POLITICAL EDUCATION, CONSERVATIVE ANALYSIS
POLITICS, SOCIETY, & THE SOVEREIGN STATE
Website of Dr. Almon Leroy Way, Jr.
AMERICAN CONSTITUTIONAL LAW
CONSTITUTION OF THE UNITED STATES OF AMERICA
WITH COMMENTARY & ANNOTATIONS
AMENDMENT XXVII:
CONGRESSIONAL SALARY INCREASES & DECREASES:
CONGRESSIONAL PAY LIMITATION
Amendment XVII. No law, varying the compensation for the services of the Senators and
Representatives, shall take effect, until an election of Representatives
shall have intervened.
REGULATING CONGRESSIONAL PAY
Referred to the state legislatures at the same time as those
proposals that eventually became the Bill of Rights, the congressional
pay amendment had long been assumed to be dead.\1\ This provision had
its genesis, as did several others of the first amendments, in the
petitions of the States ratifying the Constitution.\2\ It, however, was
ratified by only six States (out of the eleven needed), and it was
rejected by five States. Aside from the idiosyncratic action of the Ohio
legislature in 1873, which ratified the proposal in protest of a
controversial pay increase adopted by Congress, the pay limitation
provision lay dormant until the 1980s. Then, an aide to a Texas
legislator discovered the proposal and began a crusade that culminated
some ten years later in its proclaimed ratification.\3\
NOTES:
\1\Indeed, in Dillon v. Gloss, 256 U.S. 368, 375 (1921), the
Court, albeit in dictum, observed that, unless the inference was drawn
that ratification must occur within some reasonable time of proposal,
``four amendments proposed long ago--two in 1789, one in 1810 and one in
1861--are still pending and in a situation where their ratification in
some of the States many years since by representatives of generations
now largely forgotten may be effectively supplemented in enough more
States to make three-fourths by representatives of the present or some
future generation. To that view few would be able to subscribe, and in
our opinion it is quite untenable.'' (Emphasis supplied).
\2\A comprehensive, scholarly treatment of the background,
development, failure, and subsequent success of this amendment is
Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-
Seventh Amendment, 61 Ford. L. Rev. 497 (1992). A briefer account is The
Congressional Pay Amendment, 16 Ops. of the Office of Legal Counsel,
U.S. Dept. of Justice 102, App. at 127-136 (1992) (prelim. pr.).
\3\The ratification issues are considered supra in the
discussion of Article V.
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Now that the provision is apparently a part of the
Constitution,\4\ it will likely play a minor role. What it commands was
already statutorily prescribed, and, at most, it may have implications
for automatic cost-of-living increases in pay for Members of
Congress.\5\
NOTES:
\4\In the only case to date brought under the Amendment, the
parties did not raise the question of the validity of its ratification;
the court refused to consider the issue raised by an amicus. Boehner v.
Anderson, 809 F.Supp. 138, 139 (D.D.C. 1992). It is not at all clear the
issue is justiciable.
\5\See supra, p.126.
The foregoing commentary and annotations were originally published in a document sponsored by the United States Senate on the
United States Government Printing Office website.
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