Twenty-Seventh Amendment To The United States Constitution

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The Twenty-seventh Amendment ( Amendment XXVII, also known with a refreshing lack of imagination as the Congressional Pay Amendment or the Congressional Compensation Act of 1789 ) is, by some cosmic joke, the most recently adopted amendment to the United States Constitution. This particular piece of legislative wisdom dictates that any alteration—be it an increase or a decrease—to the salary of members of Congress can only take effect after the next election of the House of Representatives has concluded. A concept so straightforward, one might assume it would be ratified with dispatch. One would, of course, be wrong. It was, in fact, one of the very first proposed.

The 1st Congress, in its infinite foresight, submitted this amendment to the states for ratification on September 25, 1789. It was part of a larger package, a baker's dozen of proposed amendments ( Articles I–XII ). While the subsequent ten Articles, numbers 3 through 12, found relatively swift acceptance and were duly ratified in 1791 to become the venerated Bill of Rights, the first two proposals were left to languish. These forgotten siblings were the Twenty-seventh Amendment itself and the rather optimistically named Congressional Apportionment Amendment. Neither garnered the necessary number of state ratifications to come into force at the time, fading into historical obscurity like a forgotten grocery list.

The proposed congressional pay amendment remained largely forgotten, a dusty relic of early American legislative idealism, until 1982. This is where the story takes a turn toward the absurdly human. Gregory Watson, then a 19-year-old undergraduate student at the University of Texas at Austin, stumbled upon it while researching a paper for a government class. His audacious claim? That the amendment, despite its two-century nap, was still "live" and perfectly eligible for ratification. What followed was a nationwide campaign, spearheaded by Watson, to complete its long-overdue journey to constitutional inclusion. The amendment, against all odds and the general inertia of the universe, eventually became a part of the United States Constitution, officially taking effect on May 5, 1992.

The foundational idea behind this amendment, a rather quaint notion in some circles, was to introduce a measure of accountability and thus reduce potential for corruption within the legislative branch. By mandating that any change in a congressperson's salary could only take effect after an intervening election, the public would theoretically have the opportunity to remove from office those members of Congress who might be perceived as having voted themselves an "overly generous" pay raise. Whether this noble intent has actually produced any discernible change in congressional behavior remains, much like the meaning of life, a matter of considerable debate and skepticism. One might argue its impact is as subtle as a whisper in a hurricane. An unforeseen, and frankly rather ironic, consequence of the amendment's wording is that, unlike many federal executive branch employees or even Congressional staff, members of Congress continue to receive their full salaries during a government shutdown. The rationale, which has yet to be definitively ruled upon by the courts, hinges on the interpretation that ceasing pay for a cessation of work could be construed as a "decrease in salary," an action explicitly prohibited from taking immediate effect by the amendment.

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."

The Twenty-seventh Amendment, as penned in the original hand-written copy of the proposed Bill of Rights, 1789. A testament to foresight, or perhaps just a very long game.

Historical background

The very concept of congressional salaries, and the potential for self-serving adjustments, was a point of contention even during the nascent stages of the republic. Several of the original states raised concerns regarding Congressional compensation as they grappled with the weighty decision of whether to ratify the newly drafted Constitution. It appears that the fear of unchecked power, particularly over one's own purse, is a timeless human condition.

North Carolina's ratifying convention, for instance, put forth a series of proposed amendments to the Constitution. Among these was a clear directive: "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." Not to be outdone, Virginia's ratifying convention, demonstrating a remarkable convergence of thought, recommended an identical amendment. It seems some ideas are just too good, or too obvious, to be ignored.

New York's declaration of ratification also arrived with a similar, if slightly more verbose, amendment proposal: "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." The message was clear: if you want more money, let the people decide if you still deserve your job first. A novel concept, really.

Proposal by Congress

This amendment did not simply materialize out of thin air; it was one of several proposed amendments to the Constitution that Representative James Madison of Virginia, often lauded as the "Father of the Constitution," introduced in the House of Representatives on June 8, 1789. Madison's initial, rather sensible, intention was to append this particular clause to the end of Article I, Section 6, Clause 1 of the Constitution, which already stipulated that "The 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." This and Madison's other proposals were, as is the custom, referred to a committee. This committee, a microcosm of the nascent union, consisted of one representative from each state.

After dutifully emerging from the committee, the full House engaged in a robust debate on the issue. On August 24, 1789, it passed this amendment along with 16 other articles of amendment. The legislative journey then continued to the Senate, which, in its wisdom, proceeded to make 26 substantive alterations to the proposals. Finally, on September 9, 1789, the Senate approved a somewhat culled and consolidated package of 12 articles of amendment. One assumes the debates were riveting, or at least lengthy.

