Congressional Pay Amendment

Congressional Pay Amendment
T h e C o n g ressio n al Pay A m endm ent, w hich w as originally proposed by C ongress to the States
for ratification in 1789, and having been ratified by three-fourths o f the S tates, h as b een
ratified p u rsu an t to A rticle V and is accordingly now part o f the C onstitution.
U n d er 1 U .S .C . § 106b, the A rchivist was, upon receipt o f form al instrum ents o f ratification
from the req u isite num ber o f States, required to publish the C ongressional Pay A m endm ent
along w ith his certificate specifying that the A m endm ent has becom e valid, to all in ten ts and
purposes, a s part o f the C onstitution.
May 13, 1992
M em orandum O p in io n f o r t h e C o u n sel to the P r e s id e n t
You have asked for a summary of our views, on an expedited basis, on
whether the Congressional Pay Amendment has been duly adopted in accor­
dance with the formal requirements of Article V of the Constitution. The
General Counsel of the National Archives and Records Administration has
informed us that the Archivist of the United States has received word that a
total of thirty-nine States have adopted the Amendment, one more than the
three-fourths required under Article V. The Archivist expects to have re­
ceived formal instruments of ratification from all the necessary States shortly
and informs us that no state has purported to rescind its ratification.
Article V of the Constitution provides:
The Congress, whenever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this Constitution . . .
which . . . shall be valid to all Intents and Purposes, as Part of
this Constitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be
proposed by the Congress . . . .
Congress proposed the Pay Amendment to the States in 1789, by a resolu­
tion concurred in by two-thirds of both Houses. 1 Stat. 97 (1789). That
resolution further provided that the Amendment would be valid as part of
85
the Constitution “when ratified by three fourths of the [State] legislatures.”
Id. As the Amendment was proposed by the requisite majorities of both
Houses of Congress, and has been ratified by the legislatures of three-fourths
of the States, it has met all of the requirements for adoption set forth in
Article V.
Section 106b of title 1, United States Code, provides:
Whenever official notice is received at the National Archives
and Records Administration that any amendment proposed to
the Constitution of the United States has been adopted, ac­
cording to the provisions of the Constitution, the Archivist of
the United States shall forthwith cause the amendment to be
published, with his certificate, specifying the States by which
the same may have been adopted, and that the same has be­
come valid, to all intents and purposes, as a part of the
Constitution of the United States.
Accordingly, upon the receipt of formal instruments of ratification of the
Pay Amendment from three-fourths of the States, the Archivist must forth­
with cause the Amendment to be published with his certificate specifying
the States by which it has been adopted, and that the Amendment has be­
come valid, to all intents and purposes, as a part of the Constitution of the
United States. The effective date of the Amendment is the date on which it
was ratified by the thirty-eighth State to do so.
TIMOTHY E. FLANIGAN
Acting Assistant Attorney General
Office o f Legal Counsel
86
November 2, 1992
M em o ran d u m O p in io n f o r t h e C o u n sel to th e P r e s id e n t
You have asked us to memorialize the detailed analysis underlying the
advice rendered to you earlier this year in connection with the ratification of
the Congressional Pay Amendment, originally proposed by Congress to the
States for ratification in 1789. You also asked us to address the question
whether the Archivist of the United States, upon receipt of formal instru­
ments of ratification from the requisite number of states, was required to
certify that the Congressional Pay Amendment has become part of the Con­
stitution.1
For the reasons set forth below, we conclude that the Congressional Pay
Amendment has been ratified pursuant to Article V and is accordingly now
part of the Constitution, and that the Archivist was required to issue his
certification to that effect in accordance with 1 U.S.C. § 106b.
I.
A.
The procedures for amending the Constitution are set forth in Article V:
The Congress, whenever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this Constitution,
or, on the Application of the Legislatures of two thirds of the
several States, shall call a Convention for proposing Amend­
ments, which, in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or by Con­
ventions in three fourths thereof, as the one or the other Mode
of Ratification may be proposed by the Congress.
' We have relied upon the Archivist of the United States for his official tally of the ratifying States. In
addition to the forty states listed in the Archivist’s certification, see 57 Fed. Reg. 21,187, 21,188 (1992),
we understand that California ratified the amendment on June 26, 1992, see 138 Cong. Rec. E2237
(daily ed. July 24, 1992). We set forth in detail the history of the Congressional Pay Am endm ent’s
ratification by the States in the accompanying Appendix.
87
The Constitution of the United States: Analysis and Interpretation, S. Doc.
No. 16, 99th Cong., 1st Sess. 18 (Johnny H. Killion ed., 1987) (“Constitution
Annotated'). Thus, Congress or a convention proposes an amendment, Con­
gress proposes a mode of ratification, and the amendment becomes part of
the Constitution when ratified by three fourths of the States. The ratification
of the Congressional Pay Amendment followed this process. Congress pro­
posed the amendment and directed it to state legislatures for ratification. Act
of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789) (Amendments to the U.S. Consti­
tution). Three fourths of the several States have now ratified it. 57 Fed. Reg.
21,187, 21,188 (1992); see also Appendix.2 By a straightforward reading of
Article V, the amendment is now “valid to all Intents and Purposes, as Part of
th[e] Constitution.”
That the ratification of the Congressional Pay Amendment has stretched
across more than 200 years is not relevant under the straightforward lan­
guage of Article V. Article V contains no time limits for ratification. It
provides simply that amendments “shall be valid to all Intents and Purposes
. . . when ratified.” Thus the plain language of Article V contains no time
limit on the ratification process.
Nor are we aware of any other basis in law for adding such time limits to
the Constitutional amendment process, other than pursuant to the process
itself. Indeed, an examination of the text and structure of Article V suggests
that the absence of a time limit is not an accident. The procedure prescribed
in Article V necessarily implies that some period of time must pass between
the proposal of an amendment and its final ratification by the requisite num­
ber of States.3 This suggests that if a time limit on the process were intended,
the time limit would be stated in terms. Moreover, Article V does deal with
a question concerning time limits, and does so quite precisely: no amend­
ment affecting “the first and fourth Clauses in the Ninth Section of the first
Article” was permitted to be made “prior to the Year One thousand eight
hundred and eight.” If the Framers had contemplated some terminus of the
period for ratification of amendments generally, they would have so stated.
The rest of the Constitution strengthens the presumption that when time
periods are part of a constitutional rule, they are specified. For example,
representatives are elected every second year, U.S. Const, art. I, § 2, and a
census must be taken within every ten year period following the first census,
2The A rchivist also informs us that no State has transmitted to the federal government a document
p urp o rtin g to rescind a prior ratification. In the early 1800's, the Vermont legislature, which had
previously ratified the amendment, passed a resolution opposing a later, nearly identical proposal by the
K entucky legislature. S e e 1817 Vt. Law s 100-01. There is no evidence, however, that Vermont at­
tem pted to rescind its previous ratification. Several states did expressly reject the Congressional Pay
Am endm ent when it was first proposed, though only New Hampshire appears to have formally notified
the federal governm ent o f that fact. S e e 1 D ocum entary H isto ry o f the F irst F ed era l C ongress o f the
U n ite d S ta te s o f A m e r ic a 348 (Linda G rand DePauw, et. al., eds. 1972) (“ 1 F irst C o n g ress")’. Appendix
at pp. A-3 to A-4.
3 S ee Joseph Story, C om m entaries on th e C onstitution o f the U nited Stales § 959, at 681 (1833) (re­
printed 1987) (formal requirements of A rticle V indicate that “[t]ime is thus allowed, and ample time,
for deliberation, both in proposing and ratifying amendments”) ( “C om m entaries").
88
which was required to be taken within three years of the first meeting of
Congress. Id. Neither House of Congress may adjourn for more than three
days without the consent of the other, U.S. Const, art. I, § 5, and the Presi­
dent has ten days (Sundays excepted) within which to sign or veto a bill that
has been presented to him. U.S. Const, art. I, § 7. The Twentieth Amend­
ment refers to certain specific dates, January 3rd and 20th. Again, if the
Framers had intended there to be a time limit for the ratification process, we
would expect that they would have so provided in Article V.4
The records of the drafting and ratification of the Constitution contain no
hint that Article V was intended to contain any implicit time limit. See, e.g.,
Dillon v. Gloss, 256 U.S. 368, 371 (1921). The issue appears not to have
arisen at the time of the framing, but has since been debated in Congress
from time to time. Throughout most of those debates, the dominant view
has been that the Constitution permits the ratification process to proceed for
an unlimited period of time. The first discussion we have found of the
question whether a proposed constitutional amendment remains viable in­
definitely came in 1869, when Senator Buckalew introduced a measure to
regulate the time and manner in which state legislatures would consider the
Fifteenth Amendment. In support of his proposal, he stated that because of
the confusion created by States that either ratify after rejecting, or reject
after ratifying, “we are in this condition that you cannot have a constitu­
tional amendment rejected finally at all in the United States; rejections amount
to nothing, because ratifications at some future time, ten, twenty, fifty, or
one hundred years hence, may give it validity.” Cong. Globe, 40th Cong., 3d
Sess. 913 (1869). Senator Bayard, opposing a related proposal, stated his
belief that “as long as the proposed amendment has neither been adopted by
three fourths of the States nor rejected by more than one fourth, it stands
open for . . . action.” Id. at 1312.
The Senate and House debates regarding proposal of the Eighteenth
Amendment in 1917 also indicate a common belief that Article V contains
no time limits. For example, in his remarks on the need for limiting time
for state ratification, Senator Ashurst explained that two of the first twelve
amendments proposed by Congress “are still pending . . . and have been for
128 years.” 55 Cong. Rec. 5556 (1917). Senator Borah expressed the view
that “[t]he fundamental law of the land does say very plainly, that it places
no limitation upon the time when or within which [an amendment] must be
ratified. It says ‘when ratified’, and fixes no limit.” Id. at 5649. Senator
4 The Constitution also contains provisions that refer to time but not to a specific period or date. The
Twelfth Amendment provides that when the House of Representatives must choose the President, it is to
ballot “im m ediately” (presumably to prevent intrigue and cabal); the Vice President shall “im m edi­
ately” assume the office o f President under certain circumstances, U.S. Const, amend. XXV, § 4; the
first Senate was “immediately” to divide itself into three classes for purposes of determining when
terms o f office expired, U.S. Const, art. I, § 3, cl. 2; the Sixth Amendment requires that accused persons
receive a "speedy” trial. The Constitution also requires that certain duties be performed “ from tim e to
tim e.” S e e U.S. Const, art. I, § 5, cl. 3 (publication of journal o f Congress); art. I, § 9, cl. 7 (publication
of statement of accounts); art. II, § 3 (President’s state of the union message). The comm on theme o f all
these provisions is that when time is part of a constitutional rule, the document so provides.
