b'Congressional Pay Amendment\nT h e C o n g ressio n al Pay A m endm ent, w hich w as originally proposed by C ongress to the States\nfor ratification in 1789, and having been ratified by three-fourths o f the S tates, h as b een\nratified p u rsu an t to A rticle V and is accordingly now part o f the C onstitution.\n\nU n d er 1 U .S .C . \xc2\xa7 106b, the A rchivist was, upon receipt o f form al instrum ents o f ratification\nfrom the req u isite num ber o f States, required to publish the C ongressional Pay A m endm ent\nalong w ith his certificate specifying that the A m endm ent has becom e valid, to all in ten ts and\npurposes, a s part o f the C onstitution.\n\nMay 13, 1992\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nC o u n sel\n\nto the\n\nP r e s id e n t\n\nYou have asked for a summary of our views, on an expedited basis, on\nwhether the Congressional Pay Amendment has been duly adopted in accor\xc2\xad\ndance with the formal requirements of Article V of the Constitution. The\nGeneral Counsel of the National Archives and Records Administration has\ninformed us that the Archivist of the United States has received word that a\ntotal of thirty-nine States have adopted the Amendment, one more than the\nthree-fourths required under Article V. The Archivist expects to have re\xc2\xad\nceived formal instruments of ratification from all the necessary States shortly\nand informs us that no state has purported to rescind its ratification.\nArticle V of the Constitution provides:\nThe Congress, whenever two thirds of both Houses shall deem\nit necessary, shall propose Amendments to this Constitution . . .\nwhich . . . shall be valid to all Intents and Purposes, as Part of\nthis Constitution, when ratified by the Legislatures of three\nfourths of the several States, or by Conventions in three fourths\nthereof, as the one or the other Mode of Ratification may be\nproposed by the Congress . . . .\nCongress proposed the Pay Amendment to the States in 1789, by a resolu\xc2\xad\ntion concurred in by two-thirds of both Houses. 1 Stat. 97 (1789). That\nresolution further provided that the Amendment would be valid as part of\n85\n\n\x0cthe Constitution \xe2\x80\x9cwhen ratified by three fourths of the [State] legislatures.\xe2\x80\x9d\nId. As the Amendment was proposed by the requisite majorities of both\nHouses of Congress, and has been ratified by the legislatures of three-fourths\nof the States, it has met all of the requirements for adoption set forth in\nArticle V.\nSection 106b of title 1, United States Code, provides:\nWhenever official notice is received at the National Archives\nand Records Administration that any amendment proposed to\nthe Constitution of the United States has been adopted, ac\xc2\xad\ncording to the provisions of the Constitution, the Archivist of\nthe United States shall forthwith cause the amendment to be\npublished, with his certificate, specifying the States by which\nthe same may have been adopted, and that the same has be\xc2\xad\ncome valid, to all intents and purposes, as a part of the\nConstitution of the United States.\nAccordingly, upon the receipt of formal instruments of ratification of the\nPay Amendment from three-fourths of the States, the Archivist must forth\xc2\xad\nwith cause the Amendment to be published with his certificate specifying\nthe States by which it has been adopted, and that the Amendment has be\xc2\xad\ncome valid, to all intents and purposes, as a part of the Constitution of the\nUnited States. The effective date of the Amendment is the date on which it\nwas ratified by the thirty-eighth State to do so.\nTIMOTHY E. FLANIGAN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n86\n\n\x0cNovember 2, 1992\nM\n\nem o ran d u m\n\nO\n\np in io n f o r t h e\n\nC o u n sel\n\nto th e\n\nP r e s id e n t\n\nYou have asked us to memorialize the detailed analysis underlying the\nadvice rendered to you earlier this year in connection with the ratification of\nthe Congressional Pay Amendment, originally proposed by Congress to the\nStates for ratification in 1789. You also asked us to address the question\nwhether the Archivist of the United States, upon receipt of formal instru\xc2\xad\nments of ratification from the requisite number of states, was required to\ncertify that the Congressional Pay Amendment has become part of the Con\xc2\xad\nstitution.1\nFor the reasons set forth below, we conclude that the Congressional Pay\nAmendment has been ratified pursuant to Article V and is accordingly now\npart of the Constitution, and that the Archivist was required to issue his\ncertification to that effect in accordance with 1 U.S.C. \xc2\xa7 106b.\nI.\nA.\nThe procedures for amending the Constitution are set forth in Article V:\nThe Congress, whenever two thirds of both Houses shall deem\nit necessary, shall propose Amendments to this Constitution,\nor, on the Application of the Legislatures of two thirds of the\nseveral States, shall call a Convention for proposing Amend\xc2\xad\nments, which, in either Case, shall be valid to all Intents and\nPurposes, as Part of this Constitution, when ratified by the\nLegislatures of three fourths of the several States, or by Con\xc2\xad\nventions in three fourths thereof, as the one or the other Mode\nof Ratification may be proposed by the Congress.\n\n\' We have relied upon the Archivist of the United States for his official tally of the ratifying States. In\naddition to the forty states listed in the Archivist\xe2\x80\x99s certification, see 57 Fed. Reg. 21,187, 21,188 (1992),\nwe understand that California ratified the amendment on June 26, 1992, see 138 Cong. Rec. E2237\n(daily ed. July 24, 1992). We set forth in detail the history of the Congressional Pay Am endm ent\xe2\x80\x99s\nratification by the States in the accompanying Appendix.\n\n87\n\n\x0cThe Constitution of the United States: Analysis and Interpretation, S. Doc.\nNo. 16, 99th Cong., 1st Sess. 18 (Johnny H. Killion ed., 1987) (\xe2\x80\x9cConstitution\nAnnotated\'). Thus, Congress or a convention proposes an amendment, Con\xc2\xad\ngress proposes a mode of ratification, and the amendment becomes part of\nthe Constitution when ratified by three fourths of the States. The ratification\nof the Congressional Pay Amendment followed this process. Congress pro\xc2\xad\nposed the amendment and directed it to state legislatures for ratification. Act\nof Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789) (Amendments to the U.S. Consti\xc2\xad\ntution). Three fourths of the several States have now ratified it. 57 Fed. Reg.