Congressional Pay Amendment

T he C ongressional Pay Am endm ent, which was originally proposed by C ongress to the States 

for ratification in 1789, and having been ratified by three-fourths o f the States, has been 

ratified pursuant to Article V and is accordingly now part o f the Constitution.

U nder 1 U .S.C . § 106b, the Archivist was, upon receipt o f form al instrum ents o f ratification 

from the requisite num ber o f States, required to publish the Congressional Pay A m endm ent 

along w ith his certificate specifying that the Am endm ent has becom e valid, to all intents and 

purposes, as part o f the Constitution.

May 13, 1992

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s i d e n t

You have asked for a summary of our views, on an expedited basis, on 

whether the Congressional Pay Amendment has been duly adopted in accordance with the formal requirements of Article V of the Constitution. The 

General Counsel of the National Archives and Records Administration has 

informed us that the Archivist of the United States has received word that a 

total of thirty-nine States have adopted the Amendment, one more than the 

three-fourths required under Article V. The Archivist expects to have received formal instruments of ratification from all the necessary States shortly 

and informs us that no state has purported to rescind its ratification.

Article V of the Constitution provides:

The Congress, whenever two thirds of both Houses shall deem 

it necessary, shall propose Amendments to this Constitution . . . 

which . . . shall be valid to all Intents and Purposes, as Part of 

this Constitution, when ratified by the Legislatures of three 

fourths of the several States, or by Conventions in three fourths 

thereof, as the one or the other Mode of Ratification may be 

proposed by the Congress ....

Congress proposed the Pay Amendment to the States in 1789, by a resolution concurred in by two-thirds of both Houses. 1 Stat. 97 (1789). That 

resolution further provided that the Amendment would be valid as part of

85
the Constitution “when ratified by three fourths of the [State] legislatures.” 

Id. As the Amendment was proposed by the requisite majorities of both 

Houses of Congress, and has been ratified by the legislatures of three-fourths 

of the States, it has met all of the requirements for adoption set forth in 

Article V.

Section 106b of title 1, United States Code, provides:

Whenever official notice is received at the National Archives 

and Records Administration that any amendment proposed to 

the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of 

the United States shall forthwith cause the amendment to be 

published, with his certificate, specifying the States by which 

the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the 

Constitution of the United States.

Accordingly, upon the receipt of formal instruments of ratification of the 

Pay Amendment from three-fourths of the States, the Archivist must forthwith cause the Amendment to be published with his certificate specifying 

the States by which it has been adopted, and that the Amendment has become valid, to all intents and purposes, as a part of the Constitution of the 

United States. The effective date of the Amendment is the date on which it 

was ratified by the thirty-eighth State to do so.

TIMOTHY E. FLANIGAN 

Acting Assistant Attorney General

Office of Legal Counsel

86
November 2, 1992

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s i d e n t

You have asked us to memorialize the detailed analysis underlying the 

advice rendered to you earlier this year in connection with the ratification of 

the Congressional Pay Amendment, originally proposed by Congress to the 

States for ratification in 1789. You also asked us to address the question 

whether the Archivist of the United States, upon receipt of formal instruments of ratification from the requisite number of states, was required to 

certify that the Congressional Pay Amendment has become part of the Constitution.1

For the reasons set forth below, we conclude that the Congressional Pay 

Amendment has been ratified pursuant to Article V and is accordingly now 

part of the Constitution, and that the Archivist was required to issue his 

certification to that effect in accordance with 1 U.S.C. § 106b.

I. 

A.

The procedures for amending the Constitution are set forth in Article V:

The Congress, whenever two thirds of both Houses shall deem 

it necessary, shall propose Amendments to this Constitution, 

or, on the Application of the Legislatures of two thirds of the 

several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and 

Purposes, as Part of this Constitution, when ratified by the 

Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode 

of Ratification may be proposed by the Congress.

' We have relied upon the Archivist of the United States for his official tally of the ratifying States. In 

addition to the forty states listed in the Archivist’s certification, see 57 Fed. Reg. 21,187, 21,188 (1992), 

we understand that California ratified the amendment on June 26, 1992, see 138 Cong. Rec. E2237 

(daily ed. July 24, 1992). We set forth in detail the history of the Congressional Pay Amendment’s 

ratification by the States in the accompanying Appendix.

87
The Constitution of the United States: Analysis and Interpretation, S. Doc. 

No. 16, 99th Cong., 1st Sess. 18 (Johnny H. Killion ed., 1987) (“Constitution

Annotated'). Thus, Congress or a convention proposes an amendment, Congress proposes a mode of ratification, and the amendment becomes part of 

the Constitution when ratified by three fourths of the States. The ratification 

of the Congressional Pay Amendment followed this process. Congress proposed the amendment and directed it to state legislatures for ratification. Act 

of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789) (Amendments to the U.S. Constitution). Three fourths of the several States have now ratified it. 57 Fed. Reg. 

21,187, 21,188 (1992); see also Appendix.2 By a straightforward reading of 

Article V, the amendment is now “valid to all Intents and Purposes, as Part of 

th[e] Constitution.”

That the ratification of the Congressional Pay Amendment has stretched 

across more than 200 years is not relevant under the straightforward language of Article V. Article V contains no time limits for ratification. It 

provides simply that amendments “shall be valid to all Intents and Purposes 

. . . when ratified.” Thus the plain language of Article V contains no time 

limit on the ratification process.

Nor are we aware of any other basis in law for adding such time limits to 

the Constitutional amendment process, other than pursuant to the process 

itself. Indeed, an examination of the text and structure of Article V suggests 

that the absence of a time limit is not an accident. The procedure prescribed 

in Article V necessarily implies that some period of time must pass between 

the proposal of an amendment and its final ratification by the requisite number of States.3 This suggests that if a time limit on the process were intended, 

the time limit would be stated in terms. Moreover, Article V does deal with 

a question concerning time limits, and does so quite precisely: no amendment affecting “the first and fourth Clauses in the Ninth Section of the first 

Article” was permitted to be made “prior to the Year One thousand eight 

hundred and eight.” If the Framers had contemplated some terminus of the 

period for ratification of amendments generally, they would have so stated.

The rest of the Constitution strengthens the presumption that when time 

periods are part of a constitutional rule, they are specified. For example, 

representatives are elected every second year, U.S. Const, art. I, § 2, and a 

census must be taken within every ten year period following the first census,

2 The Archivist also informs us that no State has transmitted to the federal government a document 

purporting to rescind a prior ratification. In the early 1800's, the Vermont legislature, which had 

previously ratified the amendment, passed a resolution opposing a later, nearly identical proposal by the 

Kentucky legislature. S ee 1817 Vt. Laws 100-01. There is no evidence, however, that Vermont attempted to rescind its previous ratification. Several states did expressly reject the Congressional Pay 

Amendment when it was first proposed, though only New Hampshire appears to have formally notified 

the federal government of that fact. See 1 D ocumentary H istory o f the First F ederal Congress o f the

U nited S ta tes o f A m erica 348 (Linda Grand DePauw, et. al., eds. 1972) (“ 1 F irst C ongress")’. Appendix 

at pp. A-3 to A-4.

3 See Joseph Story, Com mentaries on the C onstitution o f the U nited Stales § 959, at 681 (1833) (reprinted 1987) (formal requirements of Article V indicate that “[t]ime is thus allowed, and ample time, 

for deliberation, both in proposing and ratifying amendments”) (“C om mentaries").

88
which was required to be taken within three years of the first meeting of 

Congress. Id. Neither House of Congress may adjourn for more than three 

days without the consent of the other, U.S. Const, art. I, § 5, and the President has ten days (Sundays excepted) within which to sign or veto a bill that 

has been presented to him. U.S. Const, art. I, § 7. The Twentieth Amendment refers to certain specific dates, January 3rd and 20th. Again, if the 

Framers had intended there to be a time limit for the ratification process, we 

would expect that they would have so provided in Article V.4

The records of the drafting and ratification of the Constitution contain no 

hint that Article V was intended to contain any implicit time limit. See, e.g.,

Dillon v. Gloss, 256 U.S. 368, 371 (1921). The issue appears not to have 

arisen at the time of the framing, but has since been debated in Congress 

from time to time. Throughout most of those debates, the dominant view 

has been that the Constitution permits the ratification process to proceed for 

an unlimited period of time. The first discussion we have found of the 

question whether a proposed constitutional amendment remains viable indefinitely came in 1869, when Senator Buckalew introduced a measure to 

regulate the time and manner in which state legislatures would consider the 

Fifteenth Amendment. In support of his proposal, he stated that because of 

the confusion created by States that either ratify after rejecting, or reject 

after ratifying, “we are in this condition that you cannot have a constitutional amendment rejected finally at all in the United States; rejections amount 

to nothing, because ratifications at some future time, ten, twenty, fifty, or 

one hundred years hence, may give it validity.” Cong. Globe, 40th Cong., 3d 

Sess. 913 (1869). Senator Bayard, opposing a related proposal, stated his 

belief that “as long as the proposed amendment has neither been adopted by 

three fourths of the States nor rejected by more than one fourth, it stands 

open for . . . action.” Id. at 1312.

The Senate and House debates regarding proposal of the Eighteenth 

Amendment in 1917 also indicate a common belief that Article V contains 

no time limits. For example, in his remarks on the need for limiting time 

for state ratification, Senator Ashurst explained that two of the first twelve 

amendments proposed by Congress “are still pending . . . and have been for 

128 years.” 55 Cong. Rec. 5556 (1917). Senator Borah expressed the view 

that “[t]he fundamental law of the land does say very plainly, that it places 

no limitation upon the time when or within which [an amendment] must be 

ratified. It says ‘when ratified’, and fixes no limit.” Id. at 5649. Senator

4 The Constitution also contains provisions that refer to time but not to a specific period or date. The 

Twelfth Amendment provides that when the House of Representatives must choose the President, it is to 

ballot “immediately” (presumably to prevent intrigue and cabal); the Vice President shall “im m ediately” assume the office of President under certain circumstances, U.S. Const, amend. XXV, § 4; the 

first Senate was “immediately” to divide itself into three classes for purposes of determining when 

terms of office expired, U.S. Const, art. I, § 3, cl. 2; the Sixth Amendment requires that accused persons 

receive a "speedy” trial. The Constitution also requires that certain duties be performed “from time to 

time.” See U.S. Const, art. I, § 5, cl. 3 (publication of journal of Congress); art. I, § 9, cl. 7 (publication 

of statement of accounts); art. II, § 3 (President’s state of the union message). The common theme of all 

these provisions is that when time is part of a constitutional rule, the document so provides.

