June 13, 2012 – Essay #83 –Amendment XXVII – Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic
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 27th Amendment states that any law Congress passes that alters their compensation cannot take effect until after the next election.
On September 25, 1789, Congress proposed twelve constitutional amendments. In a little over two years, ten of these were ratified by the states. These very first amendments to the Constitution became our revered Bill of Rights.
The first rejected amendment proscribed a complex formula for determining the size of the House of Representatives. The second failed amendment, known as the Compensation Amendment, was written by James Madison in response to Antifederalist claims that Congress possessed the power to vote themselves rich salaries. Although this amendment failed in 1791, it eventually became the 27th Amendment.
The 11th Amendment took less than a year to ratify. Prohibition (18th Amendment) took 14 months, while repeal (21st Amendment) took only nine months. Women’s suffrage (19th Amendment) took 14 months to ratify. Giving 18 year olds the right to vote (26th Amendment) took only a little over three months. So why did it take 203 years to ratify the 27th Amendment?
In 1791, Americans didn’t see compensation of Congress as a big issue—at least, not enough of an issue to threaten liberty. If Congress became too greedy, voters would simply throw them out of office. In 1873, Congress did vote itself a retroactive raise. In a pique, Ohio ratified the Compensation Amendment. No other states followed suit, so the amendment languished—until the 1980s. Surprisingly, a grassroots campaign was ignited by an undergraduate term paper written by Gregory Watson. (He received a C grade for the paper.) On May 7, 1992, the Compensation Amendment was finally ratified by enough states to make it officially the 27th Amendment.
The irony is that this two-century process may have been made meaningless by later court decisions. Since the amendment was ratified, the only court challenge claimed that the annual Cost of Living Allowance (COLA) violated this amendment. A few taxpayers and a congressman filed suit, but a lower court ruled that the taxpayers did not have standing (standing is a legal interest in the issue that entitles the party to seek relief). It further ruled that an automatic COLA was not an independent law subject to the amendment. On appeal, the Tenth Circuit ruled that the congressman also did not have standing. If neither taxpayers nor congressmen have standing, it’s hard to imagine a successful challenge.
Madison had crafted a clear, single sentence that 203 years later became part of the Constitution. It’s doubtful that Congress would be foolish enough to violate this minor restriction on their pay increases.
We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States. This is backward. The Constitution was not written for politicians. Our political leaders have no motivation to abide by a two hundred year old restraining order. Americans must enforce the supreme law of the land. The first outsized words of the Constitution read We the People. It’s our document. It was always meant to be ours, not the government’s. It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.
James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.