89
Cummins offered a separate amendment to Article V, stating that “I am in
favor of supplying what is manifestly a defect in our Constitution and pro­
viding some limit of time . . . ” Id. at 5652. Senator Overman later stated
that “as the Constitution is now, . . . an amendment . . . can be submitted for
a thousand years and be in force whenever ratified.” 56 Cong. Rec. 10,098
(1918). In the House, Representative Reavis objected to any time limit in
the Constitution. “The amendment is submitted until enough legislatures
have passed upon it to indicate whether or not it will be approved by three-
fourths of them.” 56 Cong. Rec. 444 (1917). Representative Steel replied
that without a time limit, “when a proposed constitutional amendment goes
out to the States it rests there for agitation for all time without any limita­
tion whatever.” Id. at 445.
Thus, although there was much disagreement on the issue — later ad­
dressed in Dillon v. Gloss — whether Congress could impose time limits for
state ratification of a proposed constitutional amendment in the absence of a
separate amendment to Article V, there was little doubt as to the rule estab­
lished by the Constitution itself: the proposed amendment remained viable,
at least until rejected by more than one-fourth of the States.5
Thus, the text and history o f Article V make plain that any argument that
there is a time limit on the ratification process must be based on some
ground other than text and history.
B.
1.
Two decisions of the Supreme Court, Dillon, and Coleman v. Miller, 307
U.S. 433 (1939), have been cited for the propositioft that Article V requires
that the ratification of constitutional amendments takes place within a “rea­
sonable” time after proposal.6 That doctrine is not within the holding of
those cases, however, and we believe that any dicta supporting the doctrine
are unsound.
In upholding Congress’s power to limit to seven years the time for ratifi­
cation of the Eighteenth Amendment, the Supreme Court in Dillon stated
“that the fair inference or implication from Article V is that the ratification
[of an amendment] must be within some reasonable time after the proposal.”
256 U.S. at 375. If this reasoning is controlling and Article V does contain
3 It is especially telling that so many of those who thought that the Constitution imposed no tim e limit
on the am endm ent process thought this feature to be a defect in the document; had they thought the
question a close one, or if any textual argum ent had been available, they might have resolved it in favor
o f what they took to be the preferable outcom e.
6 See, e .g .. E q u a l R ig h ts A m endm ent E x te n sio n : H earings on S. J. Res. 134 Before the S ubcom m . on the
C o n stitu tio n o f the S e n a te C om m , on the J u d ic ia ry , 95th Cong., 2d Sess. 117 (1978) (“Senate Hearings”)
(testimony of Prof. Thomas I. Emerson, Yale University); id. at 144 (testimony of Prof. Jules B. Gerald,
Washington University); id. at 266 (statement of Prof. Ruth B. Ginsburg, Columbia University).
90
an implicit requirement that proposal and ratification be reasonably contempora­
neous, the Congressional Pay Amendment almost certainly would be invalid.7
Although recognizing that Article V “says nothing about the time within
which ratification may be had,” id. at 371, the Court in Dillon identified
three grounds for concluding that Article V “strongly suggests” that a pro­
posed amendment may not remain “open to ratification for all time” and that
ratification in some States may not be “separated frorri that in others by
many years and yet be effective.” Id. at 374. The Court stated:
First, proposal and ratification are not treated as unrelated
acts but as succeeding steps in a single endeavor, the natural
inference being that they are not to be widely separated in
time. Secondly, it is only when there is deemed to be a neces­
sity therefor that amendments are to be proposed, the reasonable
implication being that when proposed they are to be consid­
ered and disposed of presently. Thirdly, as ratification is but
the expression of the approbation of the people and is to be
effective when had in three-fourths of the States, there is a fair
implication that it must be sufficiently contemporaneous in that
number of States to reflect the will of the people in all sections
at relatively the same period, which of course ratification scat­
tered through a long series of years would not do.
Id. at 374-75 (emphases added).8
7 Indeed, the Court in D illon suggested that the period for ratification of the Congressional Pay Amend­
ment, along with that of three other long-dormant proposed amendments, had lapsed:
That [construing Article V to require contemporaneous ratification] is the better conclusion
becomes even more manifest when what is comprehended in the other view is considered;
for, according to it, 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 o u r o p in io n it
is q u ite untenable.
Id. (emphasis added). S ee a lso Memorandum from David C. Huckabee, Analyst, and Thomas M. Durbin,
Legislative Attorney, Congressional Research Service, Library of Congress, R e: The P ro p o sed C o n g res­
sio n a l P ay C o n stitu tio n a l A m en d m en t: Issues P ertaining to R a tifica tion, at 2-3 (Aug. 12, 1991) (“CRS
Memorandum” ).
s In support of the notion of contemporaneous consensus, the Court quoted with approval a passage
from John A. Jameson, A Treatise on C onstitu tio n a l C onventions (Da Capo Press 1972) (4th ed. 1887),
in which Jameson wrote:
The better opinion would seem to be that an alteration of the Constitution proposed to-day
has relation to the sentiment and the felt needs o f to-day, and that, if not ratified early while
that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not
again to be voted upon, unless a second time proposed by Congress.
Id. § 585, at 634, q u o te d in p a rt in 256 U.S. at 375.
Contrary to the conclusion in D illo n , however, Jameson in his treatise had not suggested that his
"opinion” on the need for contem poraneous ratification was based on any requirem ent detectable in
the text o f Article V. Rather, he believed that securing this policy goal would require the adoption o f a
“constitutional statute of lim itation" for proposed amendments. Jameson specifically referred to the
Continued
91
In Coleman v. Miller, the Court was presented with a claim by members
of the Kansas Legislature that the Child Labor Amendment, proposed by
Congress thirteen years before, “had lost its vitality through lapse of time.”
307 U.S. at 451. The Court refused to consider the claim. Id. at 452-56
(opinion of Hughes, C.J., joined by Stone and Reed, JJ.); id. at 456-60
(Black, 1., joined by Roberts, Frankfurter and Douglas, JJ., concurring). In
his “opinion for the Court” in Coleman, Chief Justice Hughes observed that
although the three considerations outlined in Dillon represented “cogent rea­
sons” for concluding in the earlier case that Congress had the power to fix a
reasonable time limit for ratification, Dillon's discussion of these consider­
ations was merely a dictum. Id. at 452-53. Nevertheless, in determining
that the issue was “political,” Chief Justice Hughes in dicta adhered to the
premise of Dillon that Article V may be read as implicitly limiting the time for
ratification. See id. at 453-54. See also CRS Memorandum at 3; Staff of House
Comm, on the Judiciary, 85th Cong., 1st Sess.,' Problems Relating to a Federal
Constitutional Convention 44-45 (Comm. Print 1957) (by Cyril F. Brickfield).9
2.
Dillon is not authoritative on the issue whether Article V requires con­
temporaneous ratification. As Chief Justice Hughes pointed out in Coleman,
307 U.S. at 452-53, the “reasonable time” discussion in Dillon was dictum
because the issue before the Court was Congress’s authority to limit the
period for ratification, not a State’s authority to ratify a long-dormant pro­
posed amendment. See 1 Westel W. Willoughby, The Constitutional Law of
the United States 596 n.18 (2d ed. 1929) (“Willoughby”) (“[T]he declaration
of the court [in Dillon] as to the lapsing of proposed amendments which do
' ( ....continued)
various proposed am endm ents “floating about" in 1887, including the Congressional Pay Amendment,
w hich had shortly before been ratified by Ohio, and he acknowledged that “there is in force in regard to
them no recognized statute o f limitation.” Jameson, su p ra , § 586, at 635-36. A fter discussing the
hypothetical “confusion or conflict" that would result from such open-ended proposals, Jameson con­
cluded w ith a plea for amending the amendm ent process:
We discuss this question here m erely to emphasize the dangers involved in the Constitution
a s it sta n d s, and to show the necessity of legislation to make certain those points upon which
doubts may arise in the employment of the constitutional process for amending the funda­
m ental law o f the nation. A constitutional statute o f limitation, prescribing the time within
which proposed amendments shall be adopted or be treated as waived, o u g h t by a ll m ea n s to
b e p a sse d .
Id. at 635-36 (em phases added). See a lso Herman V. Ames, The P roposed A m en d m en ts to the C on stitu ­
tio n o f th e U n ited S ta te s D u rin g the F irst C en tu ry o f Its H isto ry, H.R. Doc. No. 3 5 3 ,54th Cong., 2d Sess.,
pt. 2, at 291-92 & n .l (1897).
’ C hief Justice Hughes wrote that “the question of a reasonable time in many cases would involve . . . an
appraisal o f a great variety o f relevant conditions, political, social and economic.” 307 U.S. at 453. The
four concurring Justices would have dism issed the case for lack of standing, see id. at 460-70 (opinion of
Frankfurter, J.), but concurred in the C hief Justice’s conclusion on the broader ground that “Congress has
sole and com plete control over the amending process, subject to no judicial review.” Id. at 459 (Black, J.,
concurring). Justices Butler and McReynolds in dissent found the issue justiciable and concluded that
under D illo n “more than a reasonable tim e had elapsed” for ratification of the Child Labor Amendment.
Id. at 473 (Butler. J. dissenting). We discuss C olem an’s political question holding in Part II, infra.
92
not receive ratification by the States within a reasonable period of time was
obiter, inasmuch as this question was not before the court in the instant
case.”); see also Brief for the United States Amicus Curiae at 25, Coleman v.
Miller, 307 U.S. 433 (1939) (No. 38-7) (“It was unnecessary in [Dillon] to
consider whether a proposed amendment would expire with the passage of
time in the absence of [a limitation] provision . . . ,”).10
Nor is Coleman authoritative as to contemporaneity. The Coleman Court’s
discussion of Dillon's “reasonable time” inference was simply not part of its
holding. Although Chief Justice Hughes’s opinion for three members of the
Court did approve of the “cogent reasons” for requiring contemporaneity
outlined in Dillon, see 307 U.S. at 452-53, the four remaining Justices com­
prising the seven-vote majority on the dispositive “political question” issue
specifically repudiated Dillon. The four concurring Justices called for “dis­
approval of the conclusion arrived at in Dillon v. Gloss, that the Constitution
impliedly require[d] that a properly submitted amendment must die unless
ratified within a ‘reasonable time.’” Id. at 458 (Black, J., concurring) (foot­
note omitted).11 Moreover, Chief Justice Hughes’s conclusion does not
logically imply that Dillon was correct. Having declined to address the
content of an implicit time limit, it leaves open for Congress the conclusion
that there is no time limit at all.