\n21,187, 21,188 (1992); see also Appendix.2 By a straightforward reading of\nArticle V, the amendment is now \xe2\x80\x9cvalid to all Intents and Purposes, as Part of\nth[e] Constitution.\xe2\x80\x9d\nThat the ratification of the Congressional Pay Amendment has stretched\nacross more than 200 years is not relevant under the straightforward lan\xc2\xad\nguage of Article V. Article V contains no time limits for ratification. It\nprovides simply that amendments \xe2\x80\x9cshall be valid to all Intents and Purposes\n. . . when ratified.\xe2\x80\x9d Thus the plain language of Article V contains no time\nlimit on the ratification process.\nNor are we aware of any other basis in law for adding such time limits to\nthe Constitutional amendment process, other than pursuant to the process\nitself. Indeed, an examination of the text and structure of Article V suggests\nthat the absence of a time limit is not an accident. The procedure prescribed\nin Article V necessarily implies that some period of time must pass between\nthe proposal of an amendment and its final ratification by the requisite num\xc2\xad\nber of States.3 This suggests that if a time limit on the process were intended,\nthe time limit would be stated in terms. Moreover, Article V does deal with\na question concerning time limits, and does so quite precisely: no amend\xc2\xad\nment affecting \xe2\x80\x9cthe first and fourth Clauses in the Ninth Section of the first\nArticle\xe2\x80\x9d was permitted to be made \xe2\x80\x9cprior to the Year One thousand eight\nhundred and eight.\xe2\x80\x9d If the Framers had contemplated some terminus of the\nperiod for ratification of amendments generally, they would have so stated.\nThe rest of the Constitution strengthens the presumption that when time\nperiods are part of a constitutional rule, they are specified. For example,\nrepresentatives are elected every second year, U.S. Const, art. I, \xc2\xa7 2, and a\ncensus must be taken within every ten year period following the first census,\n2The A rchivist also informs us that no State has transmitted to the federal government a document\np urp o rtin g to rescind a prior ratification. In the early 1800\'s, the Vermont legislature, which had\npreviously ratified the amendment, passed a resolution opposing a later, nearly identical proposal by the\nK entucky legislature. S e e 1817 Vt. Law s 100-01. There is no evidence, however, that Vermont at\xc2\xad\ntem pted to rescind its previous ratification. Several states did expressly reject the Congressional Pay\nAm endm ent when it was first proposed, though only New Hampshire appears to have formally notified\nthe federal governm ent o f that fact. S e e 1 D ocum entary H isto ry o f the F irst F ed era l C ongress o f the\nU n ite d S ta te s o f A m e r ic a 348 (Linda G rand DePauw, et. al., eds. 1972) (\xe2\x80\x9c 1 F irst C o n g ress")\xe2\x80\x99. Appendix\nat pp. A-3 to A-4.\n3 S ee Joseph Story, C om m entaries on th e C onstitution o f the U nited Stales \xc2\xa7 959, at 681 (1833) (re\xc2\xad\nprinted 1987) (formal requirements of A rticle V indicate that \xe2\x80\x9c[t]ime is thus allowed, and ample time,\nfor deliberation, both in proposing and ratifying amendments\xe2\x80\x9d) ( \xe2\x80\x9cC om m entaries").\n\n88\n\n\x0cwhich was required to be taken within three years of the first meeting of\nCongress. Id. Neither House of Congress may adjourn for more than three\ndays without the consent of the other, U.S. Const, art. I, \xc2\xa7 5, and the Presi\xc2\xad\ndent has ten days (Sundays excepted) within which to sign or veto a bill that\nhas been presented to him. U.S. Const, art. I, \xc2\xa7 7. The Twentieth Amend\xc2\xad\nment refers to certain specific dates, January 3rd and 20th. Again, if the\nFramers had intended there to be a time limit for the ratification process, we\nwould expect that they would have so provided in Article V.4\nThe records of the drafting and ratification of the Constitution contain no\nhint that Article V was intended to contain any implicit time limit. See, e.g.,\nDillon v. Gloss, 256 U.S. 368, 371 (1921). The issue appears not to have\narisen at the time of the framing, but has since been debated in Congress\nfrom time to time. Throughout most of those debates, the dominant view\nhas been that the Constitution permits the ratification process to proceed for\nan unlimited period of time. The first discussion we have found of the\nquestion whether a proposed constitutional amendment remains viable in\xc2\xad\ndefinitely came in 1869, when Senator Buckalew introduced a measure to\nregulate the time and manner in which state legislatures would consider the\nFifteenth Amendment. In support of his proposal, he stated that because of\nthe confusion created by States that either ratify after rejecting, or reject\nafter ratifying, \xe2\x80\x9cwe are in this condition that you cannot have a constitu\xc2\xad\ntional amendment rejected finally at all in the United States; rejections amount\nto nothing, because ratifications at some future time, ten, twenty, fifty, or\none hundred years hence, may give it validity.\xe2\x80\x9d Cong. Globe, 40th Cong., 3d\nSess. 913 (1869). Senator Bayard, opposing a related proposal, stated his\nbelief that \xe2\x80\x9cas long as the proposed amendment has neither been adopted by\nthree fourths of the States nor rejected by more than one fourth, it stands\nopen for . . . action.\xe2\x80\x9d Id. at 1312.\nThe Senate and House debates regarding proposal of the Eighteenth\nAmendment in 1917 also indicate a common belief that Article V contains\nno time limits. For example, in his remarks on the need for limiting time\nfor state ratification, Senator Ashurst explained that two of the first twelve\namendments proposed by Congress \xe2\x80\x9care still pending . . . and have been for\n128 years.\xe2\x80\x9d 55 Cong. Rec. 5556 (1917). Senator Borah expressed the view\nthat \xe2\x80\x9c[t]he fundamental law of the land does say very plainly, that it places\nno limitation upon the time when or within which [an amendment] must be\nratified. It says \xe2\x80\x98when ratified\xe2\x80\x99, and fixes no limit.