Twenty‐seventh Amendment

Twenty‐seventh Amendment The Twenty‐seventh Amendment has a long and unusual history. A constitutional requirement that any changes to congressional compensation may not take effect during the Congress that enacts them was included among the twelve amendments that Congress proposed to the states in 1789. Of those twelve, the ten amendments that constitute the Bill of Rights were ratified by 1791. The other two, including the compensation amendment, failed to win ratification in the required three‐quarters of the states.

However, in 1873 the Ohio legislature, in protest against a retroactive congressional pay raise, ratified the compensation amendment, which had no time limit on ratification. In 1978 the Wyoming legislature did the same. Political activists then successfully urged more states to ratify the amendment, beginning with Maine in 1983. Michigan's 1992 ratification of the Twenty‐seventh Amendment provided the necessary margin. The Archivist of the United States certified the ratification on 18 May 1992, and Congress confirmed that certification two days later.

Although there has been considerable controversy about whether it is valid for an amendment to be adopted over such a long period of time, no court has addressed this question, and it may be nonjusticiable under the holding of Coleman v. Miller (1939), which held that conflicts arising in the amendment process are political questions to be resolved by Congress. The Supreme Court has not yet ruled on any case involving the Twenty‐seventh Amendment, although a federal appeals court has held that automatic cost‐of‐living adjustments do not violate the amendment. It is possible that some similar future challenge may yet be taken up by the Court.

Bibliography

Richard B. Bernstein , The Sleeper Wakes: The History and Legacy of the Twenty‐Seventh Amendment, Fordham Law Review 61 (1992): 497–557.
Adrian Vermeule , The Constitutional Law of Official Compensation, Columbia Law Review 102 (2002): 501–538.

Matthew J. Moore