To reconcile the numerous differences between the House and Senate versions of what would become the Bill of Rights proposals, a House–Senate conference committee convened on September 21, 1789. By September 24, 1789, the committee issued its report, which served to finalize the 12 proposed amendments for both chambers to consider. The House swiftly agreed to the conference report that same day, with the Senate concurring the following day. Efficiency, it seems, was occasionally possible even then.

What would eventually, and with considerable delay, become the Twenty-seventh Amendment was conspicuously listed second among the 12 proposals dispatched on September 25, 1789, to the states for their thoughtful consideration. As previously noted, ten of these, specifically numbers 3–12, achieved ratification a mere 27 months later, becoming enshrined as the revered Bill of Rights. The remaining proposal, the Congressional Apportionment Amendment, has, to this day, not been ratified by enough states to become part of the Constitution. A testament to how some ideas are simply not meant to be, or perhaps just need another 200 years to simmer.

The article pertaining to Congressional compensation initially saw ratification by seven states through 1792, including the newly admitted Kentucky. And then, silence. For a full eighty years, not another state bothered to ratify it. It lay dormant, a legislative Rip Van Winkle, until the Ohio General Assembly roused itself to ratify it on May 6, 1873. This sudden burst of activity was not due to a newfound appreciation for constitutional theory, but rather a rather pointed protest against an unpopular Congressional pay raise of the era. A century later, on March 6, 1978, the Wyoming Legislature followed suit, also ratifying the article. One can only assume another egregious pay hike had ruffled some feathers.

Revival of interest

External videos Q&A interview with Gregory Watson, July 15, 2018 , C-SPAN

This proposed amendment, as previously noted, was largely relegated to the dusty annals of historical footnotes until Gregory Watson, an undergraduate student at the University of Texas at Austin, decided to write a paper on it in 1982 for a political science course. One imagines the teaching assistant, likely burdened by the weight of grading countless mediocre essays, must have sighed dramatically when confronted with Watson's unorthodox thesis. In his paper, Watson presented the rather audacious argument that the amendment, despite its prolonged slumber, was still "live" and could, in fact, be ratified. Watson's reward for this groundbreaking insight? A rather uninspiring "C" grade.

Undeterred by this rather dim academic assessment, Watson, with a tenacity that would eventually reshape the Constitution, appealed the grade to the course instructor, Sharon Waite. Waite, in what must now be considered a monumental oversight, declined to overrule the teaching assistant. Her recollection, as candid as it is telling, was: "I kind of glanced at it, but I didn't see anything that was particularly outstanding about it and I thought the C was probably fine." A "C" for initiating a constitutional amendment. The irony, one might say, is palpable enough to choke on. Watson, rather than accepting his academic fate, responded by launching a nationwide letter-writing campaign to state legislatures, effectively challenging the entire federal establishment with a paper that barely passed muster in a college classroom.

The legal landscape surrounding dormant amendments was, at best, murky. In Dillon v. Gloss, the Supreme Court had once mused that "ratification [of a proposed constitutional amendment] must be within some reasonable time after the proposal." The Court even went so far as to suggest that it was "quite untenable" to consider proposed amendments from 1789, 1810, and 1861 as still pending. A logical conclusion, one might think, given the average human lifespan.

However, the Court later adjusted its stance in Coleman v. Miller, ruling that the validity of state ratifications for a constitutional amendment was a "political question," and therefore not within the proper purview of the judiciary. This effectively punted the ball back to Congress, asserting that it was up to the legislative branch to determine whether an amendment, lacking a specific time limit for ratification, remained viable after an extended period. This determination would be based on "the political, social and economic conditions which have prevailed during the period since the submission of the amendment." A rather convenient way to avoid making a difficult decision, wouldn't you say?

Watson, a man clearly unburdened by the cynicism that typically accompanies such endeavors, poured $6,000 of his own money into sponsoring his nationwide effort. When he began his campaign in early 1982, his knowledge of past ratifications was incomplete. He was aware of only six states having ratified and erroneously believed that Virginia's 1791 approval was the last action any state had taken. It was only in 1983 that he unearthed the fact that Ohio had approved the amendment in 1873, and in 1984, he learned of Wyoming's 1978 ratification. Even more remarkably, it wasn't until 1997, well after the amendment had officially been adopted, that he discovered Kentucky had ratified it way back in 1792. The Kentucky lawmakers themselves were equally unaware of their state's historical diligence; in a testament to Watson's relentless pursuit of a "50-state sweep," the Kentucky General Assembly post-ratified the amendment in 1996 (Senate Joint Resolution No. 50), at Watson's specific request, blissfully ignorant that the task had already been completed 204 years prior. One can only imagine the bureaucratic paper shuffling involved in ratifying something twice.

