introduces hopeless uncertainty into that part of the Constitution that must function with a maximum of formal clarity if it is to function."). For an argument that Congress may rescind its proposal of an amendment to the Constitution by a two-thirds vote in both Houses, see Paulsen, supra note here, at 727-29.
  107. For more on this issue, see Art. V: Effect of Prior Rejection of an Amendment or Rescission of Ratification.
  108. See H.R. Con. Res. 320, 102d Cong., 2d Sess. (1992); S. Con. Res. 120, 102d Cong., 2d Sess. (1992).
  109. 307 U.S. 433, 448-50 (1939).
  110. See id.
  111. See id.
  112. See Ratification of the Equal Rights Amendment, supra note here, at *30 (expressing the view that Article V "contemplates no role for Congress in the ratification process after it proposes an amendment"); Congressional Pay Amendment, supra note here, at 98-99 ("[C]ongressional promulgation is neither required by Article V nor consistent with constitutional practice."). The Twenty-Seventh Amendment's ratification also raised the question of whether a state may ratify an amendment after earlier rejecting it. By accepting the ratifications of New Hampshire and New Jersey, both of which had previously rejected the Twenty-Seventh Amendment, the National Archivist implicitly endorsed the notion that a state may ratify an amendment after rejecting it. See Certification of Amendment to the Constitution of the United States Relating to Compensation of Members of Congress, 57 Fed. Reg. 21187, 21187 (1992). See also Bernstein, supra note here, at 547-58.