89
Cummins offered a separate amendment to Article V, stating that “I am in 

favor of supplying what is manifestly a defect in our Constitution and providing some limit of time ...” Id. at 5652. Senator Overman later stated 

that “as the Constitution is now, . . . an amendment . . . can be submitted for 

a thousand years and be in force whenever ratified.” 56 Cong. Rec. 10,098 

(1918). In the House, Representative Reavis objected to any time limit in 

the Constitution. “The amendment is submitted until enough legislatures 

have passed upon it to indicate whether or not it will be approved by threefourths of them.” 56 Cong. Rec. 444 (1917). Representative Steel replied 

that without a time limit, “when a proposed constitutional amendment goes 

out to the States it rests there for agitation for all time without any limitation whatever.” Id. at 445.

Thus, although there was much disagreement on the issue — later addressed in Dillon v. Gloss — whether Congress could impose time limits for 

state ratification of a proposed constitutional amendment in the absence of a 

separate amendment to Article V, there was little doubt as to the rule established by the Constitution itself: the proposed amendment remained viable, 

at least until rejected by more than one-fourth of the States.5

Thus, the text and history of Article V make plain that any argument that 

there is a time limit on the ratification process must be based on some 

ground other than text and history.

B.

1.

Two decisions of the Supreme Court, Dillon, and Coleman v. Miller, 307 

U.S. 433 (1939), have been cited for the propositioft that Article V requires 

that the ratification of constitutional amendments takes place within a “reasonable” time after proposal.6 That doctrine is not within the holding of 

those cases, however, and we believe that any dicta supporting the doctrine 

are unsound.

In upholding Congress’s power to limit to seven years the time for ratification of the Eighteenth Amendment, the Supreme Court in Dillon stated 

“that the fair inference or implication from Article V is that the ratification 

[of an amendment] must be within some reasonable time after the proposal.” 

256 U.S. at 375. If this reasoning is controlling and Article V does contain

3 It is especially telling that so many of those who thought that the Constitution imposed no time limit

on the amendment process thought this feature to be a defect in the document; had they thought the

question a close one, or if any textual argument had been available, they might have resolved it in favor 

of what they took to be the preferable outcome.

6 See, e.g.. E q u a l R ights Amendment E xtension: H earings on S. J. Res. 134 Before the Subcom m. on the

C onstitution o f the Senate Comm, on the Judiciary, 95th Cong., 2d Sess. 117 (1978) (“Senate Hearings”) 

(testimony of Prof. Thomas I. Emerson, Yale University); id. at 144 (testimony of Prof. Jules B. Gerald, 

Washington University); id. at 266 (statement of Prof. Ruth B. Ginsburg, Columbia University).

90
an implicit requirement that proposal and ratification be reasonably contemporaneous, the Congressional Pay Amendment almost certainly would be invalid.7

Although recognizing that Article V “says nothing about the time within 

which ratification may be had,” id. at 371, the Court in Dillon identified 

three grounds for concluding that Article V “strongly suggests” that a proposed amendment may not remain “open to ratification for all time” and that 

ratification in some States may not be “separated frorri that in others by 

many years and yet be effective.” Id. at 374. The Court stated:

First, proposal and 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. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable 

implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but 

the expression of the approbation of the people and is to be 

effective when had in three-fourths of the States, there is a fair 

implication that it must be 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.

Id. at 374-75 (emphases added).8

7 Indeed, the Court in D illon suggested that the period for ratification of the Congressional Pay Amendment, along with that of three other long-dormant proposed amendments, had lapsed:

That [construing Article V to require contemporaneous ratification] is the better conclusion 

becomes even more manifest when what is comprehended in the other view is considered; 

for, according to it, four amendments proposed long ago — two in 1789, one in 1810 and one 

in 1861 — are still pending and in a situation where their ratification in some of the States 

many years since by representatives of generations now largely forgotten may be effectively 

supplemented in enough more States to make three-fourths by representatives of the present 

or some future generation. To that view few would be able to subscribe, and in our opinion it

is quite untenable.

Id. (emphasis added). See also Memorandum from David C. Huckabee, Analyst, and Thomas M. Durbin, 

Legislative Attorney, Congressional Research Service, Library of Congress, Re: The P roposed C ongressional Pay C onstitutional Am endm ent: Issues Pertaining to Ratification, at 2-3 (Aug. 12, 1991) (“CRS 

Memorandum”).

s In support of the notion of contemporaneous consensus, the Court quoted with approval a passage 

from John A. Jameson, A Treatise on C onstitutional C onventions (Da Capo Press 1972) (4th ed. 1887), 

in which Jameson wrote:

The better opinion would seem to be that an alteration of the Constitution proposed to-day 

has relation to the sentiment and the felt needs of to-day, 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.

Id. § 585, at 634, quoted in part in 256 U.S. at 375.

Contrary to the conclusion in D illon, however, Jameson in his treatise had not suggested that his 

"opinion” on the need for contemporaneous ratification was based on any requirement detectable in 

the text of Article V. Rather, he believed that securing this policy goal would require the adoption o f a 

“constitutional statute of limitation" for proposed amendments. Jameson specifically referred to the

Continued

91
In Coleman v. Miller, the Court was presented with a claim by members 

of the Kansas Legislature that the Child Labor Amendment, proposed by 

Congress thirteen years before, “had lost its vitality through lapse of time.” 

307 U.S. at 451. The Court refused to consider the claim. Id. at 452-56 

(opinion of Hughes, C.J., joined by Stone and Reed, JJ.); id. at 456-60 

(Black, 1., joined by Roberts, Frankfurter and Douglas, JJ., concurring). In 

his “opinion for the Court” in Coleman, Chief Justice Hughes observed that 

although the three considerations outlined in Dillon represented “cogent reasons” for concluding in the earlier case that Congress had the power to fix a 

reasonable time limit for ratification, Dillon's discussion of these considerations was merely a dictum. Id. at 452-53. Nevertheless, in determining 

that the issue was “political,” Chief Justice Hughes in dicta adhered to the 

premise of Dillon that Article V may be read as implicitly limiting the time for 

ratification. See id. at 453-54. See also CRS Memorandum at 3; Staff of House 

Comm, on the Judiciary, 85th Cong., 1st Sess.,' Problems Relating to a Federal

Constitutional Convention 44-45 (Comm. Print 1957) (by Cyril F. Brickfield).9

2.

Dillon is not authoritative on the issue whether Article V requires contemporaneous ratification. As Chief Justice Hughes pointed out in Coleman,

307 U.S. at 452-53, the “reasonable time” discussion in Dillon was dictum 

because the issue before the Court was Congress’s authority to limit the 

period for ratification, not a State’s authority to ratify a long-dormant proposed amendment. See 1 Westel W. Willoughby, The Constitutional Law of

the United States 596 n.18 (2d ed. 1929) (“Willoughby”) (“[T]he declaration 

of the court [in Dillon] as to the lapsing of proposed amendments which do

' ( ....continued)

various proposed amendments “floating about" in 1887, including the Congressional Pay Amendment, 

which had shortly before been ratified by Ohio, and he acknowledged that “there is in force in regard to 

them no recognized statute of limitation.” Jameson, supra, § 586, at 635-36. After discussing the 

hypothetical “confusion or conflict" that would result from such open-ended proposals, Jameson concluded with a plea for amending the amendment process:

We discuss this question here merely to emphasize the dangers involved in the Constitution 

a s it stands, and to show the necessity of legislation to make certain those points upon which 

doubts may arise in the employment of the constitutional process for amending the fundamental law o f the nation. A constitutional statute o f limitation, prescribing the time within 

which proposed amendments shall be adopted or be treated as waived, ought by a ll m eans to

be passed.

Id. at 635-36 (emphases added). See a lso Herman V. Ames, The P roposed Am endm ents to the C onstitution o f the U nited States D uring the First C entury o f Its H istory, H.R. Doc. No. 3 5 3 ,54th Cong., 2d Sess., 

pt. 2, at 291-92 & n .l (1897).

’ C hief Justice Hughes wrote that “the question of a reasonable time in many cases would involve . . . an 

appraisal o f a great variety of relevant conditions, political, social and economic.” 307 U.S. at 453. The 

four concurring Justices would have dismissed the case for lack of standing, see id. at 460-70 (opinion of 

Frankfurter, J.), but concurred in the Chief Justice’s conclusion on the broader ground that “Congress has 

sole and complete control over the amending process, subject to no judicial review.” Id. at 459 (Black, J.,

concurring). Justices Butler and McReynolds in dissent found the issue justiciable and concluded that 

under D illon “more than a reasonable time had elapsed” for ratification of the Child Labor Amendment. 

Id. at 473 (Butler. J. dissenting). We discuss C oleman’s political question holding in Part II, infra.

92
not receive ratification by the States within a reasonable period of time was 

obiter, inasmuch as this question was not before the court in the instant 

case.”); see also Brief for the United States Amicus Curiae at 25, Coleman v. 

Miller, 307 U.S. 433 (1939) (No. 38-7) (“It was unnecessary in [Dillon] to 

consider whether a proposed amendment would expire with the passage of 

time in the absence of [a limitation] provision . . . ,”).10

Nor is Coleman authoritative as to contemporaneity. The Coleman Court’s 

discussion of Dillon's “reasonable time” inference was simply not part of its 

holding. Although Chief Justice Hughes’s opinion for three members of the 

Court did approve of the “cogent reasons” for requiring contemporaneity 

outlined in Dillon, see 307 U.S. at 452-53, the four remaining Justices comprising the seven-vote majority on the dispositive “political question” issue 

specifically repudiated Dillon. The four concurring Justices called for “disapproval of the conclusion arrived at in Dillon v. Gloss, that the Constitution 

impliedly require[d] that a properly submitted amendment must die unless 

ratified within a ‘reasonable time.’” Id. at 458 (Black, J., concurring) (footnote omitted).11 Moreover, Chief Justice Hughes’s conclusion does not 

logically imply that Dillon was correct. Having declined to address the 

content of an implicit time limit, it leaves open for Congress the conclusion 

that there is no time limit at all.

