From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal
Subject: Re: XXVII Amendment
Date: 13 Aug 92 02:21:20 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Aug11.110756.1@acad3.alaska.edu>, fsars@acad3.alaska.edu 
(Allen R Sparks) writes:
> > Indeed, this is the first I've heard on m.l. about the XXVII ammendment.  
The
> > last thing I heard about it on the news was that Thomas Foley was going to
> > fight it somehow.  Since the Constitution does not provide for post 
> ratification
> > Congressional review of constitutional ammendments, he seemed to be on 
rather
> > shaky grounds.
> > 
> > Is it accepted that the ammendment has gone into effect?  Or, will we have
> > to wait for a test case?
> 
> Some official in either the Justice Department or State Department has
> accepted the amendment.  The courts haven't ruled.  Yet.  I hope it's
> killed.  While I like the content of the amendment itself, I don't
> like amendments getting ratified centuries or even decades after being
> proposed.  This is the first time this Constitutional weakness has
> been successfully used. 

A recent article in the ABA Journal (August, 1992) seems to state that it's 
passed and official (all typos mine, fair use without permission):

"27th Amendment Ratified: Congressional vote ends debate over 203-year-old 
pay-raise proposal.

"The 27th Amendment to the U.S. Constitution arrived like a sneak attack by 
history, with so little hoopla - let alone searching debate - that its 
ratification May 7 surprised politicians and scholars alike.

"What debate followed fizzled almost at once, smothered by the vote of a 
Congress that is nervous about upcoming elections. . . .

"Is such a dilatory ratification process proper?

"Yes, says Harvard's Laurence Tribe.  He argued in The Wall Street Journal 
that 'a ratification trajectory spanning the centuries and representing a 
considered judgment shared across generations' indicates truer consensus than 
the 'political wildfire[s]' propelling other amendment proposals.

"On the other side is Stanford Law Professor Gerald Gunther.  'I had always 
assumed and continue to argue that there was a rather vague contemporaneous 
ratification requirement,' he said.  'As a matter of process, it makes sense.'

"Within a week of Michigan's ratification of the 27th Amendment, some in the 
current Congress were considering ways to block it.  Rep. Don Edwards, D-
Calif., announced his House Judiciary Subcommittee on Civil and 
Constitutional Rights would soon hold hearings.

But Congress decided to consider politics rather than subcommittee testimony, 
passing in no time a resolution declaring that the James Madison pay-raise 
amendment a part of the Constitution.

"Gunther, who was set to testify at Edwards' hearing, explained it this way: 
'The backbone of members of Congress is composed of bananas.'

"Congress' acceptance of the two-century-old amendment sets an unexpected 
precedent and raises some concerns, notes Thomas M. Durbin, a lawyer with the 
Congressional Research Service who has studied the issue of contemporaneous 
ratification.  What now happens to other elderly proposals to change the 
Constitution?

"Among the four remaining unratified amendments without built-in deadlines is 
one that would prevent Congress from outlawing slavery.  Sen. Robert Byrd, D-
Va., has introduced a resolution to declare all four dead.

"And Durbin said 32 states out of the necessary 34 have petitioned for a new 
constitutional convention, although three later withdrew support.  The first 
petition dates back to 1975.

 - Don J. DeBenedictus"

Personally, while I usually like reading Gunther, I think he hasn't 
articulated any sound reason disallowing the amendment.  After all, the early 
states, if they no longer approved, could withdraw their ratifications.



Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.
Newsgroups: misc.legal