Authorizing constitutional text on the purported Twenty-seventh Amendment.

• Author: Levinson, Sanford

This essay began as a teaching exercise for my first-year class on constitutional law; a version of it begins the 1993 Supplement to Paul Brest and Sanford Levinson, Processes of Constitutional Decisionmaking. The "27th Amendment" is a veritable godsend to all professors who focus on basic theories of constitutional interpretation, and I hope that the discussion below will be pedagogically useful. The uncertain status of the Amendment, however, also raises in an almost pure form the question of the role of the constitutional law professor as a possible "creator" (or at least partner in the creation) of the Constitution, which is the subject of the concluding section of this essay.

1. THE BACKGROUND OF THE OSTENSIBLE 27TH AMENDMENT

   Every casebook on constitutional law, not surprisingly, reprints the "Constitution of the United States." Some do it at the beginning of the text;(1) others put it at the end.(2) Whatever debates might be taking place about the "canon" within the field of American constitutional law,(3) all apparently agree that the text of Constitution itself is part of the canon.(4) So much is unproblematic. But is it equally unproblematic what constitutes the canonical textual "Constitution" itself that is to be reprinted? At least at the present time, the answer, I suggest, is no. The reason for this surprising (or, for some, perhaps astounding and incomprehensible) statement is the controversy over the status of the purported Twenty-Seventh Amendment, which reads, "No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election for Representatives shall have intervened."(5)

   The controversy surrounding the "27th Amendment" derives from the fact that it was initially proposed as the "second amendment" of the twelve sent by the First Congress to the states in 1789. It obviously was not ratified by the requisite number of nine states at that time,(6) though it was ratified by six states prior to 1800. It did not have a deadline for ratification; indeed, a seventh state ratified the Amendment in 1873. "Rediscovered" in the late 1970s by a student at the University of Texas, it was brought up in many state legislatures. Beginning with Wyoming's ratification on March 3, 1978, it was ratified by 32 states thereafter, with Michigan, on May 7, 1992, becoming the 38th state to ratify the 1789 proposal. A flurry of newspaper stories brought the Amendment, and questions about its status, to public attention. Several major members of Congress indicated their doubts about the circumstances of "ratification," and it appeared that a legislative debate would ensue.

   Some legal commentators suggested that the Amendment had "died" in the two hundred years between its first and final ratifications. They emphasized in particular the Supreme Court's assertion--in dicta, to be sure--in a 1921 case, Dillon v. Gloss,(7) which involved the then unprecedented placement by Congress of a seven-year time limit for the ratification of the Eighteenth Amendment imposing prohibition on the nation. A unanimous Court, through Justice Van Devanter, indicated that it found nothing in Article V "suggest[ing] that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the States may be separated from that in others by many years and yet be effective." Indeed, said the Court, there is much "which strongly suggests the contrary." For example, congressional proposal and state 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." Moreover, the very process of amendment itself is presumably triggered by a perception of "necessity" in regard to the topic of amendment, "the reasonable implications being that when proposed they are to be considered and disposed of presently."

   Perhaps most important, though, is the third reason given by the court, the ostensible requirement of ratification "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 scattered through a long series of years would not do." Van Devanter quoted John Jameson's leading text on the Constitutional Convention for the proposition "|that an alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, 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.'"

   Indeed, the Court noted that the question of time limits for ratification was not entirely abstract or hypothetical, for it pointed out that rejection of the "contemporaneous ratification" requirement would lead to the conclusion that "four amendments proposed long ago--two in 1789, one in 1810 and one in 1861-are still pending." It therefore went on to offer an advisory opinion that "it is quite untenable" to believe that they could now be added to the Constitution after the passage of so many years since congressional proposal. The Court concluded "that the fair inference or implications from Article V is that the ratification must be within some reasonable time after the proposal."(8)

   Citing Dillon, among other authorities, Yale professor Paul Gewirtz wrote a letter(9) to Illinois Senator Paul Simon advising that "by concurrent resolution Congress

   --formally decline to proclaim the amendment as a ratified

   part of the Constitution; but

   --send the amendment back out to the states for ratification

   with an explicit ratification period of 7 years."

   Professor Gewirtz admitted that Article V is silent about time limits, but he noted that "[i]n law, virtually all documents are interpreted to contain an implicit reasonable time period. For example, when you extend an offer to someone to enter a contract, such offers are interpreted to be open only for a |reasonable' time period, even in the absence of any explicit time restrictions." He argued that it was especially important to read a "reasonable time" limitation into Article V: "The point of sending an amendment to the states for ratification is to test whether there is a broad consensus in support of the amendment. Only if the amendment is ratified within a generation or less can we be confident that a consensus has existed at a particular point in time."

   Other commentators endorsed the suggestion that, at the least, Congress hold formal hearings about the provenance of the "27th Amendment" and come to some conclusion about the issue, whether it be to agree with Professor Gewirtz and formally repropose it for new ratifications or to "declare" that the 1789 proposal had been truly ratified. Indeed, Professor Gewirtz wrote Senator Simon that "Congress clearly has the power" to decide "whether ratification has occurred within a reasonable period of time," citing Coleman v. Miller.(10) That case dealt with the ratification process in regard to a Child Labor amendment proposed in 1924, without a time limit for ratification, and ostensibly ratified by the Kansas legislature in 1937. The Court, through Chief Justice Hughes, referred to a congressional authority to "promulgate" amendments--i.e., to declare them ratified--and went on to state that Congress "in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its...