Twenty-Seventh Amendment

Ratification history

The Congressional Pay Amendment — like several of the other first amendments — had its genesis in the petitions of the states ratifying the Constitution, and Congress referred it to the state legislatures at the same time as the proposals that became the Bill of Rights, in 1789. It was ratified by only six of the eleven states then needed and rejected by five, and it had "long been assumed to be dead." Apart from the idiosyncratic action of the Ohio legislature, which ratified the proposal in 1873 in protest of a controversial congressional pay increase, the provision lay dormant until the 1980s, when an aide to a Texas legislator discovered it and began a campaign that culminated roughly ten years later in its ratification in 1992 — more than 202 years after proposal.

Historical background

Federal Convention debate

Congressional-compensation debates trace to Great Britain's "ancient practice" of paying legislators, which the American colonies and later the states inherited; under the Articles of Confederation each state paid its own delegates to the Confederation Congress. The Virginia Plan's early draft called for Members of the proposed bicameral legislature to receive "liberal stipends," a word the Convention struck at Benjamin Franklin's motion on June 12, 1787 out of concern the term invited abuse.

The Convention split three ways over who should set that compensation. One faction, led by Madison, wanted the Constitution itself to fix a standard tied to an objective measure (Madison proposed the average price of a commodity such as wheat) rather than let Members "regulate their own wages." A second faction, including Nathaniel Gorham of Massachusetts, argued Congress should set its own pay "from time to time" by ordinary legislation, paid from the national Treasury, so compensation could track changing circumstances. A third faction, led by Roger Sherman, argued each state should set and pay its own delegates' compensation from the state treasury — partly so that Senators, whom state legislatures then elected, would not "lose sight of their constituents." Opponents of state control, including Alexander Hamilton and Oliver Ellsworth, countered that individual states would gain improper leverage over Members despite "the whole nation" having "an interest in the attendance and services of the members," and that frugal states might set pay so low that talented candidates would decline to serve.

On August 14, 1787, delegate Gouverneur Morris moved to have Congress — not the states — set Members' pay from the national Treasury, arguing "there could be no reason to fear that they would overpay themselves." The Convention adopted that approach and rejected a fixed constitutional amount, producing the Compensation Clause's final text: "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." See Compensation Clause for the Clause's own drafting history.

Ratification-era debate

The original Constitution let a sitting Congress raise or lower its own pay effective immediately, with no intervening election — a design several state ratifying conventions criticized. At Virginia's convention in June 1788, Patrick Henry objected that Members would set their compensation "by themselves, without limitation or restraint," and so could "indulge themselves in the fullest extent" by making pay "as high as they please." Madison, defending the Clause, argued that letting state legislatures set congressional pay would make the national government dependent on the states, that state legislatures had not historically abused the analogous power, and that Members who abused it would incur their constituents' "general detestation." New York, North Carolina, and Virginia's ratifying conventions all recommended a corrective amendment; New York's own ratification instrument (26 July 1788), reprinted verbatim in Elliot's Debates vol. 1, is the primary-source location for the quotation above:

"That 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 representives until after a subsequent election shall have been had." — New York ratification instrument, recommended amendment, 26 July 1788, quoted in Elliot's Debates vol. 1

Proposal (1789)

Early in the First Congress, Madison drew on these state recommendations in his series of proposed constitutional amendments. The third resolution — offered first as a revision to the Compensation Clause itself, not a standalone article — provided "[n]o law varying the compensation last ascertained shall operate before the next ensuing election of Representatives." Madison explained there was "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," even though he did not consider the safeguard "absolutely necessary." Congress approved the Congressional Pay Amendment by the required two-thirds vote on September 25, 1789, and submitted it to the states alongside eleven other proposed amendments, including the ten that became the Bill of Rights, as the second of the twelve articles:

"Art. II. No law varying the compensation for services of the senators and representatives shall take effect, until an election of representatives shall have intervened." — Congress, Amendments Agreed to and Proposed to the States, Art. II, 25 Sept. 1789, quoted in Elliot's Debates vol. 1

Ratification (1791-1992)

Elliot's Debates reprints the earliest state returns, taken article by article rather than as a single up-or-down vote on all twelve — Pennsylvania, for example, agreed to articles 3 through 12 but not to Art. I (apportionment) or Art. II (pay): "Agreed to the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th articles of the said amendments." New Hampshire, New York, Delaware, and New Jersey each accepted every article except one (New Hampshire, New York, and New Jersey rejecting Art. II; Delaware rejecting Art. I), while Maryland, South Carolina, North Carolina, Rhode Island, and Virginia accepted all twelve. By the end of 1791 only six of the then-fourteen states had ratified — short of the eleven then needed for three-fourths. The Ohio legislature ratified in 1873 to protest a congressional pay raise, after which the proposal lay dormant until 1982, when University of Texas at Austin undergraduate Gregory D. Watson wrote a political-science paper arguing the still-pending proposal remained open to ratification because Congress had set it no deadline. Watson's instructor gave the paper a grade of "C," reportedly calling the Amendment a "dead letter" — a grade the University changed to an "A" in 2017. Watson then campaigned state legislatures to ratify; more than thirty did so between the mid-1980s and early 1990s. National Archivist Don W. Wilson, on the Justice Department's Office of Legal Counsel's advice, proclaimed the Amendment ratified on May 7, 1992, and the House and Senate each subsequently adopted a concurrent resolution recognizing the ratification.