The tide began to turn in April 1983, when Maine became the first state to ratify the amendment as a direct consequence of Watson's persistent campaign. Colorado followed in April 1984. A cascade of state legislatures then joined the movement, with some even reaffirming the amendment despite having, in their own forgotten histories, affirmed it centuries ago. The race to be the 38th state, the threshold for ratification, saw Michigan and New Jersey vying for the honor. Michigan, with a slight edge in legislative speed, ratified the amendment on May 7, 1992, thereby triggering the official certification. New Jersey, not to be completely left out, ratified the amendment regardless, heroically overturning its own rejection of the amendment from centuries earlier. Better late than never, I suppose, but the efficiency leaves much to be desired.

Years later, in 2016, Zach Elkins, a professor in the University of Texas at Austin Department of Government, developed an interest in Watson's remarkable story and began to meticulously document its origins. His detective work led him to track down Sharon Waite, Watson's former instructor, who had left academia in the 1980s to work on her family's citrus farm. Elkins, perhaps recognizing the cosmic injustice of it all, suggested to Waite that they rectify Watson's infamous grade. In 2017, Elkins submitted a grade change form, complete with Waite's signature, changing Watson's grade to an A+. In an interview, Waite, with a newfound appreciation for tenacious citizenship, conceded, "Goodness, he certainly proved he knew how to work the Constitution and what it meant and how to be politically active, [...] So, yes, I think he deserves an A after that effort—A-plus!" It's worth noting that A+ is technically not a valid grade at the University of Texas, so while Elkins urged the registrar to preserve it as the sole A+ ever recorded, it likely defaulted to an A. In a final flourish of belated recognition, the Texas Legislature passed a congratulatory resolution in the same year, acknowledging Watson's successful grade change and his enduring contribution to civic engagement. A resolution, one might observe, that took significantly less time to pass than the amendment itself.

Ratification by the states

Ratified amendment, 1789–1792
Ratified amendment, 1873–1978
Ratified amendment, 1983–1991
Ratified amendment, May 1992 1
Ratified post-enactment, 1992–present
Ratified twice (NC: 1789 and 1989; KY: 1792 and 1996)
Have not ratified amendment

1 The Archivist did not certify the amendment until May 18, 1992, with 40 states listed as ratifying the amendment. Kentucky's then-unknown 1792 ratification would have made it 41 states that had ratified at the time of certification, three more than the 38 required for a three-quarters majority. Such is the nature of historical record-keeping.

The following states, in a rather staggered display of civic duty, eventually ratified the Twenty-seventh Amendment:

Maryland – December 19, 1789
North Carolina – December 22, 1789 (Reaffirmed on July 4, 1989, just in case they forgot the first time)
South Carolina – January 19, 1790
Delaware – January 28, 1790
Vermont – November 3, 1791
Virginia – December 15, 1791
Kentucky – June 27, 1792 (Reaffirmed on March 21, 1996, because why not?)
Ohio – May 6, 1873 (A century-long nap, then a sudden burst of indignation)
Wyoming – March 6, 1978
Maine – April 27, 1983
Colorado – April 22, 1984
South Dakota – February 21, 1985
New Hampshire – March 7, 1985 (After a rather decisive rejection on January 26, 1790. They eventually came around.)
Arizona – April 3, 1985
Tennessee – May 28, 1985
Oklahoma – July 1, 1985
New Mexico – February 14, 1986
Indiana – February 24, 1986
Utah – February 25, 1986
Arkansas – March 13, 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
Michigan – May 7, 1992

On May 18, 1992, the Archivist of the United States, Don W. Wilson, officially certified that the amendment's ratification process had finally been completed. A mere 202 years, give or take a few months. Michigan's ratification on May 7, 1992, was initially believed to be the crucial 38th state, the tipping point. However, the belated discovery of the Kentucky General Assembly's earlier ratification—during that state's initial month of statehood, no less—shifted the historical credit. This meant that Alabama (which acted after Missouri on May 5, 1992) was, in fact, the state that finalized the amendment's addition to the Constitution. History, it seems, has a sense of humor about precision.