\xe2\x80\x9d Id. at 5649. Senator\n4 The Constitution also contains provisions that refer to time but not to a specific period or date. The\nTwelfth Amendment provides that when the House of Representatives must choose the President, it is to\nballot \xe2\x80\x9cim m ediately\xe2\x80\x9d (presumably to prevent intrigue and cabal); the Vice President shall \xe2\x80\x9cim m edi\xc2\xad\nately\xe2\x80\x9d assume the office o f President under certain circumstances, U.S. Const, amend. XXV, \xc2\xa7 4; the\nfirst Senate was \xe2\x80\x9cimmediately\xe2\x80\x9d to divide itself into three classes for purposes of determining when\nterms o f office expired, U.S. Const, art. I, \xc2\xa7 3, cl. 2; the Sixth Amendment requires that accused persons\nreceive a "speedy\xe2\x80\x9d trial. The Constitution also requires that certain duties be performed \xe2\x80\x9c from tim e to\ntim e.\xe2\x80\x9d S e e U.S. Const, art. I, \xc2\xa7 5, cl. 3 (publication of journal o f Congress); art. I, \xc2\xa7 9, cl. 7 (publication\nof statement of accounts); art. II, \xc2\xa7 3 (President\xe2\x80\x99s state of the union message). The comm on theme o f all\nthese provisions is that when time is part of a constitutional rule, the document so provides.\n\n89\n\n\x0cCummins offered a separate amendment to Article V, stating that \xe2\x80\x9cI am in\nfavor of supplying what is manifestly a defect in our Constitution and pro\xc2\xad\nviding some limit of time . . . \xe2\x80\x9d Id. at 5652. Senator Overman later stated\nthat \xe2\x80\x9cas the Constitution is now, . . . an amendment . . . can be submitted for\na thousand years and be in force whenever ratified.\xe2\x80\x9d 56 Cong. Rec. 10,098\n(1918). In the House, Representative Reavis objected to any time limit in\nthe Constitution. \xe2\x80\x9cThe amendment is submitted until enough legislatures\nhave passed upon it to indicate whether or not it will be approved by threefourths of them.\xe2\x80\x9d 56 Cong. Rec. 444 (1917). Representative Steel replied\nthat without a time limit, \xe2\x80\x9cwhen a proposed constitutional amendment goes\nout to the States it rests there for agitation for all time without any limita\xc2\xad\ntion whatever.\xe2\x80\x9d Id. at 445.\nThus, although there was much disagreement on the issue \xe2\x80\x94 later ad\xc2\xad\ndressed in Dillon v. Gloss \xe2\x80\x94 whether Congress could impose time limits for\nstate ratification of a proposed constitutional amendment in the absence of a\nseparate amendment to Article V, there was little doubt as to the rule estab\xc2\xad\nlished by the Constitution itself: the proposed amendment remained viable,\nat least until rejected by more than one-fourth of the States.5\nThus, the text and history o f Article V make plain that any argument that\nthere is a time limit on the ratification process must be based on some\nground other than text and history.\n\nB.\n1.\nTwo decisions of the Supreme Court, Dillon, and Coleman v. Miller, 307\nU.S. 433 (1939), have been cited for the propositioft that Article V requires\nthat the ratification of constitutional amendments takes place within a \xe2\x80\x9crea\xc2\xad\nsonable\xe2\x80\x9d time after proposal.6 That doctrine is not within the holding of\nthose cases, however, and we believe that any dicta supporting the doctrine\nare unsound.\nIn upholding Congress\xe2\x80\x99s power to limit to seven years the time for ratifi\xc2\xad\ncation of the Eighteenth Amendment, the Supreme Court in Dillon stated\n\xe2\x80\x9cthat the fair inference or implication from Article V is that the ratification\n[of an amendment] must be within some reasonable time after the proposal.\xe2\x80\x9d\n256 U.S. at 375. If this reasoning is controlling and Article V does contain\n\n3 It is especially telling that so many of those who thought that the Constitution imposed no tim e limit\non the am endm ent process thought this feature to be a defect in the document; had they thought the\nquestion a close one, or if any textual argum ent had been available, they might have resolved it in favor\no f what they took to be the preferable outcom e.\n6 See, e .g .. E q u a l R ig h ts A m endm ent E x te n sio n : H earings on S. J. Res. 134 Before the S ubcom m . on the\nC o n stitu tio n o f the S e n a te C om m , on the J u d ic ia ry , 95th Cong., 2d Sess. 117 (1978) (\xe2\x80\x9cSenate Hearings\xe2\x80\x9d)\n(testimony of Prof. Thomas I. Emerson, Yale University); id. at 144 (testimony of Prof. Jules B. Gerald,\nWashington University); id. at 266 (statement of Prof. Ruth B. Ginsburg, Columbia University).\n\n90\n\n\x0can implicit requirement that proposal and ratification be reasonably contempora\xc2\xad\nneous, the Congressional Pay Amendment almost certainly would be invalid.7\nAlthough recognizing that Article V \xe2\x80\x9csays nothing about the time within\nwhich ratification may be had,\xe2\x80\x9d id. at 371, the Court in Dillon identified\nthree grounds for concluding that Article V \xe2\x80\x9cstrongly suggests\xe2\x80\x9d that a pro\xc2\xad\nposed amendment may not remain \xe2\x80\x9copen to ratification for all time\xe2\x80\x9d and that\nratification in some States may not be \xe2\x80\x9cseparated frorri that in others by\nmany years and yet be effective.\xe2\x80\x9d Id. at 374. The Court stated:\nFirst, proposal and ratification are not treated as unrelated\nacts but as succeeding steps in a single endeavor, the natural\ninference being that they are not to be widely separated in\ntime. Secondly, it is only when there is deemed to be a neces\xc2\xad\nsity therefor that amendments are to be proposed, the reasonable\nimplication being that when proposed they are to be consid\xc2\xad\nered and disposed of presently. Thirdly, as ratification is but\nthe expression of the approbation of the people and is to be\neffective when had in three-fourths of the States, there is a fair\nimplication that it must be sufficiently contemporaneous in that\nnumber of States to reflect the will of the people in all sections\nat relatively the same period, which of course ratification scat\xc2\xad\ntered through a long series of years would not do.