27th Amendment or Bust

One afternoon in March 1982, an undergraduate student at the University of Texas named Gregory Watson was poking through the stacks of the Austin Central Library, researching a term paper he was going to write on the Equal Rights Amendment. He happened upon a book published by the Government Printing Office that included a copy of the Constitution, as well as several amendments that had been passed by Congress but not yet ratified by the requisite three-fourths of the states.

One such amendment limiting Congress' ability to give itself a raise caught his attention. Over the following ten years, it would become Watson's obsession, his life, and ultimately—20 years ago this month—the 27th and most recent Amendment to the United States Constitution. While the story of its enactment is an encouraging testament to the individual citizen’s power to enact change, the amendment's legality remains a gray area for legal scholars and it sets a troubling precedent for other amendments to be admitted to the nation's charter. 

The text of the amendment—“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened”—is its least compelling feature. It had been written by Madison himself, and offered in 1789 as one of his original 12 amendments – ten of which later became the Bill of Rights.

Watson was enchanted. He immediately dropped the Equal Rights Amendment as his topic and turned to this other amendment —the Congressional Pay Amendment—and was convinced that it could and should be ratified.

“I can still recall standing there ... and feeling a strong impulse physically come over me that this 1789 congressional compensation amendment not only made imminent good sense but, also, that it was still technically pending before the state legislatures,” Watson wrote in an email.

The teaching assistant who graded his paper disagreed. She gave Watson a C.

Watson says the amendment took over his life for the next ten years. Besides his studies and his job as a staffer in the Texas State Capitol, he says he “would eat, drink, sleep, and breath [sic] the ratification of the amendment all seven days of the week.”

Armed only with an IBM Selectric typewriter and postage stamps, Watson—who describes himself as "mistrustful of politicians, regardless of their partisan affiliation”—began sending letters to members of Congress, Senators, and state legislators, looking for sponsors for the amendment and champions who would push it through statehouses. In a pre-Internet era, this was painstaking work, Watson said, but it paid off. He needed 30 states to ratify the amendment, and before long the effort gained momentum.

The uncontroversial nature of the amendment Congress’ unpopularity—nearly as bad as it is now—certainly didn’t hurt.

While the question of whether Congress should set its own pay was perhaps too abstract in Madison's time to gather steam, when Watson began his crusade the issue was live. In 1978 Congress gave itself a pay raise. Congress also included a special tax break for itself in a bill to aid victims of black lung disease in December 1981. And as Watson's campaign wore on, a never-ending series of scandals unfolded: overdrafts at the Congressional Credit Union, members not paying for meals in the Congressional cafeteria, and the House giving itself a 51 percent pay raise in again 1989.

On May 7, 1992, the Michigan Legislature became the 38th State to ratify the amendment—enough to declare it approved (it was discovered later that Kentucky had actually already ratified the amendment in 1792, so Alabama was actually the 38th state to ratify on May 5). Don Wilson, then acting as Archivist of the United States, was obligated under federal law to certify it, thereby making it "valid, to all intents and purposes, as a part of the Constitution of the United States."

***

Senate Majority Leader Robert Byrd (D-WV) felt otherwise. Summoning Wilson to the Senate appropriations committee room one morning, Byrd warned Wilson that there would be "ramifications" if he certified the amendment before Congress had decided that it was admissible.

“Byrd was very adamant about it,” Wilson said. “But all I could do is say that 38 states had passed the amendment. If I challenged that, I would be interpreting the Constitution, and I didn't think that was a role that was appropriate.”

Despite the apparent conflict of interest, there were substantial legal reasons for Congress to object to the amendment in general, and to Wilson's determination to certify it in particular. The Supreme Court had said in Dillon v. Gloss (1921) that there is an implicit statute of limitations in all legal transactions, and that Constitutional amendments should be no exception. In Coleman v. Miller (1939), the Court said that validity of proposed amendments was Congress's decision, not that of the courts.

So Byrd had cause to demand that Congress, not the Archivist, make the final call. He also had reason to be suspicious of Wilson's intention to certify the amendment without it— Wilson was appointed as part of a Republican administration, asserting his power to approve amendments over that of a Democratically-controlled Congress. But for their part, the first Bush administration didn't view the certification as a power grab but rather as a bureaucratic obligation, Wilson said. Congress had itself given the Archivist the authority to certify amendments in 1951.

“It was not a political issue, except on the Hill, and that was because they wanted to say whether or not it was appropriate,” Wilson said. “During my conversation with Byrd, I said, 'I'm going to certify this, and you can challenge it.'”

Ultimately, Byrd blinked. A few months after Wilson certified the amendment, both houses of Congress passed resolutions supporting its inclusion.

For Watson, however, the sense of victory was short-lived. A freshman Republican from Ohio named John Boehner had proclaimed the Amendment the “class project” of the 1990 freshmen. Watson still feels that Boehner hijacked his work.

“Boehner snatching undeserved credit definitely robbed me of savoring to the fullest the ultimate success of the amendment's ratification,” Watson remembers. “I will never forgive him for that.”

In response to a request for comment, Boehner said he is “proud to have played a part” in the amendment's passage, but that “there is no question that the critical role was played by American citizens who cared about the issue and took an active role in their government.”

After the amendment was certified, Watson continued to press state legislatures for ratification, ultimately having 45 of the 50 states adopt it. In July 2011, he was let go from his job as a staffer for state Representative Tryon Lewis. He now works at a Dillard's Department Store in Austin's Barton Creek Square Mall, a turn of events he calls “a bit of an American tragedy.” 

Legal scholars remain ambivalent about the amendment. Its precedent suggests Congress can pass an amendment with no ratification deadline, and then take its time picking off statehouses one by one—for hundreds of years if necessary—to make that amendment part of our nation's charter.

There are indeed some strange constitutional amendments that await ratification. The most analogous example is the other amendment Madison offered in 1789, which requires one member of Congress for every 50,000 citizens—an act that would give Congress 6,282 members. The Corwin Amendment—offered without deadline in 1861—would legalize slavery and prevent any future amendments from limiting the institution. There is a legend that an 1810 amendment forbidding American citizens from holding foreign titles of nobility was actually ratified in the early 19th century; its advocates argue that lawyers violate that amendment by calling themselves “esquire.” In fact, the amendment was not ratified, but poor communication between the state and federal governments led to some confusion.

Amending the constitution has so many off-ramps that the chances of those amendments being adopted is exceedingly low.

“A constitutional amendment is a statement of national political consensus that is transcendent of party division,” said Jamie Raskin, a constitutional law professor at American University and Democratic member of the Maryland Senate. “It is a statement that society as a whole is taking a permanent position on an issue that transcends the normal back and forth of party politics. We're just lacking that sort of transcendental political consensus.”

Indeed, the Constitutional amendments that have been offered in Congress in recent years – forbidding the desecration of the American flag, banning gay marriage, allowing prayer in schools–tend to be designed for their political edge rather than their lack of controversy, and tend to originate from the Right.

Watson says that he doesn't really mind having his amendment be the last one to be included in the Constitution, though he supports amendments that would establish “term limits and fiscal discipline.” But, he says, “because the partisan gridlock is so strong in today's politics at both the state and national levels, it may very well be a long, long time before the Constitution sees its 28th Amendment.”            

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