3.

On its merits, the reasoning of Dillon is unpersuasive in both its specific arguments and in its broader methodology. The Dillon Court’s first

10 Indeed, some have argued that the entire opinion of the Court in Dillon was a dictum and must be 

considered “dubious” authority at best. See Note, The Process o f C onstitutional A m endm ent, 79 Colum. 

L. Rev. 106, 126 n.75 (1979); Ernst Freund, Legislative Problem s and Solutions, 7 A.B.A. J. 656, 656- 

57 (1921). The challenge to the Eighteenth Amendment in D illon was baseless because the seven-year 

limitation at issue was part of the text of the amendment and was therefore itself ratified by the States; 

the petitioner did not claim that Congress lacked authority to include such a limitation in the amendment itself. Note, 79 Colum. L. Rev. at 126 n.75. See Brief for Appellee at 5, Dillon v. G loss, 256 U.S. 

368 (1921) (No. 20-251) (“The amendment having been ratified by the requisite number of States 

within the time limitation provided in section three, it is unimportant whether that section is valid or 

invalid.”). “[T]he Supreme Court, apparently mistaking the actual facts of the case submitted to it, 

stated and decided the case as though the time limit for ratification had been contained . . . in the Joint 

Resolution of Congress ....” Willoughby, at 596-97.

"W e do not believe that Chief Justice Hughes's opinion must be treated as a holding o f the Court 

because it rested on a “narrower ground” than Justice Black’s. Ordinarily, where an opinion for the 

Court is fragmented, as in Coleman, the opinion of the Justices concurring in the judgm ent on the 

narrowest grounds is regarded as the Court's holding. See M arks v. U nited States, 430 U.S. 188, 193 

(1977); Gregg v. G eorgia, 428 U.S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell and Stevens, JJ.); 

K ing v. Palm er, 950 F.2d 771, 778 (D.C. Cir. 1991) (Silberman, J., concurring), cert, denied, 550 U.S. 

1229 (1992). However, “the narrowest opinion must represent a common denominator o f the Court’s 

reasoning; it must embody a position implicitly approved by at least five Justices who support the 

judgment.” King, 950 F.2d at 781. The “reasonable time” rule thus cannot be considered a holding o f 

C olem an because it was specifically rejected by four/concurring Justices. C oleman “is not a case in 

which the concurrence [here the three-justice Hughesfaction] posits a narrow test to which the plurality 

must necessarily agree as a logical consequence of^its own, broader position.” Id. at 782. “In other 

words, it is not a case in which there is an implicit majority of the court" on the issue whether Article V 

requires reasonably contemporaneous ratification. Id.

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consideration was that proposal and ratification are steps in a single process 

and hence should not be widely separate in time. This argument simply 

assumes its conclusion — that the process is to be short rather than lengthy.

Second, Dillon argued that because amendments are to be proposed only 

when needed, the implication is that they should be dealt with promptly. 

But necessity is not the same as emergency. Thus, Story has written:

The guards [in Article V] against the too hasty exercise of the 

[amendment] power, under temporary discontents or excitements, are apparently sufficient. Two thirds of congress, or of 

the legislatures of the states, must concur in proposing, or 

requiring amendments to be proposed; and three fourths of 

the states must ratify them. Time is thus allowed, and ample 

time, for deliberation, both in proposing and ratifying amendments. They cannot be carried by surprise, or intrigue, or 

artifice. Indeed, years may elapse before a deliberate judgment may be passed upon them, unless some pressing 

emergency calls for instant action. . . .

. . . The mode, both of originating and ratifying amendments 

. . . must necessarily be attended with such obstacles and delays, as must prove a sufficient bar against light or frequent 

innovations.

Commentaries, §§ 959-960, at 681-82. The States that have ratified the 

Congressional Pay Amendment only recently evidently consider it to be just 

as necessary today as the first Congress presumably thought it was in 1789.

Finally, Dillon suggests that Article V is designed to seek consensus, and 

that consensus must be contemporaneous. Again, even assuming that it is 

proper to interpolate terms into a constitutional provision in order to serve 

its purported end — a question we address below — this reasoning is faulty. 

Consensus does not demand contemporaneity. The sort of lasting consensus 

that is particularly suitable for constitutional amendments may just as well 

be served by a process that allows for extended deliberation in the various 

states. There have been occasions when it has taken decades to build the 

consensus within Congress needed for a two-thirds vote on a proposed amendment.12 In the absence of a time limit in the original amendment proposal, it

11 See, e.g.. Senate Hearings, at 134-35 (statement of Professor Thomas I. Emerson) (“History has demonstrated that a long period of time is necessary for the nation to make up its mind with respect to 

fundamental changes .... Thus the W omen’s Suffrage Amendment was under consideration for nearly 

three quarters of a century.”).

94
would appear to be equally true that it may legitimately take many decades 

to build the three-fourths consensus required for the states’ approbation.13

More fundamentally, Dillon rests on a faulty approach to the interpretation of the Constitution, and in particular those provisions that determine the 

structure of government. The amendment procedure, in order to function 

effectively, must provide a clear rule that is capable of mechanical application, without any need to inquire into the timeliness or substantive validity 

of the consensus achieved by means of the ratification process. Accordingly, any interpretation that would introduce confusion must be disfavored. 

As the Supreme Court has explained, the Constitution is designed to provide 

“[e]xplicit and unambiguous provisions” to govern the structure of government. INS v. Chadha, 462 U.S. 919, 945 (1983) (construing the presentment 

and bicameralism provisions of Article I). The very functioning of the government would be clouded if Article V, which governs the fundamental process of 

constitutional change, consisted of “open-ended” principles without fixed applications. The alternative to procedural formalism is uncertainty and litigation.14

As explained above, the terms of Article V provide a clear rule: any 

amendment once proposed “shall be valid to all Intents and Purposes, as part 

of this Constitution, when ratified by the Legislatures of three-fourths of the 

several States.” The reading according to which Article V contains an implicit time limit, by contrast, introduces so much uncertainty as to make the 

ratification process unworkable. The two stages of the amendment process 

are proposal and ratification. The latter is done by states acting through 

legislatures or conventions. In order to be able to carry out its function in 

the ratification process, any state that is contemplating ratification must know 

whether an amendment is in fact pending before it. That is not a matter of 

degree; the proposed amendment is either pending or not.

11 It is conceivable that the goal of consensus, if there is one. could be defeated where the last State to

ratify harbors an entirely different intent or purpose in approving the amendment than did the first

ratifying States or the proposing Congress. Thus, for example, the meaning of the words o f an amendment chosen by the proposing Congress could conceivably change dramatically with the passage of 

time. If there is a substantive consensus requirement beyond the procedural formalities of Article V, 

this hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not 

the case with the Congressional Pay Amendment. The intent and purpose behind this amendment have 

been consistent from its proposal by Madison to its recent ratification. We, therefore, express no opinion on any hypothetical scenario that may present a more fundamental challenge to the notion of consensus. We conclude only that consensus itself does not necessarily require contemporaneity. M oreover, of course, if the absence of a time limit introduces a danger into the Article V amendment process, 

the solution is to specify a time limit, either in the text of the amendment or the proposing resolution.

14 See Walter Dellinger, The L egitim acy o f C onstitutional C hange: Rethinking the A m endm ent Process,

97 Harv. L. Rev. 386,418 (1983) (“Dellinger”): “Attention to th[e] formalities [specified in Article V] is 

more likely to provide clear answers than is a search for the result that best advances an imputed ‘policy’ 

of ‘contemporaneous consensus.’” Professor Dellinger nevertheless maintains that a proposed amendment, like the Congressional Pay Amendment, that languishes for years without action by state legislatures could be considered dead. Id. at 425. Dellinger's “doctrine of desuetude," however, has itself been 

criticized as “an anomolous position" in light of his reliance on the formalities of Article V. John R. Vile, 

Judicial Review o f the A m ending Process: The D ellinger-Tribe D ebate, 3 J.L. & Pol. 21, 33 (1986). S ee

also Laurence H Tribe, A C onstitution We Are Am ending: In D efense o f a Restrained Judicial Role, 97 

Harv. L. Rev. 433, 434 n.6 (1983). In our view, the notion of desuetude is fraught with all of the shortcomings that characterize the "reasonable time” rule of Dillon and must be rejected for the same reasons.

95
According to the theory that Article V contains an implicit time limit, the 

State must deduce that it can ratify only if the time since proposal is still a 

reasonable one. The implicit reasonable time rule can take one of two 

forms. First, the Constitution might be said to impose the same time period 

with respect to all proposed amendments. Putting aside the implausibility 

of the suggestion that a legal rule includes a time certain without stating it, 

this reading would require each state somehow to decide for itself what 

limitation the Constitution implicitly imposes. This question is extremely 

difficult, and there is no reason to believe that the different States would 

answer it in the same way.15 In fact, the long history of congressional 

treatment of time limits demonstrates that there is no agreement as to what 

period of time would be reasonable.16

The other possible form of the implicit time limit rule is that the “reasonable” time differs from amendment to amendment, depending on any number 

of unstated factors. This theory requires that the States undertake an inquiry 

even more difficult than the search for an implicit but specific time limit. 

To take an example, this approach may suggest that the merits of a proposal 

may affect the question whether it is still pending, because one approach to 

judging the reasonableness of the period of ratification is to ask if the problem the amendment was designed to address is still pressing — a question 

that is inseparable from the substance of the amendment. However the 

question of reasonableness is to be answered, it is plain that answering it 

can be extremely difficult, and that expecting all the States to answer it in 

the same way is unreasonable.

The implicit time limit theory thus imposes an impossibly burdensome 

requirement on ratifying States — that they discern the implicit limitation 

and, if the system is to work smoothly, that they all discern the same one. 

Most discussions of the implicit time limit obscure this difficulty by shifting 

attention away from the situation of the States. For instance, Chief Justice 

Hughes’s opinion in Coleman indicates that the reasonableness of the period 

that has passed since proposal is for Congress to decide at the time of 

promulgation. See 307 U.S. at 454. Congress’s decision at the end of the

15 The compelling need for regularity and certainty in the amendment procedure is exactly what prompted 

Congress to include a time limit in the Eighteenth Amendment, which led the Court in D illon to consider the question”[w]hether a definite period for ratification shall be fixed so that all may know what it 

is a n d speculation on w hat is a reasonable tim e m ay be avoided." 256 U.S. at 376 (emphases added).