3.
On its merits, the reasoning of Dillon is unpersuasive in both its spe­
cific arguments and in its broader methodology. The Dillon Court’s first
10 Indeed, some have argued that the entire opinion o f the Court in D illon was a dictum and must be
considered “dubious” authority at best. S ee Note, The Process o f C o n stitutional A m e n d m e n t, 79 Colum.
L. Rev. 106, 126 n.75 (1979); Ernst Freund, L eg isla tive P roblem s a n d S o lutions, 7 A.B.A. J. 656, 656-
57 (1921). The challenge to the Eighteenth Amendment in D illo n was baseless because the seven-year
limitation at issue was part of the text of the amendment and was therefore itself ratified by the States;
the petitioner did not claim that Congress lacked authority to include such a limitation in the am end­
ment itself. Note, 79 Colum. L. Rev. at 126 n.75. S ee Brief for Appellee at 5, D illon v. G lo ss, 256 U.S.
368 (1921) (No. 20-251) (“The amendment having been ratified by the requisite num ber of States
within the time limitation provided in section three, it is unimportant whether that section is valid or
invalid.”). “ [T]he Suprem e Court, apparently mistaking the actual facts o f the case submitted to it,
stated and decided the case as though the time limit for ratification had been contained . . . in the Joint
Resolution o f Congress . . . . ” Willoughby, at 596-97.
"W e do not believe that Chief Justice Hughes's opinion must be treated as a holding o f the Court
because it rested on a “narrower ground” than Justice Black’s. Ordinarily, where an opinion for the
Court is fragmented, as in C olem an, the opinion of the Justices concurring in the judgm ent on the
narrowest grounds is regarded as the Court's holding. S ee M a rks v. U nited S ta tes, 430 U.S. 188, 193
(1977); G regg v. G eorgia, 428 U.S. 153, 169 n. 15 (1976) (opinion o f Stewart, Powell and Stevens, JJ.);
K ing v. P alm er, 950 F.2d 771, 778 (D.C. Cir. 1991) (Silberman, J., concurring), cert, d e n ie d , 550 U.S.
1229 (1992). However, “the narrowest opinion must represent a common denominator o f the C ourt’s
reasoning; it must embody a position implicitly approved by at least five Justices who support the
judgm ent.” K ing, 950 F.2d at 781. The “reasonable time” rule thus cannot be considered a holding o f
C olem an because it was specifically rejected by four/concurring Justices. C olem an “is not a case in
which the concurrence [here the three-justice H ughesfaction] posits a narrow test to which the plurality
must necessarily agree as a logical consequence of^its own, broader position.” Id. at 782. “In other
words, it is not a case in which there is an implicit majority o f the court" on the issue whether Article V
requires reasonably contemporaneous ratification. Id.
93
consideration was that proposal and ratification are steps in a single process
and hence should not be widely separate in time. This argument simply
assumes its conclusion — that the process is to be short rather than lengthy.
Second, Dillon argued that because amendments are to be proposed only
when needed, the implication is that they should be dealt with promptly.
But necessity is not the same as emergency. Thus, Story has written:
The guards [in Article V] against the too hasty exercise of the
[amendment] power, under temporary discontents or excite­
ments, are apparently sufficient. Two thirds of congress, or of
the legislatures of the states, must concur in proposing, or
requiring amendments to be proposed; and three fourths of
the states must ratify them. Time is thus allowed, and ample
time, for deliberation, both in proposing and ratifying amend­
ments. They cannot be carried by surprise, or intrigue, or
artifice. Indeed, years may elapse before a deliberate judg­
ment may be passed upon them, unless some pressing
emergency calls for instant action. . . .
. . . The mode, both of originating and ratifying amendments
. . . must necessarily be attended with such obstacles and de­
lays, as must prove a sufficient bar against light or frequent
innovations.
Commentaries, §§ 959-960, at 681-82. The States that have ratified the
Congressional Pay Amendment only recently evidently consider it to be just
as necessary today as the first Congress presumably thought it was in 1789.
Finally, Dillon suggests that Article V is designed to seek consensus, and
that consensus must be contemporaneous. Again, even assuming that it is
proper to interpolate terms into a constitutional provision in order to serve
its purported end — a question we address below — this reasoning is faulty.
Consensus does not demand contemporaneity. The sort of lasting consensus
that is particularly suitable for constitutional amendments may just as well
be served by a process that allows for extended deliberation in the various
states. There have been occasions when it has taken decades to build the
consensus within Congress needed for a two-thirds vote on a proposed amend­
ment.12 In the absence of a time limit in the original amendment proposal, it
11 S ee, e .g .. Senate Hearings, at 134-35 (statement o f Professor Thomas I. Emerson) (“History has dem ­
onstrated that a long period of time is necessary for the nation to make up its mind with respect to
fundam ental changes . . . . Thus the W om en’s Suffrage Amendment was under consideration for nearly
three quarters o f a century.” ).
94
would appear to be equally true that it may legitimately take many decades
to build the three-fourths consensus required for the states’ approbation.13
More fundamentally, Dillon rests on a faulty approach to the interpreta­
tion of the Constitution, and in particular those provisions that determine the
structure of government. The amendment procedure, in order to function
effectively, must provide a clear rule that is capable of mechanical applica­
tion, without any need to inquire into the timeliness or substantive validity
of the consensus achieved by means of the ratification process. Accord­
ingly, any interpretation that would introduce confusion must be disfavored.
As the Supreme Court has explained, the Constitution is designed to provide
“[e]xplicit and unambiguous provisions” to govern the structure of govern­
ment. INS v. Chadha, 462 U.S. 919, 945 (1983) (construing the presentment
and bicameralism provisions of Article I). The very functioning of the govern­
ment would be clouded if Article V, which governs the fundamental process of
constitutional change, consisted of “open-ended” principles without fixed appli­
cations. The alternative to procedural formalism is uncertainty and litigation.14
As explained above, the terms of Article V provide a clear rule: any
amendment once proposed “shall be valid to all Intents and Purposes, as part
of this Constitution, when ratified by the Legislatures of three-fourths of the
several States.” The reading according to which Article V contains an im­
plicit time limit, by contrast, introduces so much uncertainty as to make the
ratification process unworkable. The two stages of the amendment process
are proposal and ratification. The latter is done by states acting through
legislatures or conventions. In order to be able to carry out its function in
the ratification process, any state that is contemplating ratification must know
whether an amendment is in fact pending before it. That is not a matter of
degree; the proposed amendment is either pending or not.
11 It is conceivable that the goal of consensus, if there is one. could be defeated where the last State to
ratify harbors an entirely different intent or purpose in approving the amendment than did the first
ratifying States o r the proposing Congress. Thus, for example, the meaning o f the words o f an am end­
ment chosen by the proposing Congress could conceivably change dramatically with the passage o f
time. If there is a substantive consensus requirement beyond the procedural formalities o f Article V,
this hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not
the case with the Congressional Pay Amendment. The intent and purpose behind this amendment have
been consistent from its proposal by Madison to its recent ratification. We, therefore, express no opin­
ion on any hypothetical scenario that may present a more fundamental challenge to the notion of con­
sensus. We conclude only that consensus itself does not necessarily require contemporaneity. M ore­
over, of course, if the absence of a time limit introduces a danger into the Article V amendment process,
the solution is to specify a time limit, either in the text of the amendment or the proposing resolution.
14 See Walter Dellinger, The L eg itim a cy o f C onstitu tio n a l C hange: R ethinking the A m e n d m e n t P rocess,
97 Harv. L. Rev. 386,418 (1983) (“Dellinger”): “ Attention to th[e] formalities [specified in Article V] is
more likely to provide clear answers than is a search for the result that best advances an imputed ‘policy’
of ‘contem poraneous consensus.’” Professor Dellinger nevertheless maintains that a proposed am end­
ment, like the Congressional Pay Amendment, that languishes for years without action by state legisla­
tures could be considered dead. Id. at 425. Dellinger's “doctrine o f desuetude," however, has itself been
criticized as “an anomolous position" in light of his reliance on the formalities o f Article V. John R. Vile,
J u d ic ia l R eview o f the A m en d in g Process: The D ellinger-Tribe D eb a te, 3 J.L. & Pol. 21, 33 (1986). S e e
also Laurence H Tribe, A C onstitution We A re A m en d in g : In D efen se o f a R estra in ed J u d ic ia l R ole, 97
Harv. L. Rev. 433, 434 n.6 (1983). In our view, the notion of desuetude is fraught with all o f the short­
com ings that characterize the "reasonable time” rule of D illon and must be rejected for the sam e reasons.
95
According to the theory that Article V contains an implicit time limit, the
State must deduce that it can ratify only if the time since proposal is still a
reasonable one. The implicit reasonable time rule can take one of two
forms. First, the Constitution might be said to impose the same time period
with respect to all proposed amendments. Putting aside the implausibility
of the suggestion that a legal rule includes a time certain without stating it,
this reading would require each state somehow to decide for itself what
limitation the Constitution implicitly imposes. This question is extremely
difficult, and there is no reason to believe that the different States would
answer it in the same way.15 In fact, the long history of congressional
treatment of time limits demonstrates that there is no agreement as to what
period of time would be reasonable.16
The other possible form of the implicit time limit rule is that the “reason­
able” time differs from amendment to amendment, depending on any number
of unstated factors. This theory requires that the States undertake an inquiry
even more difficult than the search for an implicit but specific time limit.
To take an example, this approach may suggest that the merits of a proposal
may affect the question whether it is still pending, because one approach to
judging the reasonableness of the period of ratification is to ask if the prob­
lem the amendment was designed to address is still pressing — a question
that is inseparable from the substance of the amendment. However the
question of reasonableness is to be answered, it is plain that answering it
can be extremely difficult, and that expecting all the States to answer it in
the same way is unreasonable.
The implicit time limit theory thus imposes an impossibly burdensome
requirement on ratifying States — that they discern the implicit limitation
and, if the system is to work smoothly, that they all discern the same one.
Most discussions of the implicit time limit obscure this difficulty by shifting
attention away from the situation of the States. For instance, Chief Justice
Hughes’s opinion in Coleman indicates that the reasonableness of the period
that has passed since proposal is for Congress to decide at the time of
promulgation. See 307 U.S. at 454. Congress’s decision at the end of the
15 The com pelling need for regularity and certainty in the amendment procedure is exactly what prompted
C ongress to include a tim e limit in the Eighteenth Amendment, which led the Court in D illo n to con­
sider the question”[w]hether a definite period for ratification shall be fixed so that all may know what it
is a n d s p e c u la tio n o n w h a t is a reasonable tim e m a y be a vo id ed ." 256 U.S. at 376 (emphases added).
