Congressional Compensation

Noting that initially fierce debates over the validity of the Twenty-Seventh Amendment have simmered down. Citing litigation interpreting the Amendment that rejected claims that automatic cost of living adjustments were “laws” within the meaning of the Amendment and therefore barred. Interpreting the Amendment’s text and history to guide future litigation and contending that “law” has the same technical meaning as it does in Article I’s bicameralism and presentment clause.

Summarizing the controversy surrounding the Twenty-Seventh Amendment, which derives from the fact that it was originally proposed in 1789. Discussing Dillon v. Gloss (1921), in which the Supreme Court noted in dicta that nothing in Article V suggests that an amendment, once proposed, can be ratified at any time thereafter. Discussing the views of various commentators on this case and the question of whether Congress or the Courts has the ability to determine whether ratification has occurred within a reasonable period of time.

Discussing the history of the Twenty-Seventh Amendment. Analyzing why the Amendment was not ratified in its time and looking to primary sources, including debates over the Amendment throughout history. Assessing whether the Amendment is valid in light of its delayed ratification. Arguing for time limits on proposed amendments.

Discussing the potentially problematic fact that the Twenty-Seventh Amendment took 200 years to ratify. Assessing whether Congress correctly concluded that the amendment-ratification process presents a “political question” within the exclusive power of Congress. Arguing for an approach to the amendment process that is more faithful to the text of Article V and the political theory of the Constitution.

Discussing the “tortured history” of the Twenty-Seventh Amendment, beginning with its initial proposal by James Madison in the First Congress. Providing a thorough account of debates over congressional compensation throughout American history. Explaining how the public anger toward Congress in the 1980s and 90s finally provided the political will to pass the Amendment.