“ W hat seems to have been the first attempt to impose a time limit on the States occurred during congressional consideration o f the Fourteenth Amendment, when Senator Buckalew proposed an amendment to the joint resolution that would have required ratification within three years. Cong. Globe, 39th 

Cong., 1st Sess. 2771 (1866). In 1917, during debates on the Eighteenth Amendment, Senator Ashurst 

stated that he could support a time limit of “ 10, 12, 14, 16, 18, or even 20 years.” 55 Cong. Rec. 5557 

(1917). Senator Harding proposed an amendment to the joint resolution that would have limited states' 

consideration to a period of six years. Senator Cummins offered a substitute amendment that would 

have amended Article V to require state ratification of all amendments proposed after January 1, 1917, 

to eig h t years, expressing the view that what is a “reasonable” period for ratification might differ in 

each case. 55 Cong. Rec. 5652 (1917). During debate on the Child Labor Amendment in 1924, Representative Linthicum and Senator Fletcher offered amendments that would have required ratification 

within fiv e y ea rs of proposal. 65 Cong. Rec. 7288, 10,141 (1924).

96
process, however, can be of no use to States while that process is going on. 

According to Chief Justice Hughes’s approach, the States must make decisions concerning constitutional amendments without knowing whether those 

decisions matter until they leam from Congress at some later date, if ever.17 

The implicit time limit thesis is thus deeply implausible, because it introduces hopeless uncertainty into that part of the Constitution that must function 

with a maximum of formal clarity if it is to function.

In sum, the dictum of Dillon and the view of Chief Justice Hughes’s 

plurality in Coleman are not authoritative nor are they persuasive. Article V 

contains no time limit not stated in its text. The Congressional Pay Amendment 

— rather, the Twenty-Seventh Amendment — although well aged, is not stale.18

II.

You have also asked whether, under 1 U.S.C. § 106b, the Archivist was 

required to publish the Congressional Pay Amendment along with his certificate specifying that the Amendment has become valid, to all intents and 

purposes, as part of the Constitution. We believe that he was required to do so.

A.

Section 106b provides:

Whenever official notice is received at the National Archives 

and Records Administration that any amendment proposed to 

the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of 

the United States shall forthwith cause the amendment to be 

published, with his certificate, specifying the States by which 

the same may have been adopted, and that the same has become valid,, to all intents and purposes, as a part of the 

Constitution of the United States.

17 See Note, C ritical D etails: A m ending the U nited States C onstitution, 16 Harv. J. on Legis. 763, 767 

(1979) (“Although Coleman did spell out some guidelines, the state legislatures would still only speculate about what amount of time Congress would conclude was reasonable. Only some direct signal from 

Congress before or during ratification would definitely prescribe the time for action in the states.”). See

also 2 David K. Watson, The Constitution o f the U nited States 1311-12 (1910) (“Who but the state can 

judge of what would be a reasonable time? It is for the state to ratify and cannot the state take its own 

time to do it?”), quoted in Case N ote, 24 Minn. L. Rev. 393, 394 n.9 (1940).

"Several other amendments to the Constitution have been proposed to the States without time limits 

and have never received the approval of three-fourths of the States. See C onstitution A nnotated, at 51- 

53. A resolution was introduced in the Senate purporting to declare that those proposals have "expired,” but it was not passed. See S. Con. Res. 121, 102d Cong., 2d Sess. (1992); 138 Cong. Rec. 

S6839, S6908 (daily ed. May 19, 1992). But see 138 Cong Rec. S6949 (daily ed. May 2, 1992) (Senator Sanford asserting that “today the Senate also decided to declare that four other proposed and pending amendments .. . were to be considered to have lapsed”). This opinion does not address the current 

vitality of any of those amendments. We note, however, that the status of the amendment proposed in 

1861 providing that “[n]o amendment shall be made to the Constitution which will authorize or give 

Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, 

including that of persons held to labor or service by the laws of said State,” C onstitution A n n o ta ted at 

52, may be determined by the subsequent adoption of the Thirteenth Amendment.

97
1 U.S.C. § 106b. The statutory directive is clear. First, the Archivist must 

determine whether, as a matter of law, he has received “official notice” of an 

amendment’s adoption “according to the provisions of the Constitution.” Id.

If he determines that he has received such notice, he must publish the amendment with a certificate specifying, inter alia, that the amendment “has become 

valid, to all intents and purposes, as a part of the Constitution.” Id. The 

statute allows the Archivist no discretion in this regard.

Congress has required the executive branch to certify the validity of constitutional amendments since 1818. In that year, Congress established a 

statutory mechanism for the publication of constitutional amendments as 

part of a general provision “for the publication of the laws”:

[W]henever official notice shall have been received, at the 

Department of State, that any amendment which heretofore 

has been, or hereafter may be, proposed to the constitution of 

the United States, has been adopted, according to the provisions of the constitution, it shall be the duty of the said 

Secretary of State forthwith to cause the said amendment to 

be published in the . . . newspapers authorized to promulgate 

the laws, with his certificate, specifying the states by which 

the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the 

constitution of the United States.

Act of Apr. 20, 1818, ch. 80, § 2, 3 Stat. 439. Over time, Congress deleted 

the reference to newspapers and transferred the duty of publication from the 

Secretary of State, first to the Administrator of General Services, see Act of 

Oct. 31, 1951, ch. 655, § 2(b), 65 Stat. 710 (1951); Reo'rg. Plan No. 20 of 

1950, § 1(c), 64 Stat. 1272, and then to the Archivist, see National Archives 

and Records Administration Act of 1984, Pub. L. No. 98-497, § 107, 98 Stat. 

2280, 2291 (1984). The substance of the statutory directive, however, has 

remained the same.

Section 106b and its antecedents have long been understood as imposing a 

ministerial, “record-keeping” duty upon the executive branch. See 96 Cong. 

Rec. 3250 (Message from President Truman accompanying Reorg. Plan No. 

20 of 1950); Judith L. Elder, Article V, Justiciability, and the Equal Rights

Amendment, 31 Okla. L. Rev. 63, 75-76 (1978). The Archivist may not 

refuse to certify a valid amendment. See United States ex rel. Widenmann v.

Colby, 265 F. 998, 999 (D.C. Cir. 1920) (no discretion to refuse publication 

once official notice received, as publication is merely “ministerial act”), aff’d

mem. sub. nom. U.S. ex rel. Widenmann v. Hughes, 257 U.S. 619 (1921); 

United States v. Sitka, 666 F. Supp. 19, 22 (D. Conn. 1987), aff'd, 845 F.2d

98
43 (2d Cir.), cert, denied, 488 U.S. 827 (1988).19 Nonetheless, section 106b 

clearly requires that, before performing this ministerial function, the Archivist must determine whether he has received “official notice” that an 

amendment has been adopted “according to the provisions of the Constitution.” This is a question of law that the Archivist may properly submit to 

the Attorney General for resolution. See 28 U.S.C. § 511 (“The Attorney 

General shall give his advice and opinion on questions of law when required 

by the President.”).20

B.

As we concluded above, the Congressional Pay Amendment has been 

adopted in accordance with the Constitution. The only obstacle to the 

Archivist’s promulgation of the amendment would be the thesis, advanced 

by some commentators, that under Coleman v. Miller, 307 U.S. 433 (1939), 

Congress alone among the branches may determine whether an amendment 

has been constitutionally adopted. Under this theory, the Archivist must 

wait for a determination of the matter by Congress or, at most, issue a 

“conditional certification” of an amendment in deference to possible congressional action. We believe that Coleman is not authority for this theory, 

and that congressional promulgation is neither required by Article V nor 

consistent with constitutional practice. As a consequence, we believe that 

the Archivist was not required to wait for a congressional promulgation to 

certify the Congressional Pay Amendment as valid.

1.

In Coleman, the Court considered the validity of the ratification by Kansas of the Child Labor Amendment, proposed by Congress in 1924. 307 

U.S. at 435-36. Members of the Kansas Legislature had brought a state-court 

action alleging that the Kansas ratification had been invalid because, inter alia, 

the State Legislature had ratified the amendment some thirteen years after Congress had proposed it. Congress had not imposed a time-limit on ratification

‘’ Indeed, there is authority for the proposition that the Archivist’s Certificate is not necessary to an 

amendment's validity. The text of Article V contains no such requirement. See also D illon v. G lo ss, 

256 U.S. 368, 376 (1921) (Eighteenth Amendment became valid on the date it received its final ratification; the date of publication was “not material, for the date of [an amendment's] consummation, and 

not that on which it is proclaimed, controls.”).

20 Others have recognized the Attorney General's role in resolving such legal questions. Concerning 

the validity of ratifications of the Equal Rights Amendment, Professor Dellinger questioned why the 

Administrator of General Services, at that time the official responsible for certifying new amendments, 

would submit the question to Congress: "An administrator uncertain about the lawful exercise of one of 

her responsibilities is normally expected to refer the question to the Attorney General for an opinion 

and then act in accordance with that opinion.” 97 Harv. L. Rev. at 402. That was exactly what the 

administrator at the time intended to do. Asked what would be done if the requisite number of states 

had ratified but some States had purported to rescind their ratifications, the Deputy Archivist stated that 

“we would call upon the Attorney General to determine the answer to the legal question on rescission.” 

Senate Hearings, at 109 (testimony of James E. O’Neill).

99
when it had proposed the amendment to the States. The Supreme Court of 

Kansas held that the amendment remained susceptible to adoption despite 

the thirteen-year delay, and dismissed the suit. Id. at 437.

The Supreme Court of the United States reversed. There was no majority 

opinion on the validity of the Kansas ratification. Three Justices — Chief 

Justice Hughes, Justice Stone, and Justice Reed — determined that the question whether Kansas had ratified within a “reasonable time” was a 

nonjusticiable political question. Chief Justice Hughes asserted that the 

resolution of such a question would depend on social, political, and economic conditions that courts were incompetent to address. Id. at 453-54. 

“On the other hand,” he reasoned, “these conditions [were] appropriate for 

the consideration of the political departments of the Government.” Id. at 

454. The Hughes opinion concluded that the question whether an amendment had lapsed should “be regarded as an open one for the consideration of 

the Congress when, in the presence of certified ratifications by three-fourths 

of the States, the time arrives for the promulgation of the adoption of the 

amendment.” Id.

