Abstract
It took 203 years to adopt, with the final push spurred by public outrage over the insult that Rubbergate added to a series of injuries, but We The People have finally gotten around to amending the Constitution to give ourselves a check against congressional self-dealing in the form of middle-of-the-night, rush-out-of-town pay raises. The 27th Amendment was ratified by a 38th state (three-fourths of the states must approve any amendment) this month when Michigan approved language first proposed by James Madison in 1789: "No law varying the compensation for the services of Senators and Representatives shall take effect until an election of Representatives has intervened." Madison's theory, ratified by experience and overwhelming public opinion as well, was that the need for representatives to face the voters before any pay raise took effect would be a powerful deterrent against congressional aggrandizement. But when exactly in the last two centuries was that, professor? It is not at all "perfectly clear" that the Amendment ever died. Rather, it is plain that the 27th Amendment has become part of the Supreme Law of the Land. Nothing in the Constitution or in the terms of the proposed amendment limits the time period for its adoption by the states; Congress never rescinded the proposed amendment; and the States that voted for it (some, admittedly long ago) have never rescinded their ratifications. Our fundamental notions of the rule of law, and of the Constitution as an ongoing compact connecting our generation to that of the Framers, require that the 27th Amendment be recognized as valid. An amendment is valid "when" ratified; no time period is specified. Article V does not specify a ratification deadline, leaving it for the Congress (or constitutional convention) proposing the amendment to specify any such limitation in the "Mode of Ratification" either in the language of the proposed constitutional amendment itself or in the accompanying resolution submitting the proposed amendment to the states. Congress has done exactly this on several occasions. The 18th, 20th, 21st, and 22nd amendments each provided that the proposals would be "inoperative unless . . . ratified" by three-fourths of the states within seven years. More often, Congress has imposed no condition of contemporaneous ratification. The pay raise amendment proposal of 1789, like the other proposals that became part of the original Bill of Rights, specified no time limitation. The Constitution provides no grounds for inventing one where Congress has declined to impose one.