“ W hat seem s to have been the first attem pt to impose a time limit on the States occurred during con­
gressional consideration o f the Fourteenth Amendment, when Senator Buckalew proposed an am end­
m ent to the join t resolution that would have required ratification within three y ears. Cong. Globe, 39th
Cong., 1st Sess. 2771 (1866). In 1917, during debates on the Eighteenth Amendment, Senator Ashurst
stated that he could support a time lim it o f “ 10, 12, 14, 16, 18, or even 20 years.” 55 Cong. Rec. 5557
(1917). Senator Harding proposed an amendm ent to the joint resolution that would have limited states'
consideration to a period o f six years. Senator Cummins offered a substitute amendment that would
have am ended Article V to require state ratification o f all amendments proposed after January 1, 1917,
to e ig h t y e a r s , expressing the view th at what is a “reasonable” period for ratification might differ in
each case. 55 Cong. Rec. 5652 (1917). During debate on the Child Labor Amendment in 1924, Repre­
sentative Linthicum and Senator Fletcher offered amendments that would have required ratification
within fi v e y e a r s of proposal. 65 Cong. Rec. 7288, 10,141 (1924).
96
process, however, can be of no use to States while that process is going on.
According to Chief Justice Hughes’s approach, the States must make deci­
sions concerning constitutional amendments without knowing whether those
decisions matter until they leam from Congress at some later date, if ever.17
The implicit time limit thesis is thus deeply implausible, because it intro­
duces hopeless uncertainty into that part of the Constitution that must function
with a maximum of formal clarity if it is to function.
In sum, the dictum of Dillon and the view of Chief Justice Hughes’s
plurality in Coleman are not authoritative nor are they persuasive. Article V
contains no time limit not stated in its text. The Congressional Pay Amendment
— rather, the Twenty-Seventh Amendment — although well aged, is not stale.18
II.
You have also asked whether, under 1 U.S.C. § 106b, the Archivist was
required to publish the Congressional Pay Amendment along with his cer­
tificate specifying that the Amendment has become valid, to all intents and
purposes, as part of the Constitution. We believe that he was required to do so.
A.
Section 106b provides:
Whenever official notice is received at the National Archives
and Records Administration that any amendment proposed to
the Constitution of the United States has been adopted, ac­
cording to the provisions of the Constitution, the Archivist of
the United States shall forthwith cause the amendment to be
published, with his certificate, specifying the States by which
the same may have been adopted, and that the same has be­
come valid,, to all intents and purposes, as a part of the
Constitution of the United States.
17See Note, C ritical D etails: A m en d in g the U nited S ta tes C o n stitu tio n , 16 Harv. J. on Legis. 763, 767
(1979) (“Although C olem an did spell out some guidelines, the state legislatures would still only specu­
late about what amount o f time Congress would conclude was reasonable. Only some direct signal from
Congress before or during ratification would definitely prescribe the time for action in the states.”). Se e
a lso 2 David K. Watson, The C onstitution o f the U n ited States 1311-12 (1910) (“Who but the state can
judge of what would be a reasonable time? It is for the state to ratify and cannot the state take its own
time to do it?”), q u o ted in C ase N ote, 24 Minn. L. Rev. 393, 394 n.9 (1940).
"S ev eral other amendments to the Constitution have been proposed to the States without time limits
and have never received the approval of three-fourths of the States. See C onstitution A n n o ta ted , at 51-
53. A resolution was introduced in the Senate purporting to declare that those proposals have "ex­
pired,” but it was not passed. See S. Con. Res. 121, 102d Cong., 2d Sess. (1992); 138 Cong. Rec.
S6839, S6908 (daily ed. May 19, 1992). B u t see 138 Cong Rec. S6949 (daily ed. May 2, 1992) (Sena­
tor Sanford asserting that “today the Senate also decided to declare that four other proposed and pend­
ing amendments . . . were to be considered to have lapsed”). This opinion does not address the current
vitality of any o f those amendments. We note, however, that the status of the amendment proposed in
1861 providing that “[n]o amendment shall be made to the Constitution which will authorize or give
Congress the power to abolish or interfere, within any State, with the domestic institutions thereof,
including that of persons held to labor or service by the laws of said State,” C onstitution A n n o ta te d at
52, may be determined by the subsequent adoption of the Thirteenth Amendment.
97
1 U.S.C. § 106b. The statutory directive is clear. First, the Archivist must
determine whether, as a matter of law, he has received “official notice” of an
amendment’s adoption “according to the provisions of the Constitution.” Id.
If he determines that he has received such notice, he must publish the amend­
ment with a certificate specifying, inter alia, that the amendment “has become
valid, to all intents and purposes, as a part of the Constitution.” Id. The
statute allows the Archivist no discretion in this regard.
Congress has required the executive branch to certify the validity of con­
stitutional amendments since 1818. In that year, Congress established a
statutory mechanism for the publication of constitutional amendments as
part of a general provision “for the publication of the laws”:
[W]henever official notice shall have been received, at the
Department of State, that any amendment which heretofore
has been, or hereafter may be, proposed to the constitution of
the United States, has been adopted, according to the provi­
sions of the constitution, it shall be the duty of the said
Secretary of State forthwith to cause the said amendment to
be published in the . . . newspapers authorized to promulgate
the laws, with his certificate, specifying the states by which
the same may have been adopted, and that the same has be­
come valid, to all intents and purposes, as a part of the
constitution of the United States.
Act of Apr. 20, 1818, ch. 80, § 2, 3 Stat. 439. Over time, Congress deleted
the reference to newspapers and transferred the duty of publication from the
Secretary of State, first to the Administrator of General Services, see Act of
Oct. 31, 1951, ch. 655, § 2(b), 65 Stat. 710 (1951); Reo'rg. Plan No. 20 of
1950, § 1(c), 64 Stat. 1272, and then to the Archivist, see National Archives
and Records Administration Act of 1984, Pub. L. No. 98-497, § 107, 98 Stat.
2280, 2291 (1984). The substance of the statutory directive, however, has
remained the same.
Section 106b and its antecedents have long been understood as imposing a
ministerial, “record-keeping” duty upon the executive branch. See 96 Cong.
Rec. 3250 (Message from President Truman accompanying Reorg. Plan No.
20 of 1950); Judith L. Elder, Article V, Justiciability, and the Equal Rights
Amendment, 31 Okla. L. Rev. 63, 75-76 (1978). The Archivist may not
refuse to certify a valid amendment. See United States ex rel. Widenmann v.
Colby, 265 F. 998, 999 (D.C. Cir. 1920) (no discretion to refuse publication
once official notice received, as publication is merely “ministerial act”), a ff’d
mem. sub. nom. U.S. ex rel. Widenmann v. Hughes, 257 U.S. 619 (1921);
United States v. Sitka, 666 F. Supp. 19, 22 (D. Conn. 1987), aff'd, 845 F.2d
98
43 (2d Cir.), cert, denied, 488 U.S. 827 (1988).19 Nonetheless, section 106b
clearly requires that, before performing this ministerial function, the Archi­
vist must determine whether he has received “official notice” that an
amendment has been adopted “according to the provisions of the Constitu­
tion.” This is a question of law that the Archivist may properly submit to
the Attorney General for resolution. See 28 U.S.C. § 511 (“The Attorney
General shall give his advice and opinion on questions of law when required
by the President.”).20
B.
As we concluded above, the Congressional Pay Amendment has been
adopted in accordance with the Constitution. The only obstacle to the
Archivist’s promulgation of the amendment would be the thesis, advanced
by some commentators, that under Coleman v. Miller, 307 U.S. 433 (1939),
Congress alone among the branches may determine whether an amendment
has been constitutionally adopted. Under this theory, the Archivist must
wait for a determination of the matter by Congress or, at most, issue a
“conditional certification” of an amendment in deference to possible con­
gressional action. We believe that Coleman is not authority for this theory,
and that congressional promulgation is neither required by Article V nor
consistent with constitutional practice. As a consequence, we believe that
the Archivist was not required to wait for a congressional promulgation to
certify the Congressional Pay Amendment as valid.
1.
In Coleman, the Court considered the validity of the ratification by Kan­
sas of the Child Labor Amendment, proposed by Congress in 1924. 307
U.S. at 435-36. Members of the Kansas Legislature had brought a state-court
action alleging that the Kansas ratification had been invalid because, inter alia,
the State Legislature had ratified the amendment some thirteen years after Con­
gress had proposed it. Congress had not imposed a time-limit on ratification
‘’ Indeed, there is authority for the proposition that the Archivist’s Certificate is not necessary to an
am endm ent's validity. The text of Article V contains no such requirement. See a lso D illon v. G lo s s ,
256 U.S. 368, 376 (1921) (Eighteenth Amendment became valid on the date it received its final ratifi­
cation; the date o f publication was “not material, for the date of [an amendm ent's] consummation, and
not that on which it is proclaimed, controls.”).
20 Others have recognized the Attorney General's role in resolving such legal questions. Concerning
the validity of ratifications of the Equal Rights Amendment, Professor Dellinger questioned w hy the
Administrator o f General Services, at that time the official responsible for certifying new amendments,
would submit the question to Congress: "An administrator uncertain about the lawful exercise o f one of
her responsibilities is normally expected to refer the question to the Attorney General for an opinion
and then act in accordance with that opinion.” 97 Harv. L. Rev. at 402. That was exactly w hat the
administrator at the time intended to do. Asked what would be done if the requisite number o f states
had ratified but some States had purported to rescind their ratifications, the Deputy Archivist stated that
“we would call upon the Attorney General to determine the answer to the legal question on rescission.”
Senate Hearings, at 109 (testimony of James E. O’Neill).
99
when it had proposed the amendment to the States. The Supreme Court of
Kansas held that the amendment remained susceptible to adoption despite
the thirteen-year delay, and dismissed the suit. Id. at 437.
The Supreme Court of the United States reversed. There was no majority
opinion on the validity of the Kansas ratification. Three Justices — Chief
Justice Hughes, Justice Stone, and Justice Reed — determined that the ques­
tion w hether Kansas had ratified within a “reasonable time” was a
nonjusticiable political question. Chief Justice Hughes asserted that the
resolution of such a question would depend on social, political, and eco­
nomic conditions that courts were incompetent to address. Id. at 453-54.