Four Justices — Justice Black, joined by Justices Roberts, Frankfurter, 

and Douglas — went even further. They disclaimed any judicial review of a 

congressional determination as to the adoption of an amendment. 

“[Undivided control of [the amendment] process had been given by [Article 

V] exclusively and completely to Congress,” Justice Black wrote. Id. at 

459 (Black, J., concurring). “Therefore, any judicial expression amounting 

to more than mere acknowledgement of exclusive Congressional power over 

the political process of amendment is a mere admonition to the Congress in 

the nature of an advisory opinion, given wholly without constitutional authority.” Id. at 459-60. Two Justices — Justices Butler and McReynolds — 

dissented on the ground that the amendment was invalid because of the 

thirteen-year delay. Id. at 473-74 (Butler, J., dissenting).

Neither Chief Justice Hughes nor Justice Black explained the constitutional basis for the assertion that Congress had authority to “promulgate” an 

amendment. Rather, Chief Justice Hughes relied on the “special circumstances” surrounding the adoption of the Fourteenth Amendment in 1868. 

Id. at 449-50.21 At that time, as we have seen, the duty of publication of 

constitutional amendments rested with the Secretary of State. Because of 

irregularities in the ratifications of Ohio and New Jersey — the legislatures 

of both States had attempted to rescind their earlier votes to approve the 

amendment — Secretary Seward issued a “conditional certification” of the 

Fourteenth Amendment on July 20, 1868. Proclamation No. 11, 15 Stat. 706 

(1868). Secretary Seward certified that if the resolutions of Ohio and New 

Jersey were still effectual, notwithstanding the subsequent attempts to rescind, “then the . . . amendment . . . ha[d] become valid, to all intents and

31 Justice Black provided no support for his assertion.

100
purposes, as a part of the Constitution.” Id. at 707. Secretary Seward disclaimed any authority to resolve the matter himself. Id.

The next day, Congress passed a concurrent resolution declaring the Fourteenth Amendment to be a part of the Constitution and directing Secretary 

Seward to promulgate it as such. Cong. Globe, 40th Cong., 2d Sess. 4266, 

4295-96 (1868). The Senate passed the resolution without any debate, id. at 

4266, and in the House the only question was whether Georgia, of whose 

ratification the Speaker had received notice by telegraph, should be included 

on the list of ratifying States. Id. at 4295-96. One week later, on July 28, 

1868, Secretary Seward issued a second proclamation, “in execution o f’ the 

concurrent resolution and “in conformance thereto,” certifying the Fourteenth 

Amendment as valid. Proclamation No. 13, 15 Stat. 710 (1868).

“Thus,” observed Chief Justice Hughes, in the case of the Fourteenth 

Amendment “the political departments of the Government dealt” with questions concerning the ratification of the amendment. Coleman, 307 U.S. at 

449. He apparently used the events surrounding the adoption of the Fourteenth Amendment as a model and simply assumed that, if and when the 

issue arose with respect to the Child Labor Amendment, the same procedures would obtain. See id. at 454 (“The [eventual] decision by the Congress, 

in its control of the action of the Secretary of State, of the question whether 

the [Child Labor Amendment] had been adopted within a reasonable time 

would not be subject to review by the courts.”). The plurality opinion did 

not address the question whether, in the event the Secretary of State decided 

to certify the amendment on his own, congressional promulgation would 

still be necessary. Indeed, given the posture of the case, the Justices could 

not have addressed that question: the Child Labor Amendment was nowhere 

near ratification, and circumstances had not required the Secretary to make 

any decision regarding the validity of the amendment.22

Chief Justice Hughes’s opinion is thus best understood as resting on a 

political question rationale: courts will not attempt to resolve certain questions concerning the validity of states’ ratifications of constitutional 

amendments. Rather, the decision of the political branches will control. To 

read the Hughes opinion as addressing the relationship between the political 

branches and requiring the Executive to defer to Congress on the adoption 

of an amendment would be to resolve an issue that was not before the 

Coleman Court. As it was, the Coleman dissenters took their brethren to 

task for even addressing the role of Congress in the amendment process. 

The Court had not heard argument on that point, they protested; Congress’s 

role had not been “raised by the parties or by the United States appearing as 

amicus c u r i a e 307 U.S. at 474 (Butler, J., dissenting). At most, Coleman

stands for the proposition that the validity of a constitutional amendment is

“ The Hughes opinion endorsed the Court’s earlier holding in L eser v. G am eit, 258 U.S. 130, 137 

(1922), that the Secretary would be bound by official notice from a state respecting its ratification. See

C olem an, 307 U.S. at 451.

101
a political question. That proposition has no bearing on the actions of the 

Archivist, an officer of one of the political branches.23

2.

On its merits, the notion of congressional promulgation is inconsistent 

with both the text of Article V of the Constitution and with the bulk of past 

practice.24 Article V clearly delimits Congress’s role in the amendment process. It authorizes Congress to propose amendments and specify their mode 

of ratification, and requires Congress, on the application of the legislatures 

of two-thirds of the States, to call a convention for the proposing of amendments. Nothing in Article V suggests that Congress has any further role. 

Indeed, the language of Article V strongly suggests the opposite: it provides 

that, once proposed, amendments “shall be valid to all Intents and Purposes, 

as Part of this Constitution, when ratified by” three-fourths of the States. 

(Emphasis added.) As Professor Dellinger has written, the Constitution “requires no additional action by Congress or by anyone else after ratification 

by the final state.” 97 Harv. L. Rev. at 398. To interpret Article V “as 

requiring or permitting” a further step of congressional promulgation is, in 

the words of another scholar, “no more defensible than to find a third house 

of Congress hidden cleverly in the interstices of the constitutional language 

vesting all legislative power in a House and a Senate.” Rees supra, at 899.

23 We have discussed Chief Justice Hughes’s opinion because it is the only part of C oleman other than 

the judgm ent that might be considered authoritative. If the views of the majority Justices had any 

common ground. C hief Justice Hughes's occupied the narrowest portion of that ground: Justice Black's 

disclaim er of any judicial inquiry is broader than the Chief Justice’s approach. Scholars doubt whether 

C olem an has authority even as a political question decision. Grover Rees III, Throw ing Aw ay the Key:

The U nconstitutionality o f the Equal R ights Am endm ent E xtension, 58 Tex. L. Rev. 875, 887-88 (1980) 

(“Rees”); Dellinger, at 388 n.8. See also A F L-C IO v. M arch Fong Eu, 686 P.2d 609, 616 (Cal. 1984) 

Indeed, C hief Justice Rehnquist has questioned whether C olem an's analysis still obtains in the context 

o f Article V. S ee U hlerv. AFL-C IO , 468 U.S. 1310(1984) (Rehnquist, Circuit Justice); but cf. G oldw ater

v. C arter, 444 U.S. 996, 1002 (1979) (Rehnquist, J„ concurring) (relying on C oleman to conclude that 

President’s power to denounce a treaty was a nonjusticiable political question).

24In 1977, this Office stated that Congress could by concurrent resolution extend the time-limit for 

ratification of the Equal Rights Amendment. See Memorandum for Robert J. Lipshutz, Counsel to the 

President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel (Oct. 31, 1977) 

(“O ctober Memorandum"). See also E xtending the Ratification P eriod fo r the P roposed Equal Rights

A m en d m en t: H earings on H.J. Res. 638 B efore the Subcom m. on C ivil an d C onstitutional R ights o f the

H ouse C om m , on the Judiciary, 95th Cong., 1st Sess. 5-7 (1977) (statement of John M. Harmon, Assistant Attorney General, Office of Legal Counsel); Senate Hearings, supra, note 6. Relying on C olem an,

this Office further concluded that Congress has the exclusive power to determine whether an amendm ent has been timely adopted. See October Memorandum at 17, 20-21, 43. See also Pow er o f a State

Leg isla tu re to R escin d its Ratification o f a C onstitutional Am endm ent, 1 Op. O.L.C. 13 (1977). In an 

aside, we specifically referred to the Congressional Pay Amendment and noted our view that if and 

when the thirty-eighth ratification was received, Congress would have the duty to decide whether too 

much tim e had passed for the Amendment to be viable. See October Memorandum at 21 & n.26; see

a lso id. at 35 n.43 (Congress may determine whether an amendment has been adopted by concurrent 

resolution). Those opinions arose in a factual setting quite different from the instant case. The 

“reproposal” of a constitutional amendment may be an exclusively congressional function in a way that 

the certification o f a ratified amendment is not. See H ollingsw orth v. Virginia, 3 U.S. 378 (1798) 

(thought to stand for the proposition that the President’s signature is not needed for proposal of an 

amendment). To the extent that our earlier opinions suggest that Congress alone must make the determ ination of the adoption of a constitutional amendment, we reject them today.

102
In light of the overall structure of the Constitution, it would be surprising 

if Article V did confer such exclusive power on Congress. The fundamental 

features of the American constitutional system - federalism and separation 

of powers — produce a division of power designed to ensure that the people, 

rather than any organ of the government, are sovereign. As Attorney General Edward Bates explained in 1861, the Framers of the Constitution rejected 

the notion that “Parliament is omnipotent.” See 10 Op. Att’y Gen. 74, 75 

(1861). Instead, the federal government “is not vested with the sovereignty, 

and does not possess all the powers of the nation. It has no powers but such 

as are granted by the Constitution.” Id. at 77. The same principle undergirds 

the separation of powers: the three branches of the federal government “are 

co-ordinate and coequal — that is, neither being sovereign, each is independent in its sphere, and not subordinate to the others.” Id. at 76. To give one 

branch of government ultimate control over the Constitution’s very content 

would be to repudiate the American approach in favor of a return to parliamentary supremacy. Article V, however, shows that the Constitution is 

consistent in its rejection of governmental sovereignty.

