Wednesday, May 17, 2017


May 20 marks 25 years since the 27th Amendment to the Constitution was declared ratified — more than 200 years after it was first proposed to the states.

Recall that James Madison took a slew of proposals after the Constitution was approved and boiled them down to nine, which he proposed to his House of Representatives colleagues on June 8, 1789. But the House had a different mind, approving 17, and sent them to the Senate, which made even more changes. Finally, a conference committee got both bodies to accept 12, which were sent to the states on Sept. 25, 1789. Ten were approved and became the Bill of Rights.

The two that weren’t ratified were rightful losers. The first dealt with apportionment of members of the House of Representatives and was downright complicated, without concern for a growing nation. To wit: “After the first enumeration required by the first article of the Constitution, there shall by one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Had this amendment been adopted, about 5,000 members would now sit in the House. And the Constitution’s Article 1, Section 2, Clause 3 already provided for a formula that satisfactorily dealt with the matter.

The second was equally shortsighted because it was concerned with making certain that members of Congress couldn’t raise their salaries until an “election of Representatives shall have intervened.” Only six states (Maryland, North Carolina, South Carolina, Vermont, Delaware and Virginia) approved. Ten states were needed at the time, and, unlike some other subsequently proposed additions to the Constitution, no time limit was proposed for ratification before the amendment expired.

The idea was rightfully rejected in the early years of the nation because citizens recognized that the Constitution dealt with important matters of state and not with issues, if ingrained in the document, that would minimize its historic imprint. Salaries of congressmen simply didn’t rise to that level of significance. And if you need further assurance of that reality, take a look at the substance of the first 10 amendments, unmarred by paltry pecuniary matters.

But then in 1982, a student at the University of Texas, Gregory Watson, did research on the matter and began a crusade to get the remaining number of states to give a thumbs-up to the ancient idea. And, not surprisingly, given the temper of any time period in which reining in Congress was without significant opposition (what member of Congress, for instance, could take issue without fear of endangering his re-election?), Michigan became the state in early May 1992 to effect ratification.

Still, because the amendment had seemingly been discarded for so long, it took legal opinion from the Archivist of the United States to ensure that the ratification was valid. And that also necessitated each house of Congress validating the procedure on May 20, 1992, with a 99 to 0 vote in the Senate, 414 to 3 in the House.

What’s wrong with this history is that it flies in the face of what the Founding Fathers had in mind in terms of constitutional amendments. Article 5 provides that Congress propose amendments “whenever two-thirds of both houses deem it necessary.” Amendments are to be viewed in the context of the imperative times in which Americans lived or reasonably foresaw, and neither in 1789, 1992 nor today are congressional pay raises at the front-and-center of national issues. For example. it’s certainly reasonable to propose an amendment that would change the eligibility requirements for members of Congress, as well as to impose term limits (as has been done for the presidency), but congressional pay matters in the historic document are scarcely “necessary.”

In my university teaching years, not an inconsiderable part of my American history courses was devoted to the Constitution and the amendment process. The feature that amendments submitted to the states by Congress didn’t require the approbation of the president was often raised by students, the more astute recognizing that the chief executive’s approval wasn’t necessary because of the two-thirds vote (thus veto-proof) requirement in both houses.

And the more astute appreciated my proposed Amendment 28: “The preceding articles of the Constitution,” it read, “shall be unamendable.”

• Thomas V. DiBacco is professor emeritus at American University.

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