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The Constitutional Lessons of the Twenty-Seventh Amendment

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The Constitutional Lessons of the Twenty-Seventh Amendment A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment Michael Stokes Paulsen' CONTENTS I. INTRODUCION . ............................................ 678 II. THE PROBLEMS WITH THE LEADING THEORIES ...................... 684 A. The "Contemporaneous Consensus" Model: The Arguments of Dillon v. Gloss ......................................... 684 1. A False Start: Succeeding Steps in a Single Endeavor .......... 689 2. An Implied Time Limitation in the Desire To Amend? ........... 690 3. Aggregating the Will of the People: Snapshot Sovereignty Versus Formal Rules ................................. 691 4. The Argument from Absurd Consequences: The Twenty-seventh Amendment's Lingering Companions ...................... 696 B. The "Contract" Model ................................... 705 C. The "CongressionalPower/Political Question" Approach ........... 706 1. Coleman v. Miller as Bad History: The FourteenthAmendment "Precedent". ...................................... 707 2. Coleman v. Miller as Bad Law: The Political Question Doctrine and Its Substantive Variant ............................. 713 3. Coleman v. Miller in the Hands of Advocates: A Doctrinefor All Occasions ...................................... 718 I. A GENERAL THEORY OF ARTICLE V ............................. 721 t Associate Professor of Law, University of Minnesota Law School. I owe a tremendous debt of gratitude to my research assistant, Dale Caldwell ('94) for his tireless work in finding and compiling the texts of the literally hundreds of state applications for a constitutional convention that have been submitted in the history of our nation. Citations for these applications are collected in the Appendix. I would also like to thank Akhil Amar, Dale Caldwell, Dan Farber, John Harrison, Sandy Levinson, Mark Movsesian, John Nagle, William Van Alstyne and the participants at the University of Minnesota faculty workshop for their helpful comments and suggestions on earlier drafts of this Article. Of course, none of these persons should be held responsible for what I say. The Yale Law Journal [Vol. 103: 677 IV. CUMULATING APPLICATIONS ACROSS TIME AND SUBJECT: A CALL FOR A CONVENTION ........................... ....... 733 A. Formulatingthe Counting Rules ...................... ....... 735 1. Limited Versus Unlimited Conventions-Article V's Background Rules ............................ ....... 737 2. Interpreting Convention Applications: The Essential Irrelevance of the Limited/Unlimited Convention Debate ....... 743 3. The Legal Effect of an Invalid Application ........... ....... 749 B. Taking the Convention Possibility Seriously .............. ....... 756 V. CONCLUSION .............................................. 761 APPENDIX ................................................... 764 I. INTRODUCTION No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. -The Twenty-seventh Amendment This one kind of sneaked up on everybody. On May 7, 1992, Michigan became the thirty-eighth state to ratify as an amendment to the Constitution the above language drafted by James Madison and proposed by the First Congress in 1789 to be part of the original Bill of Rights. The proposal gathered only six state ratifications in the period during which the first ten amendments were ratified. It lay dormant-and presumed dead-for the better part of two centuries, interrupted only by Ohio's lone ratification in 1873. In 1982, Gregory Watson, then a twenty-year-old college student at the University of Texas, wrote a term paper arguing that the amendment could, and should, still be ratified. He got a "C."' Watson then began something of a one-man campaign to revive the amendment, writing letters to state legislators across the nation on his IBM Selectric typewriter from his home in Austin. Scholars of the amendment process treated the notion that the Congressional Pay Amendment proposal might yet be ratified as quaint and cute. Yet anger and frustration with perceived congressional self-dealing in the form of middle-of- the-night, rush-out-of-town pay raises spurred a wave of state ratifications-perhaps intended mostly as symbolic-during the 1980's. The amendment got its final push from public outrage over the congressional check 1. The Man Who Would Not Quit, PEOPLE WKLY., June 1, 1992, at 72. 