The drafting history of Article V reaffirms this conclusion. The Federal 

Convention designed the amendment system so that both Congress and the 

states played important roles. At the convention, the Framers manifested a 

marked distrust of Congress in the amendment process. An early outline of 

the Constitution specified that the Constitution could be amended “without 

requiring the assent of the Natl. Legislature.” 1 Records Federal Convention

of 1787 121 (Max Farrand, ed., revised ed. 1966). In supporting that provision, George Mason argued: “It would be improper to require the consent of 

the Natl. Legislature, because they may abuse their power, and refuse their 

consent on that very account.” Id. at 203.25 Mason reaffirmed his concern 

in the final days of the convention and argued that Article V gave Congress 

too much power and ability to abuse the process. 2 Records o f the Federal

Convention of 1787 629 (Max Farrand, ed., revised ed. 1966). Article V was 

specifically altered by the convention to accommodate Mason’s concern. Id.

Commentary during the ratification debates bears out the Framers’ intention to check the power of Congress in the amendment process. Madison 

explained in Federalist No. 39 that the amendment system balanced the 

States and the federal government, so that the system is “neither wholly 

federal, nor wholly national.” The Federalist No. 39, at 257 (James Madison) 

(Jacob E. Cooke ed., 1961). In discussing the provisions for calling a convention upon the petition of two-thirds of the States, Alexander Hamilton states:

[The amendments so proposed] “shall be valid to all intents 

and purposes, as part of the constitution, when ratified by the 

legislatures of three-fourths of the states, or by conventions in

“ The Congressional Pay Amendment, dealing as it does with the power of members of Congress to 

increase their salaries, is just the sort of amendment to which Mason’s comment would apply most 

readily.

103
three-fourths thereof.” The words of this article are peremptory. The congress “shall call a convention.” Nothing in this 

particular is left to the discretion of that body [Congress].

The Federalist No. 85, at 593 (Alexander Hamilton) (Jacob E. Cooke, ed., 

1961). These words are equally applicable to ratification of an amendment 

by three-fourths of the States. Discussing Article V more generally, Hamilton 

concluded by observing that “[w]e may safely rely on the disposition of the 

state legislatures to erect barriers against the encroachments of the national 

authority.” Id. These statements are inconsistent with the notion that Congress has a general power of superintendence over the amendment process.

Congressional promulgation is also at odds with the bulk of past practice 

in this area. As we have seen, Chief Justice Hughes in Coleman used the 

“special circumstances” surrounding the adoption of the Fourteenth Amendment as a model for the only instance of congressional involvement in the 

promulgation of an amendment following ratification in more than two hundred years. See, e.g., Dellinger, at 400. There has never been another 

“conditional certification” of an amendment by the executive branch.26 The 

concurrent resolution “promulgating” the Fourteenth Amendment, adopted 

with no substantive debate, was unnecessary and an aberration.

The events surrounding the adoption of the Fifteenth Amendment two 

years later demonstrate that fact.27 Irregularities in State ratifications also 

plagued this Amendment — New York had attempted to rescind its ratification, see Cong. Globe, 41st Cong., 2d Sess. 1444 (1870), and two other 

States, Ohio and Georgia, ratified the amendment only after having rejected 

it once, see Memorandum to Don W. Wilson, Archivist of the United States, 

from Martha L. Girard, Director of the Federal Register 6 (May 22, 1991).

26 See Letter to Governors of the Several States from Thomas Jefferson, Secretary of State (March 1, 

1792), reprinted in 2 The Bill o f Rights: A D ocum entary H istory 1203 (Bernard Schwartz, ed., 1971) 

(First through Tenth Amendments); President John Adams, Message to Congress, 7 Annals of Cong. 

809 (1798) (Eleventh Amendment); Letter to Governors of the Several States from James Madison, 

Secretary of State (Sept. 25, 1804) (Twelfth Amendment), cited in C onstitution Annotated, at 28 n.4; 

Certification by William H. Seward, Secretary of State, 13 Stat. 774 (1865) (Thirteenth Amendment); 

Certification of Hamilton Fish, Secretary of State, 16 Stat. 1131-32 (1870) (Fifteenth Amendment); 

Certification by Philander C. Knox, Secretary of State, Act of Feb. 25, 1913, 37 Stat. 1785 (1913) 

(Sixteenth Amendment); Certification by William Jennings Bryan, Secretary of State, Act of May 31, 

1913,38 Stat. 2049 (1913) (Seventeenth Amendment); Certification by Frank L. Polk, Acting Secretary 

o f State, Act of Jan. 28, 1919, 40 Stat., “Eighteenth Amendment to the Constitution” 1 (1919); Certification by Bainbridge Colby, Secretary o f State, Act of Aug. 26, 1920, 41 Stat. 1823 (1920) (Nineteenth 

Amendment); Certification by Henry L. Stimson, Secretary of State, Act of Feb. 6, 1933,47 Stat. 2569 

(1933) (Twentieth Amendment); Certification by William Phillips, Acting Secretary of State, Act of 

Dec. 5, 1933, 48 Stat. 1749 (1933) (Twenty-First Amendment); Certification by Jess Larson, Administrator o f General Services, 16 Fed. Reg. 2019 (1951) (Twenty-Second Amendment); Certification by 

John L. Moore, Administrator of General Services, 26 Fed. Reg. 2808 (1961) (Twenty-Third Amendment); Certification by Bernard L. Boutin, Administrator of General Services, 29 Fed. Reg. 1715(1964) 

(Twenty-Fourth Amendment); Certification by Lawson B. Knott, Administrator of General Services, 32 

Fed. Reg. 3287 (1967) Twenty-Fifth Amendment), Certification by Robert L. Kunzig, Administrator of 

General Services, 36 Fed Reg. 12,725 (1 9 7 1) (Twenty-Sixth Amendment).

11 Chief Justice Hughes in Coleman briefly noted the events surrounding the ratification of the Fifteenth 

Amendment, but did not assign them any weight in this analysis. S e e 307 U.S. at 450 n.25.

104
On February 21, 1870, Senator Williams introduced a joint resolution declaring that the Amendment had become valid as part of the Constitution. Cong. 

Globe, 41st Cong., 2d Sess. 1444 (1870). Shortly thereafter, the Senate 

passed a different resolution requesting that the Secretary of State inform the 

Senate which States had ratified the Amendment. Id. at 1653.

On March 30, 1870, Secretary of State Hamilton Fish issued a proclamation certifying that the Fifteenth Amendment had become valid. The 

proclamation noted the attempted rescission by New York, but did not mention the questions regarding the Ohio and Georgia ratifications. 16 Stat. 

1131 (1870). The Senate took no action in response to the proclamation, 

and Senator Williams allowed his earlier resolution to die. Cong. Globe, 

41st Cong., 2d Sess. 3142 (1870). There was some debate in the House 

concerning the validity of the New York and Indiana ratifications, id. at 

2298, but ultimately the House passed a resolution declaring that the Amendment had become a binding part of the Constitution. Id. at 5441.28 At no 

time during the consideration of the Fifteenth Amendment did anyone in 

Congress suggest that congressional promulgation was essential to its validity. As the Fifteenth Amendment was adopted only two years after the 

Fourteenth, the absence of such a suggestion demonstrates that the congressional promulgation of the Fourteenth Amendment was merely an aberration.

If congressional promulgation is required, Secretary Fish illegally certified that the Fifteenth Amendment was part of the Constitution.29 Indeed, 

the executive branch would have illegally certified every amendment except 

the Fourteenth.30 If only to avoid this absurd conclusion, we must reject the 

assertion that only Congress may promulgate an amendment.

III.

We conclude that the Congressional Pay Amendment has been validly 

ratified pursuant to the procedures set forth in Article V, and that the Archivist of the United States was required to promulgate the Twenty-Seventh 

Amendment pursuant to 1 U.S.C. § 106b.

TIMOTHY E. FLANIGAN 

Acting Assistant Attorney General

Office of Legal Counsel

“ The House Resolution also confirmed the validity of the Fourteenth Amendment. Cong. Globe, 41st 

Cong., 2d Sess. 5441 (1870).

29 The experience of the Fifteenth Amendment also refutes a modified version of Justice Black’s thesis, 

under which congressional certification would be required in doubtful cases. The status of the Fifteenth 

Amendment was as doubtful as that of the Fourteenth, and for the same reasons.

30 O f course, the certifications would nevertheless be binding on the courts. See Leser v. G arnett, 258 

U.S. 130 (1922); U nited States v. Thomas, 788 F.2d 1250, 1253 (7th Cir.) (Easterbrook, J.), cert, d e ­

nied. 479 U.S. 853 (1986), cf. Field v. Clark, 143 U.S. 649, 669 (1892).

105
APPENDIX

The Congressional Pay Amendment had its beginnings in the ratification 

conventions of States considering the original Constitution. Several States 

proposed amendments when they ratified the Constitution. Two of these, 

Virginia and New York, included a precedent to the Congressional Pay Amendment. 2 The Bill o f Rights: A Documentary History 844, 916 (Bernard 

Schwartz, ed., 1971) (“Schwartz”).1 North Carolina proposed amendments 

on August 2, 1788, without at first ratifying the Constitution. Id. at 966, 

977. Among the amendments it proposed was a congressional pay provision 

taken almost verbatim from Virginia’s. See id. at 970-71. Representative 

James Madison included Virginia’s proposal in the resolution of amendments he proposed to the House on June 8, 1789. 4 Documentary History of

the First Federal Congress of the United States o f America 9, 10 (Charlene 

Bangs Bickford and Helen E. Veit, eds., 1986) (“4 First Congress"). On the 

motion of Elbridge Gerry, the proposed amendments of several States, including New York’s congressional pay proposal, were also put before the 

House. Id. at 4, 19, 24.

There was relatively little debate on the proposed Congressional Pay 

Amendment in Congress. Madison forecast that Congress’s power over the 

compensation of its members was unlikely to be abused, but nevertheless 

pointed out the impropriety of giving members the power “to put their hand 

into the public coffers, to take out money to put in their pockets.” 1 Annals 

of Cong. 457 (Gales & Seaton eds., 1789). Congressman John Vining later 

echoed this sentiment: “There was, to say the least of it, a disagreeable 

sensation, occasioned by leaving it in the breast of any man to set a value on 

his own work.” Id. at 756-57. Another Congressman, however, thought that 

“much inconvenience and but very little good would result” from the amendment. Id. at 756 (statement of Theodore Sedgwick).

Congress approved the proposal of twelve amendments to the Constitution on September 25, 1789. The Congressional Pay Amendment was 

approved with only a minor change in wording made in the Senate. See 4 

First Congress, at 44-46. As sent to the states for ratification, it read:

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

Representatives shall have intervened.

