About Our Constitution, a Series
Article 33 – Article of Amendment XXVII
By David Robert Wood
May 1, 2012
Article of Amendment XXVII reads as follows:
Article of Amendment XXVII
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
This proposed Amendment, “Article the second,” was included in the first twelve proposed Amendments, which included “Article the first,” as yet un-ratified, and “Article the third” to “Article the twelfth.” These latter ten, as discussed in a previously article, were ratified as Articles of Amendment I to X, or the “Bill of Rights.”
These twelve proposed Amendments were approved in Congress in slightly more than six months after its beginning under the newly ratified Constitution. Most of them involved individual rights and liberties, a “Bill of Rights,” which were sought at the insistence and demand of many of the States.
During the 1787 Constitutional Convention, there were requests and demands to include individual rights and liberties, but this didn’t happen. The Convention had been long and trying, and most of the members were weary and eager to complete their work and return to their homes. The consensus was that the proposed Constitution was a good document, a great improvement over the Articles of Confederation and perpetual Union, and although not considered perfect, it was approved and submitted to the States for consideration. It was felt that any deficiencies, such as the lack of a “Bill of Rights,” should be addressed by subsequent amendment to it.
During the ratification of the Constitution, a number of the States continued to be vocal advocates for a “Bill of Rights.” In some of the State conventions, the proposed Constitution was ratified, but it was specifically recommended that a “Bill of Rights” be added. The Massachusetts convention ratified the Constitution on February 6, 1788 and they recommended that alterations be made to the Constitution, including nine specific provisions. Further, such convention enjoined its future Representatives in Congress “to exert all their influence & use all reasonable & legal methods to obtain a ratification” of such recommended provisions.
South Carolina’s ratification of the Constitution on May 23, 1788, also recommended modifications to the Constitution, which was followed by New Hampshire’s recommendation of twelve additional provisions in its ratification on June 21, 1788. On June 27, 1788, the day after its ratification of the Constitution, the Virginia convention recommended a “Declaration or Bill of Rights,” which included twenty provisions. On July 26, 1788, New York ratified the Constitution with barely a majority of thirty to twenty-seven, and they also included a list of prospective amendments to protect rights and liberties.
North Carolina was the most adamant proponent for the inclusion of a “Bill of Rights” and refused to ratify the Constitution until a “Bill of Rights” was proposed. On August 2, 1788, North Carolina “Resolved” in its convention that a “declaration of rights”…“ought to be laid before Congress”,…“previous to the ratification of the Constitution aforesaid on the part of the state of North Carolina,” which included twenty-six recommended “Declaration of Rights.” On November 21, 1789, following the proposal of the first twelve Amendments by Congress on September 25, 1789, North Carolina finally ratified the Constitution.
These first twelve proposed Amendments to Constitution were adopted by a simple Resolution, concurred to by both Houses of Congress, in the first session of the first Congress on September 25, 1789, when they passed the Senate, in amended form, by “Resolve” and without detailed voting information <AoAXXVII2>.
The process in proposing these first Amendments to the Constitution began on June 8, 1789. A motion was made and seconded in the House of Representatives that Congress should consider “certain specific amendments” to become part of the Constitution, which was then referred to the Committee of the Whole House. On July 21, 1789, the task for amending the Constitution was assigned to a committee comprised of one Representative from each State, eleven States having then ratified the Constitution. To be known as the “Committee of Eleven,” the members included John Vining from Delaware, James Madison from Virginia, Abraham Baldwin from Georgia, Roger Sherman from Connecticut, Aedanus Burke from South Carolina, Nicholas Gilman from New Hampshire, George Clymer from Pennsylvania, Egbert Benson from New York, Benjamin Goodhue from Massachusetts, Elias Boudinot from New Jersey, and George Gale from Maryland.
The Committee of Eleven made a report to the House of Representatives on July 28, 1789, which was considered by the Committee of the Whole House. This resulted in the passage of seventeen proposed amendments on August 21, 1789, with two thirds of the members present concurring. These House proposed amendments were then considered, modified and amended by the Senate on September 2, 3, 4, 7, 8 and 9, 1789. On September 21, 1789, the House of Representatives agreed to certain of the Senate’s amendments and changes, but not to others, and requested a joint conference, which was agreed to by the Senate on the same date.
The joint conference committee included, from the House of Representatives, James Madison of Virginia, Roger Sherman of Connecticut and John Vining of Delaware. From the Senate, the committee members included Oliver Ellsworth from Connecticut, Charles Carroll from Maryland and William Paterson from New Jersey. Such joint conference committee agreed to and reported out twelve recommended constitutional amendments. These twelve were agreed to by the House of Representatives on September 24, 1789, by a vote of 37 to 14 <AoAXXVII1>. This was followed by the Senate passage and proposal of such Amendments on September 25, 1789.
Congress also passed a Resolution, which was approved by the House of Representatives on September 24, 1789, and by the Senate on September 26, 1789, requesting the President of the United States transmit the proposed Amendments to the States for ratification consideration. On October 2, 1789, President George Washington transmitted these proposed Amendments to the eleven member States (“Member States”), and to Rhode Island and South Carolina, States not then having ratified the Constitution <AoAXXVII3>. Such letter read as follows:
United States October 2nd 1789
In pursuance of the enclosed resolution, I have the honor to transmit to your Excellency a copy of the amendments proposed to be added to the Constitution of the United States.