\nId. at 374-75 (emphases added).8\n7 Indeed, the Court in D illon suggested that the period for ratification of the Congressional Pay Amend\xc2\xad\nment, along with that of three other long-dormant proposed amendments, had lapsed:\nThat [construing Article V to require contemporaneous ratification] is the better conclusion\nbecomes even more manifest when what is comprehended in the other view is considered;\nfor, according to it, four amendments proposed long ago \xe2\x80\x94 two in 1789, one in 1810 and one\nin 1861 \xe2\x80\x94 are still pending and in a situation where their ratification in some of the States\nmany years since by representatives of generations now largely forgotten may be effectively\nsupplemented in enough more States to make three-fourths by representatives of the present\nor some future generation. To that view few would be able to subscribe, and in o u r o p in io n it\nis q u ite untenable.\nId. (emphasis added). S ee a lso Memorandum from David C. Huckabee, Analyst, and Thomas M. Durbin,\nLegislative Attorney, Congressional Research Service, Library of Congress, R e: The P ro p o sed C o n g res\xc2\xad\nsio n a l P ay C o n stitu tio n a l A m en d m en t: Issues P ertaining to R a tifica tion, at 2-3 (Aug. 12, 1991) (\xe2\x80\x9cCRS\n\nMemorandum\xe2\x80\x9d ).\ns In support of the notion of contemporaneous consensus, the Court quoted with approval a passage\nfrom John A. Jameson, A Treatise on C onstitu tio n a l C onventions (Da Capo Press 1972) (4th ed. 1887),\nin which Jameson wrote:\nThe better opinion would seem to be that an alteration of the Constitution proposed to-day\nhas relation to the sentiment and the felt needs o f to-day, and that, if not ratified early while\nthat sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not\nagain to be voted upon, unless a second time proposed by Congress.\nId. \xc2\xa7 585, at 634, q u o te d in p a rt in 256 U.S. at 375.\nContrary to the conclusion in D illo n , however, Jameson in his treatise had not suggested that his\n"opinion\xe2\x80\x9d on the need for contem poraneous ratification was based on any requirem ent detectable in\nthe text o f Article V. Rather, he believed that securing this policy goal would require the adoption o f a\n\xe2\x80\x9cconstitutional statute of lim itation" for proposed amendments. Jameson specifically referred to the\nContinued\n\n91\n\n\x0cIn Coleman v. Miller, the Court was presented with a claim by members\nof the Kansas Legislature that the Child Labor Amendment, proposed by\nCongress thirteen years before, \xe2\x80\x9chad lost its vitality through lapse of time.\xe2\x80\x9d\n307 U.S. at 451. The Court refused to consider the claim. Id. at 452-56\n(opinion of Hughes, C.J., joined by Stone and Reed, JJ.); id. at 456-60\n(Black, 1., joined by Roberts, Frankfurter and Douglas, JJ., concurring). In\nhis \xe2\x80\x9copinion for the Court\xe2\x80\x9d in Coleman, Chief Justice Hughes observed that\nalthough the three considerations outlined in Dillon represented \xe2\x80\x9ccogent rea\xc2\xad\nsons\xe2\x80\x9d for concluding in the earlier case that Congress had the power to fix a\nreasonable time limit for ratification, Dillon\'s discussion of these consider\xc2\xad\nations was merely a dictum. Id. at 452-53. Nevertheless, in determining\nthat the issue was \xe2\x80\x9cpolitical,\xe2\x80\x9d Chief Justice Hughes in dicta adhered to the\npremise of Dillon that Article V may be read as implicitly limiting the time for\nratification. See id. at 453-54. See also CRS Memorandum at 3; Staff of House\nComm, on the Judiciary, 85th Cong., 1st Sess.,\' Problems Relating to a Federal\nConstitutional Convention 44-45 (Comm. Print 1957) (by Cyril F. Brickfield).9\n\n2.\nDillon is not authoritative on the issue whether Article V requires con\xc2\xad\ntemporaneous ratification. As Chief Justice Hughes pointed out in Coleman,\n307 U.S. at 452-53, the \xe2\x80\x9creasonable time\xe2\x80\x9d discussion in Dillon was dictum\nbecause the issue before the Court was Congress\xe2\x80\x99s authority to limit the\nperiod for ratification, not a State\xe2\x80\x99s authority to ratify a long-dormant pro\xc2\xad\nposed amendment. See 1 Westel W. Willoughby, The Constitutional Law of\nthe United States 596 n.18 (2d ed. 1929) (\xe2\x80\x9cWilloughby\xe2\x80\x9d) (\xe2\x80\x9c[T]he declaration\nof the court [in Dillon] as to the lapsing of proposed amendments which do\n\' ( ....continued)\nvarious proposed am endm ents \xe2\x80\x9cfloating about" in 1887, including the Congressional Pay Amendment,\nw hich had shortly before been ratified by Ohio, and he acknowledged that \xe2\x80\x9cthere is in force in regard to\nthem no recognized statute o f limitation.\xe2\x80\x9d Jameson, su p ra , \xc2\xa7 586, at 635-36. A fter discussing the\nhypothetical \xe2\x80\x9cconfusion or conflict" that would result from such open-ended proposals, Jameson con\xc2\xad\ncluded w ith a plea for amending the amendm ent process:\nWe discuss this question here m erely to emphasize the dangers involved in the Constitution\na s it sta n d s, and to show the necessity of legislation to make certain those points upon which\ndoubts may arise in the employment of the constitutional process for amending the funda\xc2\xad\nm ental law o f the nation. A constitutional statute o f limitation, prescribing the time within\nwhich proposed amendments shall be adopted or be treated as waived, o u g h t by a ll m ea n s to\nb e p a sse d .\nId. at 635-36 (em phases added). See a lso Herman V. Ames, The P roposed A m en d m en ts to the C on stitu \xc2\xad\ntio n o f th e U n ited S ta te s D u rin g the F irst C en tu ry o f Its H isto ry, H.R. Doc. No. 3 5 3 ,54th Cong., 2d Sess.,\n\npt. 2, at 291-92 & n .l (1897).\n\xe2\x80\x99 C hief Justice Hughes wrote that \xe2\x80\x9cthe question of a reasonable time in many cases would involve . . . an\nappraisal o f a great variety o f relevant conditions, political, social and economic.\xe2\x80\x9d 307 U.S. at 453. The\nfour concurring Justices would have dism issed the case for lack of standing, see id. at 460-70 (opinion of\nFrankfurter, J.), but concurred in the C hief Justice\xe2\x80\x99s conclusion on the broader ground that \xe2\x80\x9cCongress has\nsole and com plete control over the amending process, subject to no judicial review.