Thanks to the flexibility of its language, the U.S. Constitution has endured for 225 years.
It is not the identical document ratified in 1789. It has been amended, but not very often.
The first 10 were included in the Bill of Rights to ensure acceptance of the Constitution. Since ratification there have been just 17 amendments, or perhaps only 15, since the 18th and 21st negated each other.
Amendment of the Constitution often happens in bursts. Tumultuous times – the Civil War and the Civil Rights Movement – account for six amendments. Four were passed in the 1910s.
Since the end of the chaotic 1960s and the Vietnam War, only one amendment has been ratified, and it passed in an unusual fashion. The U.S. Constitution’s most recent amendment is the 27th, ratified May 7, 1992, and certified May 18. It demands any changes to congressional compensation take effect after the next election of members for the House of Representatives.
It reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
What makes the 27th Amendment bizarre is the lapse between proposal and ratification: 202 years, seven months, 12 days.
During the Constitutional Convention of 1787, North Carolina, Virginia and New York supported an amendment requiring the delay of any pay raise – or cut – Congress gave itself until the succeeding federal election.
The amendment was one of several offered to the House by James Madison on June 8, 1789. The House approved it among 16 amendments it wanted to consider.
The Senate version narrowed the list to 12, but included the compensation measure. After both chambers agreed to a list of 12 amendments through a conference committee, they were approved on Sept. 24, 1789, and sent for state perusal the next day.
Ten were ratified to become the Bill of Rights. The amendments dealing with congressional apportionment and compensation did not receive sanction from two-thirds of the states.
That could have been the end of the issue, but in 1939 the U.S. Supreme Court heard Coleman v. Miller, a case concerning the Child Labor Amendment.
In 1917, Congress set a deadline for passage of the Prohibition Amendment – the first time it had imposed a time limit on ratification. In Coleman v. Miller, it was asserted that the Child Labor Amendment could not be ratified since 15 years had passed since congressional approval.
The court ruled Congress has the power to put a proposed amendment on a clock, or leave it indefinitely before the states as pending business. Hence, the amendments dealing with congressional apportionment (called Article the First) and child labor remain before the states, as did the compensation measure.
Though it wasn’t called the 27th Amendment at the time, six states approved it by 1792. It then languished for nearly 200 years, receiving only one additional sanction from Ohio on May 6, 1873.
The state approved in disgust with the “Salary Grab Act,” which doubled the salaries of the president and the Supreme Court justices, but also sneaked in a retroactive 50 percent salary increase for Congress. Howls of public protest forced repeal of the congressional pay raise.
Wyoming became the ninth state to ratify on March 6, 1978, also in protest of a congressional pay hike. But interest in the amendment was truly rekindled in the early 1980s.
In 1982, University of Texas undergraduate Gregory Watson became interested in the 27th Amendment. After submitting a research paper arguing the amendment was alive and ratifiable – he received a C – Watson undertook a letter-writing campaign urging state legislatures to pass the measure.
After the lame-duck assembly of Congress in December 1982, there were many sympathetic ears. The House voted itself a retroactive salary increase during the unproductive session, and the amendment provided a vent for public frustration. Maine approved on April 27, 1983. Oklahoma became the 16th state to ratify on July 1, 1985.
Because the proposal was 200 years old, some legislative reports were lost. Though the 27th Amendment was officially ratified with Michigan’s vote, the two-thirds minimum was actually achieved with the votes of Missouri and Alabama two days earlier. The record of the Kentucky General Assembly’s approval on June 27, 1792, was not recovered until five years after the amendment’s passage.
Congressional members had some choice words for Don W. Wilson, archivist of the United States, after he certified ratification.
The authority of the office is granted by Congress, and many members believed two centuries necessitated further review and approval by the chambers.
However, neither the House nor Senate were averse to the language itself, and passed resolutions within two weeks stating the amendment was properly ratified.
The amendment does not affect cost-of-living adjustments for Congress. The Supreme Court has never heard a 27th Amendment case, but the District of Columbia circuit appeals court ruled all COLA provisions of the Ethics Reform Act beyond the reach of the amendment in Boehner v. Anderson (1992).
The 10th Circuit court ruled in Schaffer v. Clinton (2001) that members of Congress may not challenge the COLAs through judiciary actions.