[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Twenty-Seventh Amendment - Congressional Pay Limitation ]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 1997]]

                        TWENTY-SEVENTH 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.


        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\

        \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.

        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 

        \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.