\xe2\x80\x9d Id. at 459 (Black, J.,\nconcurring). Justices Butler and McReynolds in dissent found the issue justiciable and concluded that\nunder D illo n \xe2\x80\x9cmore than a reasonable tim e had elapsed\xe2\x80\x9d for ratification of the Child Labor Amendment.\nId. at 473 (Butler. J. dissenting). We discuss C olem an\xe2\x80\x99s political question holding in Part II, infra.\n\n92\n\n\x0cnot receive ratification by the States within a reasonable period of time was\nobiter, inasmuch as this question was not before the court in the instant\ncase.\xe2\x80\x9d); see also Brief for the United States Amicus Curiae at 25, Coleman v.\nMiller, 307 U.S. 433 (1939) (No. 38-7) (\xe2\x80\x9cIt was unnecessary in [Dillon] to\nconsider whether a proposed amendment would expire with the passage of\ntime in the absence of [a limitation] provision . . . ,\xe2\x80\x9d).10\nNor is Coleman authoritative as to contemporaneity. The Coleman Court\xe2\x80\x99s\ndiscussion of Dillon\'s \xe2\x80\x9creasonable time\xe2\x80\x9d inference was simply not part of its\nholding. Although Chief Justice Hughes\xe2\x80\x99s opinion for three members of the\nCourt did approve of the \xe2\x80\x9ccogent reasons\xe2\x80\x9d for requiring contemporaneity\noutlined in Dillon, see 307 U.S. at 452-53, the four remaining Justices com\xc2\xad\nprising the seven-vote majority on the dispositive \xe2\x80\x9cpolitical question\xe2\x80\x9d issue\nspecifically repudiated Dillon. The four concurring Justices called for \xe2\x80\x9cdis\xc2\xad\napproval of the conclusion arrived at in Dillon v. Gloss, that the Constitution\nimpliedly require[d] that a properly submitted amendment must die unless\nratified within a \xe2\x80\x98reasonable time.\xe2\x80\x99\xe2\x80\x9d Id. at 458 (Black, J., concurring) (foot\xc2\xad\nnote omitted).11 Moreover, Chief Justice Hughes\xe2\x80\x99s conclusion does not\nlogically imply that Dillon was correct. Having declined to address the\ncontent of an implicit time limit, it leaves open for Congress the conclusion\nthat there is no time limit at all.\n\n3.\nOn its merits, the reasoning of Dillon is unpersuasive in both its spe\xc2\xad\ncific arguments and in its broader methodology. The Dillon Court\xe2\x80\x99s first\n10 Indeed, some have argued that the entire opinion o f the Court in D illon was a dictum and must be\nconsidered \xe2\x80\x9cdubious\xe2\x80\x9d authority at best. S ee Note, The Process o f C o n stitutional A m e n d m e n t, 79 Colum.\nL. Rev. 106, 126 n.75 (1979); Ernst Freund, L eg isla tive P roblem s a n d S o lutions, 7 A.B.A. J. 656, 65657 (1921). The challenge to the Eighteenth Amendment in D illo n was baseless because the seven-year\nlimitation at issue was part of the text of the amendment and was therefore itself ratified by the States;\nthe petitioner did not claim that Congress lacked authority to include such a limitation in the am end\xc2\xad\nment itself. Note, 79 Colum. L. Rev. at 126 n.75. S ee Brief for Appellee at 5, D illon v. G lo ss, 256 U.S.\n368 (1921) (No. 20-251) (\xe2\x80\x9cThe amendment having been ratified by the requisite num ber of States\nwithin the time limitation provided in section three, it is unimportant whether that section is valid or\ninvalid.\xe2\x80\x9d). \xe2\x80\x9c [T]he Suprem e Court, apparently mistaking the actual facts o f the case submitted to it,\nstated and decided the case as though the time limit for ratification had been contained . . . in the Joint\nResolution o f Congress . . . . \xe2\x80\x9d Willoughby, at 596-97.\n"W e do not believe that Chief Justice Hughes\'s opinion must be treated as a holding o f the Court\nbecause it rested on a \xe2\x80\x9cnarrower ground\xe2\x80\x9d than Justice Black\xe2\x80\x99s. Ordinarily, where an opinion for the\nCourt is fragmented, as in C olem an, the opinion of the Justices concurring in the judgm ent on the\nnarrowest grounds is regarded as the Court\'s holding. S ee M a rks v. U nited S ta tes, 430 U.S. 188, 193\n(1977); G regg v. G eorgia, 428 U.S. 153, 169 n. 15 (1976) (opinion o f Stewart, Powell and Stevens, JJ.);\nK ing v. P alm er, 950 F.2d 771, 778 (D.C. Cir. 1991) (Silberman, J., concurring), cert, d e n ie d , 550 U.S.\n1229 (1992). However, \xe2\x80\x9cthe narrowest opinion must represent a common denominator o f the C ourt\xe2\x80\x99s\nreasoning; it must embody a position implicitly approved by at least five Justices who support the\njudgm ent.\xe2\x80\x9d K ing, 950 F.2d at 781. The \xe2\x80\x9creasonable time\xe2\x80\x9d rule thus cannot be considered a holding o f\nC olem an because it was specifically rejected by four/concurring Justices. C olem an \xe2\x80\x9cis not a case in\nwhich the concurrence [here the three-justice H ughesfaction] posits a narrow test to which the plurality\nmust necessarily agree as a logical consequence of^its own, broader position.\xe2\x80\x9d Id. at 782. \xe2\x80\x9cIn other\nwords, it is not a case in which there is an implicit majority o f the court" on the issue whether Article V\nrequires reasonably contemporaneous ratification. Id.\n\n93\n\n\x0cconsideration was that proposal and ratification are steps in a single process\nand hence should not be widely separate in time. This argument simply\nassumes its conclusion \xe2\x80\x94 that the process is to be short rather than lengthy.\nSecond, Dillon argued that because amendments are to be proposed only\nwhen needed, the implication is that they should be dealt with promptly.\nBut necessity is not the same as emergency. Thus, Story has written:\nThe guards [in Article V] against the too hasty exercise of the\n[amendment] power, under temporary discontents or excite\xc2\xad\nments, are apparently sufficient. Two thirds of congress, or of\nthe legislatures of the states, must concur in proposing, or\nrequiring amendments to be proposed; and three fourths of\nthe states must ratify them. Time is thus allowed, and ample\ntime, for deliberation, both in proposing and ratifying amend\xc2\xad\nments. They cannot be carried by surprise, or intrigue, or\nartifice. Indeed, years may elapse before a deliberate judg\xc2\xad\nment may be passed upon them, unless some pressing\nemergency calls for instant action. . . .