Scope of the Twenty-Seventh Amendment

The Supreme Court has never decided a case interpreting the Twenty-Seventh Amendment. The one federal appellate decision on point is Boehner v. Anderson (D.C. Cir. 1994), which upheld the Ethics Reform Act of 1989's annual cost-of-living salary adjustment against a challenge that odd-year adjustments were "laws" varying compensation without an intervening election; the court held the relevant "law" for Twenty-Seventh Amendment purposes was the 1989 Act itself, which took effect only after the 1990 election, not each subsequent automatic annual adjustment. The same panel dismissed a related challenge to the Act's quadrennial pay-raise mechanism as unripe. Schaffer v. Clinton (10th Cir. 2001) later held a sitting Representative lacked Article III standing to bring the same cost-of-living challenge. Because of this thin case law, it remains unclear how novel pay-withholding mechanisms — such as the 2013 No Budget, No Pay Act, which would have withheld Members' salaries until their chamber passed a budget resolution, releasing any withheld funds no later than the end of the Congress to avoid a Twenty-Seventh Amendment problem — would fare in litigation; that particular Act was never tested because both chambers met its deadline.

Implications for the Article V amendment process

Beyond the "reasonable time" question addressed in the Doctrinal notes below, the Amendment's unusual 1992 ratification raised a second, still-unresolved Article V question: whether Congress has any role in recognizing that a ratification has occurred. Coleman v. Miller (1939) had suggested, in dicta, that Congress may "promulgate" an amendment's adoption, pointing to Congress's 1868 concurrent resolution recognizing the Fourteenth Amendment's ratification despite irregularities — but the Coleman Court also stressed the Fourteenth Amendment's unique Reconstruction-era circumstances, and commentators, including the Office of Legal Counsel, have since argued Article V "contemplates no role for Congress in the ratification process after it proposes an amendment." The Twenty-Seventh Amendment's own 1992 concurrent resolutions (H.R. Con. Res. 320 and S. Con. Res. 120) followed the National Archivist's certification rather than preceding or effecting it, leaving Congress's role — if any — undecided rather than resolved by this instance. The Archivist's acceptance of ratifications from New Hampshire and New Jersey, both of which had earlier rejected the Amendment, also implicitly confirmed a state may ratify after rejecting.

Doctrinal notes

Dillon v. Gloss dictum on stale proposals

Before the 1992 ratification, the Amendment was one of the "old" pending proposals the Court had in mind, in dictum, in Dillon v. Gloss:

"[U]nless there is a limitation of time for ratification, proposed amendments would be open to ratification for all time, ... four amendments proposed long ago—two in 1789, one in 1810 and one in 1861—are still pending and in a situation where their ratification in some of the States many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more States to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable." — Dillon v. Gloss, 256 U.S. 368, 375 (1921)

The two 1789 proposals were the Congressional Pay Amendment and an apportionment amendment that has never been ratified. The Congressional Pay Amendment's eventual 1992 ratification tested Dillon's "reasonable time" dictum from the opposite direction; the Justice Department's Office of Legal Counsel concluded that, absent a congressional deadline, an amendment remains open to ratification indefinitely, reasoning that an implicit-deadline rule "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." See Amendment Process Clause for the full Article V ratification-timing doctrine.

Originalist note

The Amendment's substance was settled at the Founding, not by the Court: Madison's own June 22, 1787 Convention remarks — that members of the legislature were "too much interested to ascertain their own compensation" and that it "wd. be indecent to put their hands into the public purse for the sake of their own pockets," recorded on Compensation Clause — supply the anti-self-dealing rationale the 1789 proposal was written to enforce: a pay-varying law cannot benefit the sitting Congress that passed it. Patrick Henry's 1788 Virginia-convention objection (Members could set pay "as high as they please") and Madison's contemporaneous defense, recorded above under Ratification-era debate, show the Founding generation debated this exact anti-self-dealing question directly, even though the corrective amendment itself did not clear three-fourths of the states until 1992. The 202-year gap between proposal and ratification raises a distinct originalist question — whether Article V contemplates ratification across "generations now largely forgotten," per Dillon's dictum above — that belongs to Article V doctrine rather than to the Amendment's own text. No founding-era source in the wiki directly addresses that timing question.