On This Day in History: Political Science Student Succeeds in Amending the Constitution.

The Constitution's 27th Amendment took 202 years to be ratified by the requisite number of states. The story is adorable.

|The Volokh Conspiracy |

On this day in 1992, Michigan became what was thought to be the 38th and crucial state to ratify the 27th Amendment to the U.S. Constitution.

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

The remarkable thing about the 27th Amendment is that it was approved by Congress in 1789. Yet it was not fully ratified until 202 years later. Several states ratified it in the years immediately following its approval by Congress, but not enough to make it part of the Constitution. After that, it was largely forgotten until ….

Fast forward to 1982, when Gregory Watson, a sophomore at the University of Texas, wrote a paper on the proposal for his political science class. In it, he offered the opinion that it was not too late for three-fourths of the states to finish the ratification process. For his trouble, he got a "C" on the paper.

It must have stuck in his craw. To prove himself correct, Watson undertook a letter-writing campaign to make the proposal a part of the Constitution. Given that there were now 50 states, ratification was a bigger deal than ever, requiring 38 of them to approve. Watson started out thinking he needed 32, because he was unaware of a few ratifications. For example, Ohio had ratified it in 1873 to protest a Congressional pay raise, and ornery Wyoming had ratified in 1978 for much the same reason. He learned of some of these ratifications as the process unfolded.

Maine became the first state to respond to Watson's campaign, ratifying the proposal on April 27, 1983. But the idea became popular, and lots of states followed. With Michigan on May 7, 1992, Watson was sure he had his 38.

But was the ratification process really kosher? Unlike some other proposals (including the proposal for the Equal Rights Amendment), this one did not contain a deadline. That was enough to convince the Archivist of the United States, who is charged under 1 U.S.C. § 106b with the responsibility for certifying when a proposal has been properly ratified.

The Archivist's action succeeded in annoying certain Congressional leaders. Under Coleman v. Miller (1939), the Supreme Court had earlier held that whether too much time had passed for a proposal to amend the Constitution that does not specify a deadline was a political question for Congress, not the courts. Congressional leaders believed the Archivist should have waited for Congress to weigh in. But can you imagine the hullaballoo that would have followed if Congress had rejected an amendment that made it more difficult to raise Congressional salaries? Think what you will about the average Member of Congress, there is no evidence that they are inclined to political suicide. The Senate voted 99-0 and the House voted 414-3 that the amendment had been properly ratified.

Two post-scripts are useful here:

First, it turned out Watson was misinformed. Kentucky had ratified the amendment back in 1792, so Michigan's ratification was unnecessary. Missouri's ratification two days earlier had been enough to do the trick.

Second, in 2017, Watson's former professor approved a grade change to "A+." Alas, UT did not recognize "A+" as a grade. UT therefore officially changed his grade to "A."

Does the grade change mean that he got college credit for his work at ratifying the amendment? I guess that's one way to look at it.

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  1. I don’t see any follow-up on whether the university approved the grade change.

  2. Forget the grade change, I hope he got a hell of a good job out of it.

    1. The article says he’s been working retail and serving as aide to various Texas legislators – apparently it’s seasonal work – appropriately enough considering his cause, it doesn’t seem to be richly remunerated.

  3. IIRC, the amendment was violated by Congress not long after ratification, and the courts ruled no one had standing to challenge the action. http://www.lifeofthelaw.org/20…..-it-again/

    1. Yes, sadly it was a demonstration of the potential futility of amending the Constitution. The Supreme court quickly rendered the amendment effectively moot. It’s now routinely violated.

    2. Can congress violate this amendment? It seems like it would be on the Treasury to enforce. Of course, I wonder if a current executive can claw back past illegal payouts. Or even prosecute past offenders.

      1. Besides the standing issue, which basically held that only the violators had any standing to challenge a violation… The bigger issue is that the Supreme court permitted the amendment to be circumvented, by letting Congress delegate the decision to raise its own pay to a body it effectively controls.

        For all practical purposes, the 27th amendment is a dead letter, and has been since shortly after it was ratified.

        An important lesson should we have a constitutional convention: If you’re contemplating amendments Congress won’t like, you’d better draft them to be water tight, addressing standing and prohibiting any form of circumvention. The Court is NOT going to uphold the “spirit” of an amendment the federal government didn’t want.

  4. ” The Senate voted 99-0 and the House voted 414-3 …”

    Whenever I see these counts, I always want to know who the missing and the ‘3’ were.

  5. The three were Neal Smith D-Iowa, Carl Perkins D-Kentucky, and Craig Washington D-Texas. The non-voting Senator was Lloyd Bentsen D-Texas

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