“On the other hand,” he reasoned, “these conditions [were] appropriate for
the consideration of the political departments of the Government.” Id. at
454. The Hughes opinion concluded that the question whether an amend­
ment had lapsed should “be regarded as an open one for the consideration of
the Congress when, in the presence of certified ratifications by three-fourths
of the States, the time arrives for the promulgation of the adoption of the
amendment.” Id.
Four Justices — Justice Black, joined by Justices Roberts, Frankfurter,
and Douglas — went even further. They disclaimed any judicial review of a
congressional determ ination as to the adoption of an amendment.
“ [Undivided control of [the amendment] process had been given by [Article
V] exclusively and completely to Congress,” Justice Black wrote. Id. at
459 (Black, J., concurring). “Therefore, any judicial expression amounting
to more than mere acknowledgement of exclusive Congressional power over
the political process of amendment is a mere admonition to the Congress in
the nature of an advisory opinion, given wholly without constitutional au­
thority.” Id. at 459-60. Two Justices — Justices Butler and McReynolds —
dissented on the ground that the amendment was invalid because of the
thirteen-year delay. Id. at 473-74 (Butler, J., dissenting).
Neither Chief Justice Hughes nor Justice Black explained the constitu­
tional basis for the assertion that Congress had authority to “promulgate” an
amendment. Rather, Chief Justice Hughes relied on the “special circum­
stances” surrounding the adoption of the Fourteenth Amendment in 1868.
Id. at 449-50.21 At that time, as we have seen, the duty of publication of
constitutional amendments rested with the Secretary of State. Because of
irregularities in the ratifications of Ohio and New Jersey — the legislatures
of both States had attempted to rescind their earlier votes to approve the
amendment — Secretary Seward issued a “conditional certification” of the
Fourteenth Amendment on July 20, 1868. Proclamation No. 11, 15 Stat. 706
(1868). Secretary Seward certified that if the resolutions of Ohio and New
Jersey were still effectual, notwithstanding the subsequent attempts to re­
scind, “then the . . . amendment . . . ha[d] become valid, to all intents and
31Justice Black provided no support for his assertion.
100
purposes, as a part of the Constitution.” Id. at 707. Secretary Seward dis­
claimed any authority to resolve the matter himself. Id.
The next day, Congress passed a concurrent resolution declaring the Four­
teenth Amendment to be a part of the Constitution and directing Secretary
Seward to promulgate it as such. Cong. Globe, 40th Cong., 2d Sess. 4266,
4295-96 (1868). The Senate passed the resolution without any debate, id. at
4266, and in the House the only question was whether Georgia, of whose
ratification the Speaker had received notice by telegraph, should be included
on the list of ratifying States. Id. at 4295-96. One week later, on July 28,
1868, Secretary Seward issued a second proclamation, “in execution o f ’ the
concurrent resolution and “in conformance thereto,” certifying the Fourteenth
Amendment as valid. Proclamation No. 13, 15 Stat. 710 (1868).
“Thus,” observed Chief Justice Hughes, in the case of the Fourteenth
Amendment “the political departments of the Government dealt” with ques­
tions concerning the ratification of the amendment. Coleman, 307 U.S. at
449. He apparently used the events surrounding the adoption of the Four­
teenth Amendment as a model and simply assumed that, if and when the
issue arose with respect to the Child Labor Amendment, the same proce­
dures would obtain. See id. at 454 (“The [eventual] decision by the Congress,
in its control of the action of the Secretary of State, of the question whether
the [Child Labor Amendment] had been adopted within a reasonable time
would not be subject to review by the courts.”). The plurality opinion did
not address the question whether, in the event the Secretary of State decided
to certify the amendment on his own, congressional promulgation would
still be necessary. Indeed, given the posture of the case, the Justices could
not have addressed that question: the Child Labor Amendment was nowhere
near ratification, and circumstances had not required the Secretary to make
any decision regarding the validity of the amendment.22
Chief Justice Hughes’s opinion is thus best understood as resting on a
political question rationale: courts will not attempt to resolve certain ques­
tions concerning the validity of states’ ratifications of constitutional
amendments. Rather, the decision of the political branches will control. To
read the Hughes opinion as addressing the relationship between the political
branches and requiring the Executive to defer to Congress on the adoption
of an amendment would be to resolve an issue that was not before the
Coleman Court. As it was, the Coleman dissenters took their brethren to
task for even addressing the role of Congress in the amendment process.
The Court had not heard argument on that point, they protested; Congress’s
role had not been “raised by the parties or by the United States appearing as
amicus c u r i a e 307 U.S. at 474 (Butler, J., dissenting). At most, Coleman
stands for the proposition that the validity of a constitutional amendment is
“ The Hughes opinion endorsed the Court’s earlier holding in L e ser v. G a m eit, 258 U.S. 130, 137
(1922), that the Secretary would be bound by official notice from a state respecting its ratification. Se e
C o le m a n , 307 U.S. at 451.
101
a political question. That proposition has no bearing on the actions of the
Archivist, an officer of one of the political branches.23
2.
On its merits, the notion of congressional promulgation is inconsistent
with both the text of Article V of the Constitution and with the bulk of past
practice.24 Article V clearly delimits Congress’s role in the amendment pro­
cess. It authorizes Congress to propose amendments and specify their mode
of ratification, and requires Congress, on the application of the legislatures
of two-thirds of the States, to call a convention for the proposing of amend­
ments. Nothing in Article V suggests that Congress has any further role.
Indeed, the language of Article V strongly suggests the opposite: it provides
that, once proposed, amendments “shall be valid to all Intents and Purposes,
as Part of this Constitution, when ratified by” three-fourths of the States.
(Emphasis added.) As Professor Dellinger has written, the Constitution “re­
quires no additional action by Congress or by anyone else after ratification
by the final state.” 97 Harv. L. Rev. at 398. To interpret Article V “as
requiring or permitting” a further step of congressional promulgation is, in
the words of another scholar, “no more defensible than to find a third house
of Congress hidden cleverly in the interstices of the constitutional language
vesting all legislative power in a House and a Senate.” Rees supra, at 899.
23We have discussed C hief Justice H ughes’s opinion because it is the only part of C olem an other than
the judgm ent that m ight be considered authoritative. If the views o f the majority Justices had any
com m on ground. C hief Justice Hughes's occupied the narrowest portion of that ground: Justice B lack's
disclaim er of any judicial inquiry is broader than the C hief Justice’s approach. Scholars doubt whether
C o le m a n has authority even as a political question decision. Grover Rees III, Throw ing A w ay the K ey:
T h e U n c o n stitu tio n a lity o f the Equal R ig h ts A m en d m en t E x ten sion, 58 Tex. L. Rev. 875, 887-88 (1980)
(“ R ees” ); Dellinger, at 388 n.8. See a lso A F L -C IO v. M a rch Fong E u, 686 P.2d 609, 616 (Cal. 1984)
Indeed, C hief Justice Rehnquist has questioned whether C o lem an's analysis still obtains in the context
o f A rticle V. S e e U h le rv . A F L-C IO , 468 U.S. 1310(1984) (Rehnquist, Circuit Justice); b u t cf. G o ld w a ter
v. C a rte r, 444 U.S. 996, 1002 (1979) (Rehnquist, J„ concurring) (relying on C olem an to conclude that
P resident’s pow er to denounce a treaty was a nonjusticiable political question).
24In 1977, this Office stated that Congress could by concurrent resolution extend the tim e-lim it for
ratification o f the Equal Rights Amendment. S ee Memorandum for Robert J. Lipshutz, Counsel to the
President, from John M. Harmon, Assistant Attorney General, Office o f Legal Counsel (Oct. 31, 1977)
(“ O ctober M em orandum "). S ee also E x te n d in g the R a tifica tio n P e rio d f o r the P ro p o sed E qu a l R ig h ts
A m e n d m e n t: H e a rin g s on H .J. Res. 638 B e fo re the S ubcom m . on C ivil a n d C o n stitutional R ig h ts o f the
H o u se C o m m , on th e J u d ic ia ry , 95th Cong., 1st Sess. 5-7 (1977) (statement of John M. Harmon, A ssis­
tant A ttorney G eneral, Office of Legal Counsel); Senate Hearings, supra, note 6. Relying on C olem an,
this O ffice further concluded that Congress has the exclusive power to determine whether an amend­
m ent h as been tim ely adopted. See October M emorandum at 17, 20-21, 43. See a lso P ow er o f a State
L e g is la tu r e to R e s c in d its Ratification o f a C o n stitu tio n a l A m en d m en t, 1 Op. O.L.C. 13 (1977). In an
aside, w e specifically referred to the Congressional Pay Amendment and noted our view that if and
when the thirty-eighth ratification was received, Congress would have the duty to decide whether too
much tim e had passed for the Amendment to be viable. S e e October Memorandum at 21 & n.26; see
a ls o id. at 35 n.43 (Congress may determine whether an amendment has been adopted by concurrent
reso lu tio n ). T hose opinions arose in a factual setting quite different from the instant case. The
“reproposal” o f a constitutional amendment may be an exclusively congressional function in a way that
th e certification o f a ratified amendment is not. See H o llin g sw o rth v. Virginia, 3 U.S. 378 (1798)
(thought to stand for the proposition that the President’s signature is not needed for proposal o f an
am endm ent). To the extent that our earlier opinions suggest that Congress alone must make the deter­
m ination o f the adoption o f a constitutional amendment, we reject them today.
102
In light of the overall structure of the Constitution, it would be surprising
if Article V did confer such exclusive power on Congress. The fundamental
features of the American constitutional system - federalism and separation
of powers — produce a division of power designed to ensure that the people,
rather than any organ of the government, are sovereign. As Attorney Gen­
eral Edward Bates explained in 1861, the Framers of the Constitution rejected
the notion that “Parliament is omnipotent.” See 10 Op. Att’y Gen. 74, 75
(1861). Instead, the federal government “is not vested with the sovereignty,
and does not possess all the powers of the nation. It has no powers but such
as are granted by the Constitution.” Id. at 77. The same principle undergirds
the separation of powers: the three branches of the federal government “are
co-ordinate and coequal — that is, neither being sovereign, each is indepen­
dent in its sphere, and not subordinate to the others.” Id. at 76. To give one
branch of government ultimate control over the Constitution’s very content
would be to repudiate the American approach in favor of a return to parlia­
mentary supremacy. Article V, however, shows that the Constitution is
consistent in its rejection of governmental sovereignty.
