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 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 apportionment15 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 Amendment20 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
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Footnotes
- 1
- U.S. Const. amend. XXVII.
- 2
- See Amdt27.3 Scope of the Twenty-Seventh Amendment.
- 3
- See Amdt27.4 Implications for the Article V Amendment Process. For an in-depth discussion of Article V, see Article V: Amending the Constitution.
- 4
- See Amdt27.2.1 Debates in the Federal Convention on Congressional Compensation.
- 5
- See id.
- 6
- See id.
- 7
- See id. See also U.S. Const. art. I, § 6, cl. 1; ArtI.S6.C1.1 Compensation of Members of Congress.
- 8
- See Amdt27.2.1 Debates in the Federal Convention on Congressional Compensation.
- 9
- See id.
- 10
- See id.
- 11
- See Amdt27.2.4 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 Intro.3.7 Proposed Amendments Not Ratified by the States.
- 16
- See Amdt27.2.4 Proposal of the Congressional Pay Amendment.
- 17
- See Amdt27.2.5 Ratification of the Twenty-Seventh Amendment.
- 18
- See id.
- 19
- See id.
- 20
- See id.
- 21
- See id.
- 22
- See id.
- 23
- See id.