\n. . . The mode, both of originating and ratifying amendments\n. . . must necessarily be attended with such obstacles and de\xc2\xad\nlays, as must prove a sufficient bar against light or frequent\ninnovations.\nCommentaries, \xc2\xa7\xc2\xa7 959-960, at 681-82. The States that have ratified the\nCongressional Pay Amendment only recently evidently consider it to be just\nas necessary today as the first Congress presumably thought it was in 1789.\nFinally, Dillon suggests that Article V is designed to seek consensus, and\nthat consensus must be contemporaneous. Again, even assuming that it is\nproper to interpolate terms into a constitutional provision in order to serve\nits purported end \xe2\x80\x94 a question we address below \xe2\x80\x94 this reasoning is faulty.\nConsensus does not demand contemporaneity. The sort of lasting consensus\nthat is particularly suitable for constitutional amendments may just as well\nbe served by a process that allows for extended deliberation in the various\nstates. There have been occasions when it has taken decades to build the\nconsensus within Congress needed for a two-thirds vote on a proposed amend\xc2\xad\nment.12 In the absence of a time limit in the original amendment proposal, it\n\n11 S ee, e .g .. Senate Hearings, at 134-35 (statement o f Professor Thomas I. Emerson) (\xe2\x80\x9cHistory has dem \xc2\xad\nonstrated that a long period of time is necessary for the nation to make up its mind with respect to\nfundam ental changes . . . . Thus the W om en\xe2\x80\x99s Suffrage Amendment was under consideration for nearly\nthree quarters o f a century.\xe2\x80\x9d ).\n\n94\n\n\x0cwould appear to be equally true that it may legitimately take many decades\nto build the three-fourths consensus required for the states\xe2\x80\x99 approbation.13\nMore fundamentally, Dillon rests on a faulty approach to the interpreta\xc2\xad\ntion of the Constitution, and in particular those provisions that determine the\nstructure of government. The amendment procedure, in order to function\neffectively, must provide a clear rule that is capable of mechanical applica\xc2\xad\ntion, without any need to inquire into the timeliness or substantive validity\nof the consensus achieved by means of the ratification process. Accord\xc2\xad\ningly, any interpretation that would introduce confusion must be disfavored.\nAs the Supreme Court has explained, the Constitution is designed to provide\n\xe2\x80\x9c[e]xplicit and unambiguous provisions\xe2\x80\x9d to govern the structure of govern\xc2\xad\nment. INS v. Chadha, 462 U.S. 919, 945 (1983) (construing the presentment\nand bicameralism provisions of Article I). The very functioning of the govern\xc2\xad\nment would be clouded if Article V, which governs the fundamental process of\nconstitutional change, consisted of \xe2\x80\x9copen-ended\xe2\x80\x9d principles without fixed appli\xc2\xad\ncations. The alternative to procedural formalism is uncertainty and litigation.14\nAs explained above, the terms of Article V provide a clear rule: any\namendment once proposed \xe2\x80\x9cshall be valid to all Intents and Purposes, as part\nof this Constitution, when ratified by the Legislatures of three-fourths of the\nseveral States.\xe2\x80\x9d The reading according to which Article V contains an im\xc2\xad\nplicit time limit, by contrast, introduces so much uncertainty as to make the\nratification process unworkable. The two stages of the amendment process\nare proposal and ratification. The latter is done by states acting through\nlegislatures or conventions. In order to be able to carry out its function in\nthe ratification process, any state that is contemplating ratification must know\nwhether an amendment is in fact pending before it. That is not a matter of\ndegree; the proposed amendment is either pending or not.\n11 It is conceivable that the goal of consensus, if there is one. could be defeated where the last State to\nratify harbors an entirely different intent or purpose in approving the amendment than did the first\nratifying States o r the proposing Congress. Thus, for example, the meaning o f the words o f an am end\xc2\xad\nment chosen by the proposing Congress could conceivably change dramatically with the passage o f\ntime. If there is a substantive consensus requirement beyond the procedural formalities o f Article V,\nthis hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not\nthe case with the Congressional Pay Amendment. The intent and purpose behind this amendment have\nbeen consistent from its proposal by Madison to its recent ratification. We, therefore, express no opin\xc2\xad\nion on any hypothetical scenario that may present a more fundamental challenge to the notion of con\xc2\xad\nsensus. We conclude only that consensus itself does not necessarily require contemporaneity. M ore\xc2\xad\nover, of course, if the absence of a time limit introduces a danger into the Article V amendment process,\nthe solution is to specify a time limit, either in the text of the amendment or the proposing resolution.\n14 See Walter Dellinger, The L eg itim a cy o f C onstitu tio n a l C hange: R ethinking the A m e n d m e n t P rocess,\n97 Harv. L. Rev. 386,418 (1983) (\xe2\x80\x9cDellinger\xe2\x80\x9d): \xe2\x80\x9c Attention to th[e] formalities [specified in Article V] is\nmore likely to provide clear answers than is a search for the result that best advances an imputed \xe2\x80\x98policy\xe2\x80\x99\nof \xe2\x80\x98contem poraneous consensus.\xe2\x80\x99\xe2\x80\x9d Professor Dellinger nevertheless maintains that a proposed am end\xc2\xad\nment, like the Congressional Pay Amendment, that languishes for years without action by state legisla\xc2\xad\ntures could be considered dead. Id. at 425. Dellinger\'s \xe2\x80\x9cdoctrine o f desuetude," however, has itself been\ncriticized as \xe2\x80\x9can anomolous position" in light of his reliance on the formalities o f Article V. John R. Vile,\nJ u d ic ia l R eview o f the A m en d in g Process: The D ellinger-Tribe D eb a te, 3 J.L. & Pol. 21, 33 (1986). S e e\nalso Laurence H Tribe, A C onstitution We A re A m en d in g : In D efen se o f a R estra in ed J u d ic ia l R ole, 97\nHarv. L. Rev. 433, 434 n.6 (1983). In our view, the notion of desuetude is fraught with all o f the short\xc2\xad\ncom ings that characterize the "reasonable time\xe2\x80\x9d rule of D illon and must be rejected for the sam e reasons.