‘ Virginia ratified the Constitution on June 25, 1788, after narrowly defeating a motion to propose 

am endm ents prior to ratification. See Schwartz, at 834-39. TWo days later, the convention proposed 

am endm ents, including: “That the laws ascertaining the compensation of senators and representatives 

for their services, be postponed, in their operation, until after the election of representatives immediately succeeding the passing thereof; that excepted which shall first be passed on the subject." Id. at 

844. New York ratified the Constitution and proposed amendments on July 26, 1788. Among its 

proposed amendments was “That the Compensation for the Senators and Representatives be ascertained by standing Laws; and that no alteration of the existing rate of Compensation shall operate for 

the Benefit of the Representatives, until after a subsequent Election shall have been had." Id. at 916.

106
1 Documentary History of the First Federal Congress o f the United States of

America 208 (Linda Grant De Pauw, et al., eds., 1972) (“1 First Congress")

(reproducing entry from Appendix to Senate Legislative Journal, 1st Cong., 

1st Sess.). Cf Act of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789). The proposed amendments were transmitted to the eleven States that had ratified the 

Constitution, as well as to North Carolina and Rhode Island. See 4 First

Congress, at 9, 48.

When the amendments were proposed, nine States constituted the threefourths necessary for ratification of the amendments. Before any States had 

acted on the amendments, North Carolina ratified the Constitution; nine States 

still constituted three-fourths. The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties xxi (Patrick T. Conley 

and John P Kaminski, eds., 1992) (“Bill of Rights and the States”). The 

Congressional Pay Amendment had been ratified by only four States before 

Rhode Island ratified the Constitution on May 29, 1790, bringing the number of States in the Union to 13, three-fourths of which was ten. Before any 

more States ratified the amendment, Vermont joined the Union, bringing the 

total to 14, three-fourths of which was eleven. Regardless of the time at 

which the “three-fourths” requirement was determined, however, the Congressional Pay Amendment was never close to that total in its initial period. 

It received only two more ratifications in 1791, for a total of six.2

Thomas Jefferson, as Secretary of State under George Washington, was 

responsible for monitoring the States’ actions on the proposed amendments. 

Id. at xxii. His tally shows that of the thirteen original States and Vermont, 

six ratified the amendment. Id. at xxiii (photographic reproduction of 

Jefferson’s tally). Five States rejected the amendment, three of them “silently,” meaning that the ratification documents made no reference to the 

Congressional Pay Amendment. Id. at xxii-xxiii. The other three States did 

not respond: Massachusetts, Connecticut, and Georgia. Id.

The six States that ratified the Congressional Pay Amendment along with 

what is now the Bill of Rights are:

o M aryland. D ecem ber 19, 1789. 1 F irst C ongress, at 349-50 (reproducing entry in 

Senate Journal o f June 14, 1790). 

o N orth Carolina, December 22, 1789. 1 F irst C ongress, at 346-47 (reproducing 

entry in Senate Journal of June 11, 1790). 

o South Carolina, January 28, 1790, 1 F irst C ongress, at 275-76 (reproducing entry 

in Senate Journal of April 3, 1790). 

o Delaware, January 28, 1790, 1 F irst C ongress, at 253-54 (reproducing entry in 

Senate Journal o f M arch 8, 1790).

o Vermont, N ovem ber 3, 1791, Schwartz, at 1202-03; B ill o f R ig h ts a n d the S ta te s ,

at xxii.

o Virginia, D ecem ber 15, 1791, Schwartz, at 1202.

2 By contrast, the third through twelfth proposed amendments, now known as the Bill of Rights, were 

ratified by the requisite eleven States by December 15, 1791, when Virginia ratified them. See B ill o f

Rights an d the States, at xxii; Schwartz, at 1201-02.

107
The Bill of Rights was ratified without the Congressional Pay Amendment by five States, two of which have since ratified the Congressional Pay 

Amendment:

o N ew H am pshire ratified the first and third through tw elfth proposed am endm ents 

on January 25, 1790. 1 F irst C ongress, at 348-49 (reproducing entry in Senate 

Journal o f June 14, 1790). The docum ent transm itted to the C ongress indicates 

that it “rejected” the second article o f the proposed am endm ents. Id. at 348. 

New H am pshire subsequently ratified the Congressional Pay Am endm ent on M arch 

7, 1985. S e e 131 Cong. R ec. 6689 (1985); 138 Cong. Rec. S6831 (daily ed. M ay

19, 1992).

o New Jersey ratified all but the second am endm ent on N ovem ber 20, 1789. 1 F irst

C o n g re ss, at 475-76 (reproducing entry in Senate Journal o f A ugust 6, 1790). 

T he notification transm itted to Congress did not m ention the second proposed 

am endm ent. Id.

N ew Jersey subsequently ratified the C ongressional Pay A m endm ent on M ay 7, 

1992. 138 Cong. Rec. S6831, S6846 (daily ed. May 19, 1992). 

o T he New York legislature ratified the first and third through tw elfth proposed 

am endm ents on February 24, 1790. 1 F irst C ongress, at 279-80 (reproducing 

entry in Senate Journal o f April 5, 1790).3 The docum ent transm itted to the 

C ongress indicates that it ratified all o f the proposed am endm ents “except the 

second.” Id. Although th at docum ent does not m ention a form al rejection o f the 

proposed amendment, a contem porary newspaper account reported that it was 

rejected by a vote of 52 to 5. Schwartz, at 1178. 

o R hode Island ratified all but the second am endm ent on June 11, 1790. S e e 1 F irst

C o n g re ss, at 389 (reproducing entry in Senate Journal o f June 30, 1790); B ill o f

R ig h ts a n d th e States, at xxii. The notification transm itted to C ongress does not 

m ention the second proposed am endm ent. 1 First C o n g ress, at 389. 

o Pennsylvania ratified all but the first and second proposed am endm ents on M arch 

10, 1790. 1 First C o n g ress, at 260-61 (reproducing entry in Senate Journal o f 

M arch 16, 1790). The notification transm itted to Congress does not m ention the 

am endm ents that were n o t ratified. Id. Newspaper accounts indicate that the first 

tw o am endm ents were postponed for further consideration, but there is no indication o f w hether they w ere form ally rejected. Schwartz, at 1176.

Massachusetts, Connecticut, and Georgia did not notify the federal government of any action on the proposed amendments.4

Further action to impose a constitutional limitation on congressional pay 

did not come until 1816. During its first session, the Fourteenth Congress 

passed a law replacing its per diem pay, which had remained unchanged 

since the first Congress, with a salary of $1500 per year. Act of Mar. 19,

3 The resolution was approved by New York's Council of Revision on February 27, 1790. 1 F irst

C ongress, at 280.

4 M assachusetts presented a unique case. Its legislative records indicate that it considered the amendments, and agreed to ratify most. The Congressional Pay Amendment was “rejected” by the Massachusetts Senate, Schwartz, at 1174, and was “not accepted” by the Massachusetts House. Id. at 1175. 

However, Massachusetts did not notify the federal government of these actions. Id. at 1172. When 

Secretary of State Thomas Jefferson sought such notification, he was told that the Massachusetts legislature had never passed the official bill ratifying the amendments. Id. at 1175. Massachusetts ultimately 

ratified the Bill of Rights in 1939, as did Georgia and Connecticut. Bill o f Rights and the States, at xxii.

108
1816, ch. 30, 3 Stat. 257. See also 29 Annals of Cong. 199-204 (1816). The 

Compensation Act was extraordinarily unpopular. See Henry Adams, History

of the United States of America During the Administrations of James Madison 1274-76 (Library of America 1986). Immediately upon convening the 

second session of the Congress, a bill repealing the Act was introduced. See

30 Annals of Cong. 10 (1816). Beyond merely a repeal of the offensive 

statute, Senator James Barbour introduced a joint resolution proposing a constitutional amendment identical to the Congressional Pay Amendment in all 

but punctuation:

No law varying the compensation for services of the Senators 

and Representatives shall take effect until an election of Representatives shall have intervened.

Id. at 30. See also Herman V. Ames, The Proposed Amendments to the

Constitution o f the United States During the First Century o f its History,

H.R. Doc. No. 353, 54th Cong., 2d Sess., pt. 2, at 34 (1897) (“Ames”). 

Congress repealed the Compensation Act, see Act of Feb. 6, 1817, ch. 9, 3 

Stat. 345, but did not act on the proposed amendment.

Nevertheless, several states joined the call for such an amendment. On 

January 17, 1817, the General Assembly of Kentucky proposed a constitutional amendment nearly identical to the Congressional Pay Amendment:

That no law varying the compensation of the members of the 

congress of the United States, shall take effect until the time 

for which the members of the house of representatives of that 

congress by which the law was passed, shall have expired.

1816-17 Ky. Laws 279. See also Ames, at 333. The legislatures of Massachusetts and Tennessee passed resolutions proposing similar amendments. 

Ames, at 34-35, 333. Tennessee’s resolution, identical to that of Kentucky 

except for punctuation and capitalization, was received by the Senate and 

printed in the Annals of Congress although only by a narrow vote after 

“considerable debate.” 31 Annals of Cong. 170 (1818). Congress took no 

action on any of these proposals. The legislature of Illinois, however, passed 

a resolution criticizing Kentucky’s proposed amendment as “unnecessary 

and inexpedient” and directing Illinois’s representatives in Congress to oppose the proposal. 1821 111. Laws 187. Illinois’s resolution was transmitted 

to Congress. 38 Annals of Cong. 35 (1821). Vermont, Ohio and New Hampshire also passed resolutions opposing Kentucky’s proposal. 1817 Vt. Laws 

100-01; 1818 Ohio Laws 202-03; 1818 N.H. Laws 165. See also Ames, at 

333. It does not appear that any of those States took action at that time to 

ratify or reject the Congressional Pay Amendment proposed by the first

109
Congress, nor is there any indication whether anyone at the time considered 

that amendment to be pending before the States.5

In 1822, three new amendments related to congressional salaries were 

proposed, though Congress did not act on any of them. Ames, at 35. One 

was essentially the same as the Congressional Pay Amendment, except that 

it did not apply to Senators:

That no increase or diminution of the compensation to Representatives, for their services as such, shall be made by Congress, 

to have effect or operation during the period for which the 

members of the House of Representatives, acting upon the subject, shall have been elected.