The drafting history of Article V reaffirms this conclusion. The Federal
Convention designed the amendment system so that both Congress and the
states played important roles. At the convention, the Framers manifested a
marked distrust of Congress in the amendment process. An early outline of
the Constitution specified that the Constitution could be amended “without
requiring the assent of the Natl. Legislature.” 1 Records Federal Convention
o f 1787 121 (Max Farrand, ed., revised ed. 1966). In supporting that provi­
sion, George Mason argued: “It would be improper to require the consent of
the Natl. Legislature, because they may abuse their power, and refuse their
consent on that very account.” Id. at 203.25 Mason reaffirmed his concern
in the final days of the convention and argued that Article V gave Congress
too much power and ability to abuse the process. 2 Records o f the Federal
Convention o f 1787 629 (Max Farrand, ed., revised ed. 1966). Article V was
specifically altered by the convention to accommodate Mason’s concern. Id.
Commentary during the ratification debates bears out the Framers’ inten­
tion to check the power of Congress in the amendment process. Madison
explained in Federalist No. 39 that the amendment system balanced the
States and the federal government, so that the system is “neither wholly
federal, nor wholly national.” The Federalist No. 39, at 257 (James Madison)
(Jacob E. Cooke ed., 1961). In discussing the provisions for calling a conven­
tion upon the petition of two-thirds of the States, Alexander Hamilton states:
[The amendments so proposed] “shall be valid to all intents
and purposes, as part of the constitution, when ratified by the
legislatures of three-fourths of the states, or by conventions in
“ The Congressional Pay Amendment, dealing as it does with the power o f members o f Congress to
increase their salaries, is just the sort o f amendment to which Mason’s comm ent would apply most
readily.
103
three-fourths thereof.” The words of this article are peremp­
tory. The congress “shall call a convention.” Nothing in this
particular is left to the discretion of that body [Congress].
The Federalist No. 85, at 593 (Alexander Hamilton) (Jacob E. Cooke, ed.,
1961). These words are equally applicable to ratification of an amendment
by three-fourths of the States. Discussing Article V more generally, Hamilton
concluded by observing that “[w]e may safely rely on the disposition of the
state legislatures to erect barriers against the encroachments of the national
authority.” Id. These statements are inconsistent with the notion that Con­
gress has a general power of superintendence over the amendment process.
Congressional promulgation is also at odds with the bulk of past practice
in this area. As we have seen, Chief Justice Hughes in Coleman used the
“special circumstances” surrounding the adoption of the Fourteenth Amend­
ment as a model for the only instance of congressional involvement in the
promulgation of an amendment following ratification in more than two hun­
dred years. See, e.g., Dellinger, at 400. There has never been another
“conditional certification” of an amendment by the executive branch.26 The
concurrent resolution “promulgating” the Fourteenth Amendment, adopted
with no substantive debate, was unnecessary and an aberration.
The events surrounding the adoption of the Fifteenth Amendment two
years later demonstrate that fact.27 Irregularities in State ratifications also
plagued this Amendment — New York had attempted to rescind its ratifica­
tion, see Cong. Globe, 41st Cong., 2d Sess. 1444 (1870), and two other
States, Ohio and Georgia, ratified the amendment only after having rejected
it once, see Memorandum to Don W. Wilson, Archivist of the United States,
from Martha L. Girard, Director of the Federal Register 6 (May 22, 1991).
26S e e Letter to Governors o f the Several States from Thomas Jefferson, Secretary of State (M arch 1,
1792), r e p r in te d in 2 The B ill o f Rights: A D o cu m en ta ry H istory 1203 (Bernard Schwartz, ed., 1971)
(First through Tenth Amendments); President John Adams, Message to Congress, 7 Annals o f Cong.
809 (1798) (Eleventh Amendment); L etter to Governors of the Several States from James Madison,
Secretary o f State (Sept. 25, 1804) (Twelfth Amendment), cited in C onstitution A nno ta ted , at 28 n.4;
C ertification by W illiam H. Seward, Secretary of State, 13 Stat. 774 (1865) (Thirteenth Amendment);
C ertification o f Ham ilton Fish, Secretary of State, 16 Stat. 1131-32 (1870) (Fifteenth Amendment);
C ertification by Philander C. Knox, Secretary of State, Act of Feb. 25, 1913, 37 Stat. 1785 (1913)
(Sixteenth Am endm ent); Certification by William Jennings Bryan, Secretary of State, Act o f May 31,
1913 ,3 8 Stat. 2049 (1913) (Seventeenth Amendment); Certification by Frank L. Polk, Acting Secretary
o f State, Act o f Jan. 28, 1919, 40 Stat., “ Eighteenth Amendment to the Constitution” 1 (1919); Certifi­
cation by Bainbridge Colby, Secretary o f State, Act of Aug. 26, 1920, 41 Stat. 1823 (1920) (Nineteenth
A m endm ent); Certification by Henry L. Stimson, Secretary of State, Act of Feb. 6, 1933,47 Stat. 2569
(1933) (Twentieth Amendment); Certification by W illiam Phillips, Acting Secretary of State, Act of
Dec. 5, 1933, 48 Stat. 1749 (1933) (Twenty-First Amendment); Certification by Jess Larson, Adminis­
trator o f General Services, 16 Fed. Reg. 2019 (1951) (Twenty-Second Amendment); Certification by
John L. M oore, A dm inistrator of General Services, 26 Fed. Reg. 2808 (1961) (Twenty-Third Amend­
m ent); Certification by Bernard L. Boutin, Administrator of General Services, 29 Fed. Reg. 1715(1964)
(Tw enty-Fourth A m endment); Certification by Lawson B. Knott, Administrator o f General Services, 32
Fed. Reg. 3287 (1967) Twenty-Fifth Amendment), Certification by Robert L. Kunzig, Administrator of
General Services, 36 Fed Reg. 12,725 (1 9 7 1) (Twenty-Sixth Amendment).
11 C hief Justice Hughes in Coleman briefly noted the events surrounding the ratification of the Fifteenth
Am endm ent, but did not assign them any weight in this analysis. S e e 307 U.S. at 450 n.25.
104
On February 21, 1870, Senator Williams introduced a joint resolution declar­
ing that the Amendment had become valid as part of the Constitution. Cong.
Globe, 41st Cong., 2d Sess. 1444 (1870). Shortly thereafter, the Senate
passed a different resolution requesting that the Secretary of State inform the
Senate which States had ratified the Amendment. Id. at 1653.
On March 30, 1870, Secretary of State Hamilton Fish issued a proclama­
tion certifying that the Fifteenth Amendment had become valid. The
proclamation noted the attempted rescission by New York, but did not men­
tion the questions regarding the Ohio and Georgia ratifications. 16 Stat.
1131 (1870). The Senate took no action in response to the proclamation,
and Senator Williams allowed his earlier resolution to die. Cong. Globe,
41st Cong., 2d Sess. 3142 (1870). There was some debate in the House
concerning the validity of the New York and Indiana ratifications, id. at
2298, but ultimately the House passed a resolution declaring that the Amend­
ment had become a binding part of the Constitution. Id. at 5441.28 At no
time during the consideration of the Fifteenth Amendment did anyone in
Congress suggest that congressional promulgation was essential to its valid­
ity. As the Fifteenth Amendment was adopted only two years after the
Fourteenth, the absence of such a suggestion demonstrates that the congres­
sional promulgation of the Fourteenth Amendment was merely an aberration.
If congressional promulgation is required, Secretary Fish illegally certi­
fied that the Fifteenth Amendment was part of the Constitution.29 Indeed,
the executive branch would have illegally certified every amendment except
the Fourteenth.30 If only to avoid this absurd conclusion, we must reject the
assertion that only Congress may promulgate an amendment.
III.
We conclude that the Congressional Pay Amendment has been validly
ratified pursuant to the procedures set forth in Article V, and that the Archi­
vist of the United States was required to promulgate the Twenty-Seventh
Amendment pursuant to 1 U.S.C. § 106b.
TIMOTHY E. FLANIGAN
Acting Assistant Attorney General
Office of Legal Counsel
“ The House Resolution also confirmed the validity of the Fourteenth Amendment. Cong. Globe, 41st
Cong., 2d Sess. 5441 (1870).
29The experience o f the Fifteenth Amendment also refutes a modified version of Justice Black’s thesis,
under which congressional certification would be required in doubtful cases. The status of the Fifteenth
Amendment was as doubtful as that of the Fourteenth, and for the same reasons.
30O f course, the certifications would nevertheless be binding on the courts. Se e L eser v. G arnett, 258
U.S. 130 (1922); U n ited S ta te s v. Thom as, 788 F.2d 1250, 1253 (7th Cir.) (Easterbrook, J.), cert, d e ­
nied. 479 U.S. 853 (1986), cf. F ield v. C lark, 143 U.S. 649, 669 (1892).
105
APPENDIX
The Congressional Pay Amendment had its beginnings in the ratification
conventions of States considering the original Constitution. Several States
proposed amendments when they ratified the Constitution. Two of these,
Virginia and New York, included a precedent to the Congressional Pay Amend­
ment. 2 The Bill o f Rights: A Documentary History 844, 916 (Bernard
Schwartz, ed., 1971) (“Schwartz”).1 North Carolina proposed amendments
on August 2, 1788, without at first ratifying the Constitution. Id. at 966,
977. Among the amendments it proposed was a congressional pay provision
taken almost verbatim from Virginia’s. See id. at 970-71. Representative
James Madison included Virginia’s proposal in the resolution of amend­
ments he proposed to the House on June 8, 1789. 4 Documentary History o f
the First Federal Congress of the United States o f America 9, 10 (Charlene
Bangs Bickford and Helen E. Veit, eds., 1986) (“4 First Congress"). On the
motion of Elbridge Gerry, the proposed amendments of several States, in­
cluding New York’s congressional pay proposal, were also put before the
House. Id. at 4, 19, 24.
There was relatively little debate on the proposed Congressional Pay
Amendment in Congress. Madison forecast that Congress’s power over the
compensation of its members was unlikely to be abused, but nevertheless
pointed out the impropriety of giving members the power “to put their hand
into the public coffers, to take out money to put in their pockets.” 1 Annals
of Cong. 457 (Gales & Seaton eds., 1789). Congressman John Vining later
echoed this sentiment: “There was, to say the least of it, a disagreeable
sensation, occasioned by leaving it in the breast of any man to set a value on
his own work.” Id. at 756-57. Another Congressman, however, thought that
“much inconvenience and but very little good would result” from the amend­
ment. Id. at 756 (statement of Theodore Sedgwick).
Congress approved the proposal of twelve amendments to the Constitu­
tion on September 25, 1789. The Congressional Pay Amendment was
approved with only a minor change in wording made in the Senate. See 4
First Congress, at 44-46. As sent to the states for ratification, it read:
No law, varying the compensation for the services of the Sena­
tors and Representatives, shall take effect, until an election of
Representatives shall have intervened.