\n\n95\n\n\x0cAccording to the theory that Article V contains an implicit time limit, the\nState must deduce that it can ratify only if the time since proposal is still a\nreasonable one. The implicit reasonable time rule can take one of two\nforms. First, the Constitution might be said to impose the same time period\nwith respect to all proposed amendments. Putting aside the implausibility\nof the suggestion that a legal rule includes a time certain without stating it,\nthis reading would require each state somehow to decide for itself what\nlimitation the Constitution implicitly imposes. This question is extremely\ndifficult, and there is no reason to believe that the different States would\nanswer it in the same way.15 In fact, the long history of congressional\ntreatment of time limits demonstrates that there is no agreement as to what\nperiod of time would be reasonable.16\nThe other possible form of the implicit time limit rule is that the \xe2\x80\x9creason\xc2\xad\nable\xe2\x80\x9d time differs from amendment to amendment, depending on any number\nof unstated factors. This theory requires that the States undertake an inquiry\neven more difficult than the search for an implicit but specific time limit.\nTo take an example, this approach may suggest that the merits of a proposal\nmay affect the question whether it is still pending, because one approach to\njudging the reasonableness of the period of ratification is to ask if the prob\xc2\xad\nlem the amendment was designed to address is still pressing \xe2\x80\x94 a question\nthat is inseparable from the substance of the amendment. However the\nquestion of reasonableness is to be answered, it is plain that answering it\ncan be extremely difficult, and that expecting all the States to answer it in\nthe same way is unreasonable.\nThe implicit time limit theory thus imposes an impossibly burdensome\nrequirement on ratifying States \xe2\x80\x94 that they discern the implicit limitation\nand, if the system is to work smoothly, that they all discern the same one.\nMost discussions of the implicit time limit obscure this difficulty by shifting\nattention away from the situation of the States. For instance, Chief Justice\nHughes\xe2\x80\x99s opinion in Coleman indicates that the reasonableness of the period\nthat has passed since proposal is for Congress to decide at the time of\npromulgation. See 307 U.S. at 454. Congress\xe2\x80\x99s decision at the end of the\n15 The com pelling need for regularity and certainty in the amendment procedure is exactly what prompted\nC ongress to include a tim e limit in the Eighteenth Amendment, which led the Court in D illo n to con\xc2\xad\nsider the question\xe2\x80\x9d[w]hether a definite period for ratification shall be fixed so that all may know what it\nis a n d s p e c u la tio n o n w h a t is a reasonable tim e m a y be a vo id ed ." 256 U.S. at 376 (emphases added).\n\xe2\x80\x9c W hat seem s to have been the first attem pt to impose a time limit on the States occurred during con\xc2\xad\ngressional consideration o f the Fourteenth Amendment, when Senator Buckalew proposed an am end\xc2\xad\nm ent to the join t resolution that would have required ratification within three y ears. Cong. Globe, 39th\nCong., 1st Sess. 2771 (1866). In 1917, during debates on the Eighteenth Amendment, Senator Ashurst\nstated that he could support a time lim it o f \xe2\x80\x9c 10, 12, 14, 16, 18, or even 20 years.\xe2\x80\x9d 55 Cong. Rec. 5557\n(1917). Senator Harding proposed an amendm ent to the joint resolution that would have limited states\'\nconsideration to a period o f six years. Senator Cummins offered a substitute amendment that would\nhave am ended Article V to require state ratification o f all amendments proposed after January 1, 1917,\nto e ig h t y e a r s , expressing the view th at what is a \xe2\x80\x9creasonable\xe2\x80\x9d period for ratification might differ in\neach case. 55 Cong. Rec. 5652 (1917). During debate on the Child Labor Amendment in 1924, Repre\xc2\xad\nsentative Linthicum and Senator Fletcher offered amendments that would have required ratification\nwithin fi v e y e a r s of proposal. 65 Cong. Rec. 7288, 10,141 (1924).\n\n96\n\n\x0cprocess, however, can be of no use to States while that process is going on.\nAccording to Chief Justice Hughes\xe2\x80\x99s approach, the States must make deci\xc2\xad\nsions concerning constitutional amendments without knowing whether those\ndecisions matter until they leam from Congress at some later date, if ever.17\nThe implicit time limit thesis is thus deeply implausible, because it intro\xc2\xad\nduces hopeless uncertainty into that part of the Constitution that must function\nwith a maximum of formal clarity if it is to function.\nIn sum, the dictum of Dillon and the view of Chief Justice Hughes\xe2\x80\x99s\nplurality in Coleman are not authoritative nor are they persuasive. Article V\ncontains no time limit not stated in its text. The Congressional Pay Amendment\n\xe2\x80\x94 rather, the Twenty-Seventh Amendment \xe2\x80\x94 although well aged, is not stale.18\n\nII.\nYou have also asked whether, under 1 U.S.C. \xc2\xa7 106b, the Archivist was\nrequired to publish the Congressional Pay Amendment along with his cer\xc2\xad\ntificate specifying that the Amendment has become valid, to all intents and\npurposes, as part of the Constitution. We believe that he was required to do so.\n\nA.\nSection 106b provides:\nWhenever official notice is received at the National Archives\nand Records Administration that any amendment proposed to\nthe Constitution of the United States has been adopted, ac\xc2\xad\ncording to the provisions of the Constitution, the Archivist of\nthe United States shall forthwith cause the amendment to be\npublished, with his certificate, specifying the States by which\nthe same may have been adopted, and that the same has be\xc2\xad\ncome valid,, to all intents and purposes, as a part of the\nConstitution of the United States.\n17See Note, C ritical D etails: A m en d in g the U nited S ta tes C o n stitu tio n , 16 Harv. J. on Legis. 