1993] Article V bouncing scandal and the Senate's "midnight pay raise" of 1991: five states ratified it in May of 1992.2 As the thirty-eighth state ratification, Michigan's vote provided the constitutionally required approval of three-fourths of the state legislatures sufficient to make the proposal effective as a constitutional amendment. With that vote, the Twenty-seventh Amendment became, finally, part of the Supreme Law of the Land. Or did it? Michigan's ratification caught Congress, and a number of respected legal commentators, completely by surprise. Although this amendment had not been taken seriously for nearly two hundred years, a serious question was immediately presented as to the amendment's validity. No ratification process had ever taken as long-202 years-as this one had. Prior to the Twenty-seventh Amendment, the longest it had taken to ratify an amendment proposed by Congress was just under four years Michigan did not exist as a state when the First Congress submitted the pay amendment to the states. Had the amendment long since become a dead letter, incapable of 4 ratification, as Duke Law Professor Walter Dellinger confidently declared? If so, at what point did the proposal die and what aspect of Article V of the Constitution (which sets forth the procedures governing the amendment process) tells us the constitutional cause of death? Or is the amendment valid, but only because the 102d Congress so concluded in a declaratory resolution, on the theory that the amendment ratification process presents a "political question" within the exclusive power and prerogative of Congress (apparently today's Congress) to judge? A large number of Senators and Representatives, and the Congressional Research Service endorsed this theory, based in part on the work of Harvard Law Professor Laurence Tribe and others in defense of the purported extension of the ratification deadline for the unsuccessful Equal Rights Amendment in the late 1970's and early 1980's. But while approval and disapproval resolutions whirled around Capitol Hill in reaction to the Congressional Pay Amendment, Professor Tribe appeared to change his mind: the amendment is valid and Congress' opinion is immaterial, Tribe announced in a Wall Street Journal op-ed piece, with little elaboration. Tribe did not attempt to reconcile this position with his previously announced, ERA-era theory of plenary congressional power. 2. Richard L. Berke, 1789 Amendment Is Ratified but Now the Debate Begins, N.Y. TIMES, May 8, 1992, at AI; Robert Vitale, Illinois Finishes 40th in Amendment Race, CHI. TRIB., May 13, 1992, § 2, at 4. 3. The Tventy-second Amendment (limiting the President to two terms in office) was proposed on March 21, 1947, and was ratified by the requisite number of states on March 1, 1951. Proposal and Ratification of U.S. Const. amend. XXII, U.S.C. lxiii (1988). The Sixteenth Amendment (authorizing a federal income tax) also took nearly four years to ratify; it was proposed on July 12, 1909, and was ratified on February 25, 1913. Proposal and Ratification of U.S. Const. amend. XVI, U.S.C. lxi (1988). 4. Berke, supra note 2, at A21; see also infra note 16. 5. Laurence H. Tribe, The 27th Amendment Joins the Constitution, WALL ST. J., May 13, 1992, at A15. Professor Tribe's various positions on congressional power over the amendment process are discussed The Yale Law Journal [Vol. 103: 677 The National Archivist, the executive branch official charged by statute with the duty of certifying the amendment's ratification and publishing its official text,6 apparently thought the views of Congress immaterial. Acting one day before the House was scheduled to debate a "sense of Congress" resolution asserting the amendment's validity-and acting on the legal advice of executive branch attorneys in the Department of Justice 7-the Archivist certified the amendment as part of the Constitution. The Archivist did not state his justification, but the Justice Department later made clear the executive branch's simple reasoning: the formal proposal by a two-thirds majority of both houses of Congress and the formal ratifications of thirty-eight state legislatures is sufficient to make the amendment valid as law, no matter how far spaced out over time. There is no requirement of contemporaneous ratification, and there is no requirement of congressional approval. Who is right? There quickly came to be general agreement that the Twenty-seventh Amendment had become law.' Or, if there was not such agreement, there was an absence of political will on the part of Congress to contest this emerging consensus (at least until after the 1992 elections): Congress quickly voted to "accept" the amendment, by votes of 99-0 in the Senate and 414-3 in the House.9 Yet nobody seems to agree on why the Twenty-seventh Amendment should be regarded as valid and who gets to make that determination-the courts, Congress, or the Executive. It may be quite some time before Congress dares to challenge the validity of the amendment by voting itself a midterm or retroactive pay raise. In the absence of such a challenge there is unlikely to be any
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