I have the honor to be
with this confederation
most obedient Servant,
Ratification of Article of Amendment XXVII occurred on May 7, 1992, when Michigan and New Jersey became the thirty-eighth and thirty-ninth States to ratify this Amendment, there then being fifty States in all.
Following is the detailed ratification by the thirty-nine States — Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; Delaware, January 28, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791; Ohio, May 6, 1873; Wyoming, March 6, 1978; Maine, April 27, 1983; Colorado, April 22, 1984; South Dakota, February 21, 1985; New Hampshire, March 7, 1985; Arizona, April 3, 1985; Tennessee, May 23, 1985; Oklahoma, July 10, 1985; New Mexico, February 14, 1986; Indiana, February 24, 1986; Utah, February 25, 1986; Arkansas, March 5, 1987; Montana, March 17, 1987; Connecticut, May 13, 1987; Wisconsin, July 15, 1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Louisiana, July 7, 1988; Iowa, February 9, 1989; Idaho, March 23, 1989; Nevada, April 26, 1989; Alaska, May 6, 1989; Oregon, May 19, 1989; Minnesota, May 22, 1989; Texas, May 25, 1989; Kansas, April 5, 1990; Florida, May 31, 1990; North Dakota, March 25, 1991; Alabama, May 5, 1992; Missouri, May 5, 1992; Michigan, May 7, 1992; and New Jersey, May 7, 1992.
Subsequent to Final Ratification, this Article of Amendment was ratified by two additional States — Illinois on May 12, 1992 and California on June 26, 1992. This Article of Amendment has not been ratified by Hawaii, Kentucky, Massachusetts, Mississippi, Nebraska, New York, Pennsylvania, Rhode Island and Washington.
Article of Amendment XXVII was proclaimed and certified as ratified by the Archivist of the United States, Don W. Wilson, on May 18, 1992, listing forty ratifying States, which included Illinois <AoAXXVII4>.
Taking over two hundred years to ratify, this long-forgotten proposed and un-ratified Amendment, also known as the “Madison Amendment,” was rediscovered in 1982 by University of Texas student, Gregory Watson. He aggressively pushed for its passage by the remaining States, which became popular because of its subject matter, restricting “compensation for the services of the Senators and Representatives.” At that time, the Federal Government was generally unpopular and national interest in this dusty, proposed Amendment was renewed because of its subject. State ratification recommenced with Maine in 1983. Thereafter, another thirty States steadily ratified this Amendment over the next nine years, culminating in Final Ratification on May 7, 1992.
During this later ratification period, many opinions were expressed about the continued viability of this two hundred year old proposed Amendment. Congress was urged to act and several members of Congress expressed their concerns about the circumstances of ratification. Some legal analysts had suggested, citing the 1921 Supreme Court case of Dillon v. Gloss, that due to the passage of time, this proposed Amendment had long since “died.” Alternatively, it was also suggested that State ratification actions, of themselves, should be contemporaneous with each other. Thus, the first seven State ratifications, all more than one hundred years before, should be considered as not being contemporaneous and therefore ineffective, necessitating re-ratification by these States.
Others believed that once an Amendment has been proposed, Congress no longer has an on-going role in the constitutional amendment process. As such, Congress may not evaluate the continued adequacy of State ratifications, whether recent or over a hundred years before.
Notwithstanding these views, Congress ultimately embraced the ratification of Article of Amendment XXVII, and there were accolades of praise as to the wisdom of the States in ratifying it. Given the subject matter of the Amendment, specifically restricting Congressional pay raises, few Representatives and Senators openly expressed doubts as to its validity, fearing that opposing it, on any grounds, would likely result in electorate repercussions.
Following the announcement of Final Ratification by the Archivist of the United States, the Senate adopted a Simple Resolution and a Concurrent Resolution on May 20, 1992, by a vote of 99 to 0, announcing that Article of Amendment XXVII “has become valid, to all intents and purposes, as a part of the Constitution of the United States.” On the same day, the House of Representatives also passed a Concurrent Resolution declaring that Article of Amendment XXVII had been ratified by a sufficient number of States. And, as with the Senate, such resolution was overwhelmingly approved by a vote of 414 to 3. Neither house of Congress subsequently acted upon the other’s Concurrent Resolution, but the affirmation was clear.
Impact of Article of Amendment XXVII on the Constitution and on Preceding Articles of Amendment
Article of Amendment XXVII is supplemental, or additive, to the original language in the Constitution and in preceding Articles of Amendment. This Artcle of Amendment is the last Article of Amendment ratified as of the date of this publication, and is the last article in the fourth section of this series, that being the “Ratified Amendments to the U.S. Constitution.”
The next section is the fifth and final section in the series and is about the “Forgotten, Un-ratified Amendments Proposed to the U.S. Constitution.” This section will include discussions on the six, un-ratified Amendments proposed by Congress. Of these six, two have expired as a result of a failure to be ratified before the expiration of the prescribed time limit and four may still be ratified today. The detailed discussions will be similar to the ratified Amendments, which includes data and information on these six, proposed Amendments to the Constitution.