‘ Virginia ratified the Constitution on June 25, 1788, after narrowly defeating a motion to propose
am endm ents prior to ratification. See Schwartz, at 834-39. TWo days later, the convention proposed
am endm ents, including: “That the laws ascertaining the compensation of senators and representatives
for their services, be postponed, in their operation, until after the election of representatives immedi­
ately succeeding the passing thereof; that excepted which shall first be passed on the subject." Id. at
844. N ew York ratified the Constitution and proposed amendments on July 26, 1788. Among its
proposed am endm ents was “That the Compensation for the Senators and Representatives be ascer­
tained by standing Laws; and that no alteration of the existing rate of Compensation shall operate for
the Benefit o f the Representatives, until after a subsequent Election shall have been had." Id. at 916.
106
1 Documentary History o f the First Federal Congress o f the United States o f
America 208 (Linda Grant De Pauw, et al., eds., 1972) (“ 1 First Congress")
(reproducing entry from Appendix to Senate Legislative Journal, 1st Cong.,
1st Sess.). C f Act of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789). The pro­
posed amendments were transmitted to the eleven States that had ratified the
Constitution, as well as to North Carolina and Rhode Island. See 4 First
Congress, at 9, 48.
When the amendments were proposed, nine States constituted the three-
fourths necessary for ratification of the amendments. Before any States had
acted on the amendments, North Carolina ratified the Constitution; nine States
still constituted three-fourths. The Bill of Rights and the States: The Colo­
nial and Revolutionary Origins o f American Liberties xxi (Patrick T. Conley
and John P Kaminski, eds., 1992) (“Bill of Rights and the States”). The
Congressional Pay Amendment had been ratified by only four States before
Rhode Island ratified the Constitution on May 29, 1790, bringing the num­
ber of States in the Union to 13, three-fourths of which was ten. Before any
more States ratified the amendment, Vermont joined the Union, bringing the
total to 14, three-fourths of which was eleven. Regardless of the time at
which the “three-fourths” requirement was determined, however, the Con­
gressional Pay Amendment was never close to that total in its initial period.
It received only two more ratifications in 1791, for a total of six.2
Thomas Jefferson, as Secretary of State under George Washington, was
responsible for monitoring the States’ actions on the proposed amendments.
Id. at xxii. His tally shows that of the thirteen original States and Vermont,
six ratified the amendment. Id. at xxiii (photographic reproduction of
Jefferson’s tally). Five States rejected the amendment, three of them “si­
lently,” meaning that the ratification documents made no reference to the
Congressional Pay Amendment. Id. at xxii-xxiii. The other three States did
not respond: Massachusetts, Connecticut, and Georgia. Id.
The six States that ratified the Congressional Pay Amendment along with
what is now the Bill of Rights are:
o M aryland. D ecem ber 19, 1789. 1 F irs t C o n g re ss, at 349-50 (reproducing e n try in
S en ate Journal o f June 14, 1790).
o N orth C arolina, D ecem ber 22, 1789. 1 F irst C o n g re s s, at 346-47 (reproducing
en try in Senate Journal o f June 11, 1790).
o S outh C arolina, January 28, 1790, 1 F irs t C o n g re ss, at 275-76 (reproducing e n try
in Senate Journal o f April 3, 1790).
o D elaw are, January 28, 1790, 1 F irst C o n g re ss, at 253-54 (reproducing e n try in
S enate Journal o f M arch 8, 1790).
o Verm ont, N ovem ber 3, 1791, Schw artz, at 1202-03; B ill o f R ig h ts a n d the S ta te s ,
at xxii.
o V irginia, D ecem ber 15, 1791, Schw artz, at 1202.
2 By contrast, the third through twelfth proposed amendments, now known as the Bill o f Rights, were
ratified by the requisite eleven States by December 15, 1791, when Virginia ratified them. See B ill o f
R ights a n d the S ta tes, at xxii; Schwartz, at 1201-02.
107
The Bill of Rights was ratified without the Congressional Pay Amend­
ment by five States, two of which have since ratified the Congressional Pay
Amendment:
o N ew H am pshire ratified th e first and third through tw elfth proposed am endm ents
on January 25, 1790. 1 F ir s t C o n g re ss, a t 348-49 (reproducing entry in S enate
Jo u rn al o f June 14, 1790). T he docum ent transm itted to the C ongress indicates
th at it “rejected” the second article o f the proposed am endm ents. Id. at 348.
N ew H am pshire subsequently ratified the C ongressional Pay A m endm ent on M arch
7 , 1985. S e e 131 Cong. R ec. 6689 (1985); 138 C ong. Rec. S6831 (daily ed. M ay
19, 1992).
o N ew Jersey ratified all but the second am endm ent on N ovem ber 20, 1789. 1 F irs t
C o n g r e s s , at 475-76 (reproducing entry in Senate Journal o f A ugust 6, 1790).
T h e notification transm itted to C ongress d id not m ention the second proposed
am endm ent. Id.
N ew Jersey subsequently ratified the C ongressional P ay A m endm ent on M ay 7,
1992. 138 Cong. Rec. S 6831, S6846 (daily ed. M ay 19, 1992).
o T h e N ew York legislature ratified the first and th ird through tw elfth proposed
am en d m ents on February 24, 1790. 1 F ir s t C o n g re ss, at 279-80 (reproducing
en try in S enate Journal o f April 5, 1790).3 The docum ent transm itted to the
C o n g ress indicates that it ratified all o f the proposed am endm ents “except the
second.” Id . Although th a t docum ent d o es not m ention a form al rejection o f the
p ro p o sed am endm ent, a contem porary new spaper account reported that it w as
rejected by a vote of 52 to 5. Schw artz, at 1178.
o R h o d e Island ratified all b u t the second am endm ent on June 11, 1790. S e e 1 F irst
C o n g r e s s , at 389 (reproducing entry in Senate Journal o f June 30, 1790); B ill o f
R ig h ts a n d th e States, a t xxii. The notification transm itted to C ongress does not
m ention the second proposed am endm ent. 1 F irst C o n g re s s, at 389.
o P en n sylvania ratified all b u t the first and second proposed am endm ents on M arch
10, 1790. 1 F irst C o n g re s s, at 260-61 (reproducing entry in S enate Journal o f
M arch 16, 1790). The notification transm itted to C ongress does not m ention the
am en d m en ts that were n o t ratified. Id. N ew spaper accounts indicate that the first
tw o am endm ents were postponed for fu rth er consideration, but there is no in d ica­
tion o f w hether they w ere form ally rejected. Schw artz, at 1176.
Massachusetts, Connecticut, and Georgia did not notify the federal govern­
ment of any action on the proposed amendments.4
Further action to impose a constitutional limitation on congressional pay
did not come until 1816. During its first session, the Fourteenth Congress
passed a law replacing its per diem pay, which had remained unchanged
since the first Congress, with a salary of $1500 per year. Act of Mar. 19,
3The resolution was approved by New York's Council o f Revision on February 27, 1790. 1 F irst
C o n g re ss, at 280.
4 M assachusetts presented a unique case. Its legislative records indicate that it considered the am end­
m ents, and agreed to ratify most. The Congressional Pay Amendment was “rejected” by the M assachu­
setts Senate, Schw artz, at 1174, and was “not accepted” by the M assachusetts House. Id. at 1175.
H ow ever, M assachusetts did not notify the federal government of these actions. Id. at 1172. When
Secretary o f S tate Thom as Jefferson sought such notification, he was told that the M assachusetts legis­
lature had never passed the official bill ratifying the amendments. Id. at 1175. Massachusetts ultimately
ratified the Bill of Rights in 1939, as did Georgia and Connecticut. Bill o f Rights an d the States, at xxii.
108
1816, ch. 30, 3 Stat. 257. See also 29 Annals of Cong. 199-204 (1816). The
Compensation Act was extraordinarily unpopular. See Henry Adams, History
o f the United States of America During the Administrations of James Madi­
son 1274-76 (Library of America 1986). Immediately upon convening the
second session of the Congress, a bill repealing the Act was introduced. See
30 Annals of Cong. 10 (1816). Beyond merely a repeal of the offensive
statute, Senator James Barbour introduced a joint resolution proposing a con­
stitutional amendment identical to the Congressional Pay Amendment in all
but punctuation:
No law varying the compensation for services of the Senators
and Representatives shall take effect until an election of Rep­
resentatives shall have intervened.
Id. at 30. See also Herman V. Ames, The Proposed Amendments to the
Constitution o f the United States During the First Century o f its History,
H.R. Doc. No. 353, 54th Cong., 2d Sess., pt. 2, at 34 (1897) (“Ames”).
Congress repealed the Compensation Act, see Act of Feb. 6, 1817, ch. 9, 3
Stat. 345, but did not act on the proposed amendment.
Nevertheless, several states joined the call for such an amendment. On
January 17, 1817, the General Assembly of Kentucky proposed a constitu­
tional amendment nearly identical to the Congressional Pay Amendment:
That no law varying the compensation of the members of the
congress of the United States, shall take effect until the time
for which the members of the house of representatives of that
congress by which the law was passed, shall have expired.
1816-17 Ky. Laws 279. See also Ames, at 333. The legislatures of Massa­
chusetts and Tennessee passed resolutions proposing similar amendments.
Ames, at 34-35, 333. Tennessee’s resolution, identical to that of Kentucky
except for punctuation and capitalization, was received by the Senate and
printed in the Annals o f Congress although only by a narrow vote after
“considerable debate.” 31 Annals of Cong. 170 (1818). Congress took no
action on any of these proposals. The legislature of Illinois, however, passed
a resolution criticizing Kentucky’s proposed amendment as “unnecessary
and inexpedient” and directing Illinois’s representatives in Congress to op­
pose the proposal. 1821 111. Laws 187. Illinois’s resolution was transmitted
to Congress. 38 Annals of Cong. 35 (1821). Vermont, Ohio and New Hamp­
shire also passed resolutions opposing Kentucky’s proposal. 1817 Vt. Laws
100-01; 1818 Ohio Laws 202-03; 1818 N.H. Laws 165. See also Ames, at
333. It does not appear that any of those States took action at that time to
ratify or reject the Congressional Pay Amendment proposed by the first
109
Congress, nor is there any indication whether anyone at the time considered
that amendment to be pending before the States.5
In 1822, three new amendments related to congressional salaries were
proposed, though Congress did not act on any of them. Ames, at 35. One
was essentially the same as the Congressional Pay Amendment, except that
it did not apply to Senators:
That no increase or diminution of the compensation to Repre­
sentatives, for their services as such, shall be made by Congress,
to have effect or operation during the period for which the
members of the House o f Representatives, acting upon the sub­
ject, shall have been elected.
