A missed Bill of Rights anniversary, and the 27th Amendment


September 25, 1789, Congress had approved and enrolled the proposals, and sent twelve proposed amendments to the Constitution to the states for ratification.  Ten of the twelve amendments were approved, rather quickly, and by 1791 the were attached to the Constitution, known as the Bill of Rights.

The two proposals that failed to earn the required approval of three-fourths of the 13 states fell into a special limbo for Constitutional amendments that became clear only in the late 1970s when Congress discussed how long to wait for states to approve the Equal Rights Amendment (this is a much-simplified explanation, I know).  Congress put deadlines on the ratification process in the late 20th century, but the first twelve proposals had no deadlines.  In the 1980s, Congress passed a law that said any amendments floating around, unapproved, would be considered dead after a date certain.

Before that date passed, more states took a look at one of James Madison’s 1789 proposals, liked it, and passed it.

That amendment became the 27th Amendment to the Constitution, on May 7, 1992, 203 years after it was proposed:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

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6 Responses to A missed Bill of Rights anniversary, and the 27th Amendment

  1. Ed Darrell says:

    Good question, Mr. Goodwin — it’s really arcane:

    Article the first … After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

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  2. Fred Goodwin says:

    So what was the other ultimately unsuccessful amendment?

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  3. Ed Darrell says:

    I moved to the Senate Labor Committee staff when that issue was being worked out at Judiciary, and I didn’t track it well enough to cite from memory. A cite would be good — I didn’t (and don’t) have time at the moment to do it justice, Ray.

    I think one could make an argument that such a law violated the intent of the people who proposed the amendment, but I couldn’t think of a good argument to make that the time limits are unconstitutional. The litigation around the Equal Rights Amendment and the extension of time proposed there touched on these issues, if not dived deeply into them — but it was not my job to track it or deal with it. My apologies.

    Findlaw has an article on the issue generally that you may want to consult. You may also want to review the decision in Dillon vs. Gloss, from 1921.

    I love the impossible-to-believe-if-it-were-proposed-as-fiction fact that James Madison, perhaps our nation’s greatest-ever legislator, proposed the first ten amendments to the Constitution, and the 27th. His reach across two centuries to change the Constitution is probably unprecedented in U.S. history, and maybe in all of history.

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  4. James Hanley says:

    Ray C.,

    Good call for a cite. Always a good call.

    As to unconstitutionality, Coleman v. Miller is, I believe, the controlling legal case, and in it the Supreme Court ruled that any amendment with no specified “ratify by” date doesn’t ever lapse in its ability to be ratified, but that Congress has sole authority to decide if too much time has passed. So presumably Congress could pass a law ending the ratification prospects of all non-date limited amendments that were still pending.

    Wikipedia has a good overview of the case.

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  5. Ray C. says:

    In the 1980s, Congress passed a law that said any amendments floating around, unapproved, would be considered dead after a date certain.

    As much as I respect you and your blog, I hate to say [citation needed], but…[citation needed]. And might such a law itself be unconstitutional?

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  6. James Hanley says:

    And I would note that at least one, and I think both, of those at-the-time-unsuccessful amendments were originally arranged prior to what we now know as the First Amendment. As delightful as it is to think that freedom of speech and religion were placed first because they are of such primary importance, it was not actually the First Congress’s intent.

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