39 Annals of Cong. 1752 (1822). Another fixed the compensation of members of Congress at the amount paid to members of the first Congress. See

id. at 1768. The third provided that compensation for members of Congress, 

as well as the President and Vice President, would be fixed every ten years, 

after the census, and that alterations would take effect only after the particular 

official’s current term had expired. Id. at 1777-78. Again, there is no indication 

whether those members proposing the amendments believed that the amendment proposed by the first Congress was still pending. The brief remarks in the 

Annals o f Congress do not address the issue. See id. at 1753, 1768.

The only state to take formal action on the Congressional Pay Amendment in the 19th century was Ohio. Its General Assembly ratified the proposed 

amendment on May 6, 1873. As expressed in the ratifying resolution, the 

legal theory was straightforward: under Article V, proposed amendments become valid when ratified by three-fourths of the States, and the Congressional 

Pay Amendment “not having received the assent of the Legislatures of threefourths of the several States is still pending for ratification.” 1873 Ohio 

Laws 409 (joint resolution ratifying the second article of the twelve amendments to the Constitution submitted by the first Congress).6 It is unclear 

what became of Ohio’s ratification. Although the resolution called upon the 

governor to transmit the ratification to the President and Congress, more than 

one hundred years later, in 1985, the National Archives and Records Service 

reported that Ohio, as well as several other States, had not sent official notice 

of ratification to the federal government. Robert S. Miller and Donald O. 

Dewey, The Congressional Salary Amendment: 200 Years Later, 10 Glendale

5 Vermont had already ratified the Congressional Pay Amendment and New Hampshire had previously 

rejected it. See supra, pp. 107-08.

‘ O hio’s action received considerable attention early in this century, when several proposals were made 

to amend the Constitution to impose a tim e limit on ratification for all amendments. Members of 

C ongress supporting the proposal pointed to Ohio's ratification of the Congressional Pay Amendment 

as a prime example of the consequences o f having no time limits on amendments. See e.g., 55 Cong. 

Rec. 5556-57 (1917); 58 Cong. Rec. 5697, 5699 (1919).

110
L. Rev. 92, 102 (1991).7 Those States have since transmitted official notices. 

See id.\ 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) (Archivist’s certification of the 27th Amendment, listing the forty states that had ratified the amendment 

and transmitting notification to the Archivist before May 18, 1992); 138 Cong. 

Rec. S6835 (daily ed. May 19, 1992).

The controversial pay increase that provoked Ohio’s ratification led to 

activity in Congress as well. Just as in the early 1800’s, several new amendments, similar to that proposed by the first Congress, were introduced. Ames 

at 35. Congress took no action on them, however, instead repealing the pay 

increase. Id.

The next action on the Congressional Pay Amendment did not come until 

March 3,' 1978, when the Wyoming legislature ratified it. See 124 Cong. 

Rec. 7910 (1978).8 Five years later, on April 27, 1983, Maine ratified the 

amendment, 130 Cong. Rec. 25,007-08 (1984), bringing the total number of 

ratifications to nine. Since then, thirty-two additonal States have ratified the 

amendment, most recently Missouri and Alabama on May 5, 1992, Michigan 

and New Jersey on May 7, 1992, Illinois on May 12, 1992, and California 

on June 26, 1992. See 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) 

(Archivist’s certification); 138 Cong. Rec. E2237 (daily ed. July 24, 1992) 

(California). Thus, forty-one States have now ratified the amendment, three 

more than three-fourths of the fifty States.

Some States that have ratified recently have elaborated the legal basis for 

their actions in their ratifying resolutions. Fourteen States mentioned the 

Supreme Court’s decision in Coleman v. Miller, 307 U.S. 433 (1939), in 

their ratifying resolutions. Many used language to this effect:

Whereas, the legislature of the state of New Mexico acknowledges that the article of amendment to the constitution of the 

United States proposed by resolution of the First Congress on 

September 25, 1789, may still be ratified by states’ legislatures as 

a result of the ruling by the United States supreme court in the 

landmark case of Coleman v. Miller, 307 U.S. 433 (1 9 3 9 )....

132 Cong. Rec. 3956 (1986) (New Mexico). Accord 134 Cong. Rec. 14,023

(1988) (Arkansas); 133 Cong. Rec. 11,618-19 (1987) (Montana); 135 Cong. 

Rec. 15,623 (1989) (Nevada); 135 Cong. Rec. 20,519-520 (1989) (Oregon); 

135 Cong. Rec. 11,900-01 (1989) (Texas); 136 Cong. Rec. S9170 (daily ed. 

June 28, 1990) (Kansas); 137 Cong. Rec. SI0,949 (daily ed. July 25, 1991) 

(North Dakota); 138 Cong. Rec. S6845 (daily ed. May 19, 1992) (Alabama).9

Other States referred to Coleman without expressly tying it to their power

7 It should be noted that notice of ratification by at least some of those States had been previously 

received by Congress and published in the Congressional Record. See 124 Cong Rec. 7910 (1978) 

(Wyoming); 130 Cong. Rec. 25,007-08 (1984) (Maine).

'T h e Governor of Wyoming signed the ratification on March 6, 1978. Miller and Dewey, 10 Glendale 

L. Rev., supra, at 100.

’ For ease of reference, we have cited to the resolutions as reprinted in the Congressional Record,

Continued

111
to ratify the Congressional Pay Amendment, and also noted the lack of any 

time limit either generally in Article V or specifically in the Congressional 

Pay Amendment as proposed to the States. For example, Colorado, which on 

April 22, 1984, became the tenth State to ratify the amendment, states:

Whereas, Article V of the United States Constitution does not 

state a time limit on ratification of an amendment submitted 

by Congress, and the First Congress specifically did not provide 

a time limit for ratification of the proposed amendment; and

Whereas, The United States Supreme Court has ruled in 

Coleman v. Miller, 307 U.S. 433 (1939), that an Amendment 

to the United States Constitution may be ratified by states at 

any time, and Congress must then finally decide whether a 

reasonable time had elapsed since its submission when, in the 

presence of certified ratifications by three-fourths of the States, 

the time arrives for the promulgation of the adoption of the 

amendment, ....

138 Cong. Rec. S6837 (daily ed. May 19, 1992) (Colorado). Accord 135 

Cong. Rec. 5821 (1989) (Iowa); 135 Cong. Rec. 14,147 (1989) (Minnesota); 

138 Cong. Rec. S 14,974 (daily ed. Sept. 24, 1992) (Missouri); 138 Cong. 

Rec. S8387 (daily ed. June 17, 1992) (Illinois).

Other States have not cited Coleman, and instead have emphasized, as 

Ohio did, the absence of a time limit in the Congressional Pay Amendment 

proposal. For example, Wyoming, the first State to ratify the amendment in 

this century, stated in its ratifying resolution:

Whereas the Congress of the United States, upon proposing 

that amendment, did not place any time limitation on its final 

adoption ....

1978 Wyo. Sess. Laws. 427. Accord 134 Cong. Rec. 9525 (1988) (Georgia);

134 Cong. Rec. 8752 (1988) (West Virginia); 135 Cong. Rec. 14,816 (1989) 

(Alaska); 136 Cong. Rec. S10.091 (daily ed. July 19, 1990) (Florida). See

also 133 Cong. Rec. 24,779 (1987) (Wisconsin) (noting additionally that 

“the congress of the United States has the power to impose reasonable time

’ (....continued)

although such publication has no independent legal consequence. The States generally transmit certified 

copies of the resolutions directly to the Archivist of the United States. The resolutions, except for 

C alifornia’s, are also reprinted together in the Congressional Record. See 138 Cong. Rec. S6831-46 

(daily ed. May 19, 1992). A tabulation by the Archivist of the dates o f ratification can be found in the 

Congressional Record. Id. at S6831.

112
limits for the ratification of proposed amendments”). Wisconsin’s ratification 

is noteworthy also because it is the only one that provides a rationale for the 

authority to ratify an amendment that was proposed before the State entered 

the Union:

Whereas, the congressional pay changes amendment was validly ratified by the state of Vermont on November 3, 1791, 

even though Vermont had not been one of the original 13 

states to which the proposed amendment had been submitted, 

and had not yet achieved statehood when the amendment was 

submitted ....

Id.

Finally, many States mention neither Coleman nor time limits, nor allude 

to the fact that the amendment is approximately 200 years old. See 130 

Cong. Rec. 25,007-08 (1984) (Maine); 1985 S.D. Laws 27 (South Dakota); 

131 Cong. Rec. 6689 (1985) (New Hampshire); 131 Cong. Rec. 9443 (1985) 

(Arizona); 131 Cong. Rec. 27,963 (1985) (Tennessee); 131 Cong. Rec. 27,963- 

64 (1985) (Oklahoma); 132 Cong. Rec. 8284 (1986) (Indiana); 132 Cong. 

Rec. 12,480 (1986) (Utah); 133 Cong. Rec. 23,571 (1987) (Connecticut);

134 Cong. Rec. 18,760 (1988) (Louisiana); 135 Cong. Rec. 14,572-73 (1989) 

(Idaho); 138 Cong. Rec. S7026 (daily ed. May 20, 1992) (Michigan); 138 

Cong. Rec. S6846 (daily ed. May 19, 1992) (New Jersey); 138 Cong. Rec. 

E2237 (daily ed. July 24, 1992) (California). The Idaho legislature’s resolution was based, pursuant to state law, on a state referendum on the amendment.

135 Cong. Rec. 14,572-73 (1989).

The Archives has indicated that it has received no rescissions of previous 

ratifications of the Congressional Pay Amendment, nor have we found any 

public record of rescissions.10

10 Several of the States that have ratified the amendment, however, had previously rejected it. To the 

extent reflected in documents transmitted to the federal government. New Hampshire had expressly 

rejected the amendment, while New Jersey had simply failed to ratify it when ratifying the other proposed amendments. In 1817, Vermont, which had ratified the amendment in 1791, passed a resolution 

opposing a similar amendment proposed by Kentucky, but the resolution specifically refers to the Kentucky, proposal and does not purport to rescind Vermont's earlier ratification of the Congressional Pay 

Amendment. See supra, p. 109. Oklahoma's ratification purports to have an expiration date — Decem ­

ber 31, 1995 — pursuant to state law. 131 Cong. Rec. 27,964 (1985).

113