39 Annals of Cong. 1752 (1822). Another fixed the compensation of mem­
bers of Congress at the amount paid to members of the first Congress. See
id. at 1768. The third provided that compensation for members of Congress,
as well as the President and Vice President, would be fixed every ten years,
after the census, and that alterations would take effect only after the particular
official’s current term had expired. Id. at 1777-78. Again, there is no indication
whether those members proposing the amendments believed that the amend­
ment proposed by the first Congress was still pending. The brief remarks in the
Annals o f Congress do not address the issue. See id. at 1753, 1768.
The only state to take formal action on the Congressional Pay Amend­
ment in the 19th century was Ohio. Its General Assembly ratified the proposed
amendment on May 6, 1873. As expressed in the ratifying resolution, the
legal theory was straightforward: under Article V, proposed amendments be­
come valid when ratified by three-fourths of the States, and the Congressional
Pay Amendment “not having received the assent of the Legislatures of three-
fourths of the several States is still pending for ratification.” 1873 Ohio
Laws 409 (joint resolution ratifying the second article of the twelve amend­
ments to the Constitution submitted by the first Congress).6 It is unclear
what became of Ohio’s ratification. Although the resolution called upon the
governor to transmit the ratification to the President and Congress, more than
one hundred years later, in 1985, the National Archives and Records Service
reported that Ohio, as well as several other States, had not sent official notice
of ratification to the federal government. Robert S. Miller and Donald O.
Dewey, The Congressional Salary Amendment: 200 Years Later, 10 Glendale
5 Vermont had already ratified the Congressional Pay Amendment and New Hampshire had previously
rejected it. S e e su p ra , pp. 107-08.
‘ O hio’s action received considerable attention early in this century, when several proposals were made
to am end the C onstitution to impose a tim e limit on ratification for all amendments. M embers of
C ongress supporting the proposal pointed to Ohio's ratification of the Congressional Pay Amendment
as a prim e exam ple o f the consequences o f having no time limits on amendments. S e e e.g., 55 Cong.
Rec. 5556-57 (1917); 58 Cong. Rec. 5697, 5699 (1919).
110
L. Rev. 92, 102 (1991).7 Those States have since transmitted official notices.
See id.\ 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) (Archivist’s certifica­
tion of the 27th Amendment, listing the forty states that had ratified the amendment
and transmitting notification to the Archivist before May 18, 1992); 138 Cong.
Rec. S6835 (daily ed. May 19, 1992).
The controversial pay increase that provoked Ohio’s ratification led to
activity in Congress as well. Just as in the early 1800’s, several new amend­
ments, similar to that proposed by the first Congress, were introduced. Ames
at 35. Congress took no action on them, however, instead repealing the pay
increase. Id.
The next action on the Congressional Pay Amendment did not come until
March 3,' 1978, when the Wyoming legislature ratified it. See 124 Cong.
Rec. 7910 (1978).8 Five years later, on April 27, 1983, Maine ratified the
amendment, 130 Cong. Rec. 25,007-08 (1984), bringing the total number of
ratifications to nine. Since then, thirty-two additonal States have ratified the
amendment, most recently Missouri and Alabama on May 5, 1992, Michigan
and New Jersey on May 7, 1992, Illinois on May 12, 1992, and California
on June 26, 1992. See 57 Fed. Reg. 21,187, 21,188 (May 19, 1992)
(Archivist’s certification); 138 Cong. Rec. E2237 (daily ed. July 24, 1992)
(California). Thus, forty-one States have now ratified the amendment, three
more than three-fourths of the fifty States.
Some States that have ratified recently have elaborated the legal basis for
their actions in their ratifying resolutions. Fourteen States mentioned the
Supreme Court’s decision in Coleman v. Miller, 307 U.S. 433 (1939), in
their ratifying resolutions. Many used language to this effect:
Whereas, the legislature of the state of New Mexico acknowl­
edges that the article of amendment to the constitution of the
United States proposed by resolution of the First Congress on
September 25, 1789, may still be ratified by states’ legislatures as
a result of the ruling by the United States supreme court in the
landmark case of Coleman v. Miller, 307 U.S. 433 ( 1 9 3 9 )....
132 Cong. Rec. 3956 (1986) (New Mexico). Accord 134 Cong. Rec. 14,023
(1988) (Arkansas); 133 Cong. Rec. 11,618-19 (1987) (Montana); 135 Cong.
Rec. 15,623 (1989) (Nevada); 135 Cong. Rec. 20,519-520 (1989) (Oregon);
135 Cong. Rec. 11,900-01 (1989) (Texas); 136 Cong. Rec. S9170 (daily ed.
June 28, 1990) (Kansas); 137 Cong. Rec. S I0,949 (daily ed. July 25, 1991)
(North Dakota); 138 Cong. Rec. S6845 (daily ed. May 19, 1992) (Alabama).9
Other States referred to Coleman without expressly tying it to their power
7 It should be noted that notice o f ratification by at least some of those States had been previously
received by Congress and published in the Congressional Record. See 124 Cong Rec. 7910 (1978)
(Wyoming); 130 Cong. Rec. 25,007-08 (1984) (Maine).
'T h e Governor of Wyoming signed the ratification on March 6, 1978. Miller and Dewey, 10 Glendale
L. Rev., supra, at 100.
’ For ease of reference, we have cited to the resolutions as reprinted in the Congressional Record,
Continued
111
to ratify the Congressional Pay Amendment, and also noted the lack of any
time limit either generally in Article V or specifically in the Congressional
Pay Amendment as proposed to the States. For example, Colorado, which on
April 22, 1984, became the tenth State to ratify the amendment, states:
Whereas, Article V of the United States Constitution does not
state a time limit on ratification of an amendment submitted
by Congress, and the First Congress specifically did not provide
a time limit for ratification of the proposed amendment; and
W hereas, The United States Supreme Court has ruled in
Coleman v. Miller, 307 U.S. 433 (1939), that an Amendment
to the United States Constitution may be ratified by states at
any time, and Congress must then finally decide whether a
reasonable time had elapsed since its submission when, in the
presence of certified ratifications by three-fourths of the States,
the time arrives for the promulgation of the adoption of the
amendment, . . . .
138 Cong. Rec. S6837 (daily ed. May 19, 1992) (Colorado). Accord 135
Cong. Rec. 5821 (1989) (Iowa); 135 Cong. Rec. 14,147 (1989) (Minnesota);
138 Cong. Rec. S 14,974 (daily ed. Sept. 24, 1992) (Missouri); 138 Cong.
Rec. S8387 (daily ed. June 17, 1992) (Illinois).
Other States have not cited Coleman, and instead have emphasized, as
Ohio did, the absence of a time limit in the Congressional Pay Amendment
proposal. For example, Wyoming, the first State to ratify the amendment in
this century, stated in its ratifying resolution:
Whereas the Congress of the United States, upon proposing
that amendment, did not place any time limitation on its final
adoption . . . .
1978 Wyo. Sess. Laws. 427. Accord 134 Cong. Rec. 9525 (1988) (Georgia);
134 Cong. Rec. 8752 (1988) (West Virginia); 135 Cong. Rec. 14,816 (1989)
(Alaska); 136 Cong. Rec. S10.091 (daily ed. July 19, 1990) (Florida). See
also 133 Cong. Rec. 24,779 (1987) (Wisconsin) (noting additionally that
“the congress of the United States has the power to impose reasonable time
’ (....continued)
although such publication has no independent legal consequence. The States generally transmit certified
copies o f the resolutions directly to the Archivist of the United States. The resolutions, except for
C alifo rn ia’s, are also reprinted together in the Congressional Record. See 138 Cong. Rec. S6831-46
(daily ed. M ay 19, 1992). A tabulation by the Archivist o f the dates o f ratification can be found in the
Congressional Record. Id. at S6831.
112
limits for the ratification of proposed amendments”). Wisconsin’s ratification
is noteworthy also because it is the only one that provides a rationale for the
authority to ratify an amendment that was proposed before the State entered
the Union:
Whereas, the congressional pay changes amendment was val­
idly ratified by the state of Vermont on November 3, 1791,
even though Vermont had not been one of the original 13
states to which the proposed amendment had been submitted,
and had not yet achieved statehood when the amendment was
submitted . . . .
Id.
Finally, many States mention neither Coleman nor time limits, nor allude
to the fact that the amendment is approximately 200 years old. See 130
Cong. Rec. 25,007-08 (1984) (Maine); 1985 S.D. Laws 27 (South Dakota);
131 Cong. Rec. 6689 (1985) (New Hampshire); 131 Cong. Rec. 9443 (1985)
(Arizona); 131 Cong. Rec. 27,963 (1985) (Tennessee); 131 Cong. Rec. 27,963-
64 (1985) (Oklahoma); 132 Cong. Rec. 8284 (1986) (Indiana); 132 Cong.
Rec. 12,480 (1986) (Utah); 133 Cong. Rec. 23,571 (1987) (Connecticut);
134 Cong. Rec. 18,760 (1988) (Louisiana); 135 Cong. Rec. 14,572-73 (1989)
(Idaho); 138 Cong. Rec. S7026 (daily ed. May 20, 1992) (Michigan); 138
Cong. Rec. S6846 (daily ed. May 19, 1992) (New Jersey); 138 Cong. Rec.
E2237 (daily ed. July 24, 1992) (California). The Idaho legislature’s resolu­
tion was based, pursuant to state law, on a state referendum on the amendment.
135 Cong. Rec. 14,572-73 (1989).
The Archives has indicated that it has received no rescissions of previous
ratifications of the Congressional Pay Amendment, nor have we found any
public record of rescissions.10
10 Several of the States that have ratified the amendment, however, had previously rejected it. To the
extent reflected in documents transmitted to the federal government. New Hampshire had expressly
rejected the amendment, while New Jersey had simply failed to ratify it when ratifying the other pro ­
posed amendments. In 1817, Vermont, which had ratified the amendment in 1791, passed a resolution
opposing a similar amendment proposed by Kentucky, but the resolution specifically refers to the K en­
tucky, proposal and does not purport to rescind Vermont's earlier ratification of the Congressional Pay
Amendment. See supra, p. 109. Oklahoma's ratification purports to have an expiration date — D ecem ­
ber 31, 1995 — pursuant to state law. 131 Cong. Rec. 27,964 (1985).
113