The amendment was subsequently ratified by several other states, perhaps out of a desire not to be left out of the party, even if it was two centuries late:

New Jersey – May 7, 1992 (After a rather emphatic rejection on November 20, 1789. Persistence, or perhaps just a change of heart, finally paid off.)
Illinois – May 12, 1992
California – June 26, 1992
Rhode Island – June 10, 1993 (Following a rejection on June 7, 1790. They clearly needed some time to think it over.)
Hawaii – April 29, 1994
Washington – April 6, 1995
Nebraska – April 1, 2016 (A very long time to make up their mind, but at least they weren't April Fooling.)

Remarkably, four states have still not ratified the Twenty-seventh Amendment: Massachusetts, Mississippi, New York, and Pennsylvania. One can only wonder what deep philosophical objections, or perhaps just sheer legislative apathy, prevents them from joining the rest of the union in this particular historical footnote.

Affirmation of ratification

On May 19, 1992, the Twenty-seventh Amendment's certificate of ratification, bearing the signature of the Archivist of the United States, Don W. Wilson, dated May 18, 1992, was officially printed and published in the Federal Register. One imagines it was a rather understated affair for such a long-awaited event.

In the act of certifying that the amendment had been duly ratified, the Archivist of the United States was operating under the statutory authority explicitly granted to his office by the Congress itself, as outlined in 1 U.S.C. § 106b. This statute rather plainly states:

"Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States."

The response from Congress to this administrative action was, predictably, rather sharp. Senator Robert Byrd of West Virginia, a man known for his deep reverence for congressional procedure, publicly chastised Wilson for certifying the amendment without prior congressional approval. While Byrd himself supported the amendment's acceptance, he passionately argued that Wilson had deviated from "historic tradition" by failing to await congressional consideration of the ratification's validity, especially given the extraordinarily protracted period—over 202 years—since the amendment's initial proposal. Speaker of the House Tom Foley and other influential figures even went so far as to call for a legal challenge to the validity of the ratification. One might suggest they were more concerned with who got to take credit than the actual constitutional principle.

In a move that ultimately affirmed the amendment's legitimacy, on May 20, 1992, both houses of the 102nd Congress passed their own versions of a concurrent resolution. This action, drawing authority from the precedent recognized in Coleman and mirroring the process established by the ratification of the Fourteenth Amendment, formally agreed that the amendment had been validly ratified. This was despite the rather inconvenient fact that the task had indeed taken more than two centuries. The Senate's approval of the resolution was a unanimous (99 to 0) display of agreement, and the House vote was a similarly overwhelming 414 to 3. It seems even Congress, eventually, can agree on something.

The Twenty-seventh Amendment's certification, a document that took over two centuries to produce, now resides in the National Archives. A monument to patience, or perhaps just bureaucratic inertia.

Legal issues

Despite its belated ratification, or perhaps because of it, the Twenty-seventh Amendment has not been immune to legal scrutiny and challenges, particularly concerning the intricacies of congressional compensation.

Cost-of-living adjustments

Congressional cost-of-living adjustments (COLAs), a perennial point of public contention, have been largely upheld against legal challenges predicated on this amendment. In the case of Boehner v. Anderson, the United States Court of Appeals for the District of Columbia Circuit ruled that the first COLA in question was in accord with the amendment's provisions. The court reasoned that it took effect after the election that followed its legislative approval. However, the court, ever cautious, declined to issue a broader ruling on the constitutionality of COLAs in general. In a separate but related case, Schaffer v. Clinton, the United States Court of Appeals for the Tenth Circuit explicitly disagreed with the Boehner decision on a procedural point, ruling that merely receiving such a COLA does not confer upon members of Congress the necessary standing to challenge it in federal court. The Supreme Court of the United States wisely, or perhaps cowardly, declined to hear either case, thus leaving the amendment's definitive effect on COLAs largely unaddressed by the nation's highest judicial authority. A clear sign that some questions are too hot to handle.

No Budget, No Pay Act

The No Budget, No Pay Act was a legislative proposal that emerged in 2012 and again in 2013. Its intent was straightforward, almost deceptively so: to prevent lawmakers from receiving their salaries during a government shutdown. The bill garnered a limited degree of bipartisan support, a rare feat in itself, but immediately encountered constitutional hurdles. Concerns were vociferously raised that the proposed act directly violated the Twenty-seventh Amendment, which, as we now know, explicitly states that Congress may not "vary" the compensation of its members until the next election has intervened. The argument hinged on whether withholding pay during a shutdown constituted a prohibited "decrease" in salary. The bill, perhaps predictably, did not pass, and the Supreme Court has, to date, not addressed its constitutionality. It seems even the most obvious attempts to hold politicians accountable can run aground on the shoals of historical legislative language.