763, 767\n(1979) (\xe2\x80\x9cAlthough C olem an did spell out some guidelines, the state legislatures would still only specu\xc2\xad\nlate about what amount o f time Congress would conclude was reasonable. Only some direct signal from\nCongress before or during ratification would definitely prescribe the time for action in the states.\xe2\x80\x9d). Se e\na lso 2 David K. Watson, The C onstitution o f the U n ited States 1311-12 (1910) (\xe2\x80\x9cWho but the state can\njudge of what would be a reasonable time? It is for the state to ratify and cannot the state take its own\ntime to do it?\xe2\x80\x9d), q u o ted in C ase N ote, 24 Minn. L. Rev. 393, 394 n.9 (1940).\n"S ev eral other amendments to the Constitution have been proposed to the States without time limits\nand have never received the approval of three-fourths of the States. See C onstitution A n n o ta ted , at 5153. A resolution was introduced in the Senate purporting to declare that those proposals have "ex\xc2\xad\npired,\xe2\x80\x9d but it was not passed. See S. Con. Res. 121, 102d Cong., 2d Sess. (1992); 138 Cong. Rec.\nS6839, S6908 (daily ed. May 19, 1992). B u t see 138 Cong Rec. S6949 (daily ed. May 2, 1992) (Sena\xc2\xad\ntor Sanford asserting that \xe2\x80\x9ctoday the Senate also decided to declare that four other proposed and pend\xc2\xad\ning amendments . . . were to be considered to have lapsed\xe2\x80\x9d). This opinion does not address the current\nvitality of any o f those amendments. We note, however, that the status of the amendment proposed in\n1861 providing that \xe2\x80\x9c[n]o amendment shall be made to the Constitution which will authorize or give\nCongress the power to abolish or interfere, within any State, with the domestic institutions thereof,\nincluding that of persons held to labor or service by the laws of said State,\xe2\x80\x9d C onstitution A n n o ta te d at\n52, may be determined by the subsequent adoption of the Thirteenth Amendment.\n\n97\n\n\x0c1 U.S.C. \xc2\xa7 106b. The statutory directive is clear. First, the Archivist must\ndetermine whether, as a matter of law, he has received \xe2\x80\x9cofficial notice\xe2\x80\x9d of an\namendment\xe2\x80\x99s adoption \xe2\x80\x9caccording to the provisions of the Constitution.\xe2\x80\x9d Id.\nIf he determines that he has received such notice, he must publish the amend\xc2\xad\nment with a certificate specifying, inter alia, that the amendment \xe2\x80\x9chas become\nvalid, to all intents and purposes, as a part of the Constitution.\xe2\x80\x9d Id. The\nstatute allows the Archivist no discretion in this regard.\nCongress has required the executive branch to certify the validity of con\xc2\xad\nstitutional amendments since 1818. In that year, Congress established a\nstatutory mechanism for the publication of constitutional amendments as\npart of a general provision \xe2\x80\x9cfor the publication of the laws\xe2\x80\x9d:\n[W]henever official notice shall have been received, at the\nDepartment of State, that any amendment which heretofore\nhas been, or hereafter may be, proposed to the constitution of\nthe United States, has been adopted, according to the provi\xc2\xad\nsions of the constitution, it shall be the duty of the said\nSecretary of State forthwith to cause the said amendment to\nbe published in the . . . newspapers authorized to promulgate\nthe laws, with his certificate, specifying the states by which\nthe same may have been adopted, and that the same has be\xc2\xad\ncome valid, to all intents and purposes, as a part of the\nconstitution of the United States.\nAct of Apr. 20, 1818, ch. 80, \xc2\xa7 2, 3 Stat. 439. Over time, Congress deleted\nthe reference to newspapers and transferred the duty of publication from the\nSecretary of State, first to the Administrator of General Services, see Act of\nOct. 31, 1951, ch. 655, \xc2\xa7 2(b), 65 Stat. 710 (1951); Reo\'rg. Plan No. 20 of\n1950, \xc2\xa7 1(c), 64 Stat. 1272, and then to the Archivist, see National Archives\nand Records Administration Act of 1984, Pub. L. No. 98-497, \xc2\xa7 107, 98 Stat.\n2280, 2291 (1984). The substance of the statutory directive, however, has\nremained the same.\nSection 106b and its antecedents have long been understood as imposing a\nministerial, \xe2\x80\x9crecord-keeping\xe2\x80\x9d duty upon the executive branch. See 96 Cong.\nRec. 3250 (Message from President Truman accompanying Reorg. Plan No.\n20 of 1950); Judith L. Elder, Article V, Justiciability, and the Equal Rights\nAmendment, 31 Okla. L. Rev. 63, 75-76 (1978). The Archivist may not\nrefuse to certify a valid amendment. See United States ex rel. Widenmann v.\nColby, 265 F. 998, 999 (D.C. Cir. 1920) (no discretion to refuse publication\nonce official notice received, as publication is merely \xe2\x80\x9cministerial act\xe2\x80\x9d), a ff\xe2\x80\x99d\nmem. sub. nom. U.S. ex rel. Widenmann v. Hughes, 257 U.S. 619 (1921);\nUnited States v. Sitka, 666 F. Supp. 19, 22 (D. Conn. 1987), aff\'d, 845 F.2d\n98\n\n\x0c43 (2d Cir.), cert, denied, 488 U.S. 827 (1988).19 Nonetheless, section 106b\nclearly requires that, before performing this ministerial function, the Archi\xc2\xad\nvist must determine whether he has received \xe2\x80\x9cofficial notice\xe2\x80\x9d that an\namendment has been adopted \xe2\x80\x9caccording to the provisions of the Constitu\xc2\xad\ntion.\xe2\x80\x9d This is a question of law that the Archivist may properly submit to\nthe Attorney General for resolution. See 28 U.S.C. \xc2\xa7 511 (\xe2\x80\x9cThe Attorney\nGeneral shall give his advice and opinion on questions of law when required\nby the President.\xe2\x80\x9d).20\n\nB.\nAs we concluded above, the Congressional Pay Amendment has been\nadopted in accordance with the Constitution. The only obstacle to the\nArchivist\xe2\x80\x99s promulgation of the amendment would be the thesis, advanced\nby some commentators, that under Coleman v. Miller, 307 U.S. 433 (1939),\nCongress alone among the branches may determine whether an amendment\nhas been constitutionally adopted. Under this theory, the Archivist must\nwait for a determination of the matter by Congress or, at most, issue a\n\xe2\x80\x9cconditional certification\xe2\x80\x9d of an amendment in deference to possible con\xc2\xad\ngressional action. We believe that Coleman is not authority for this theory,\nand that congressional promulgation is neither required by Article V nor\nconsistent with constitutional practice. As a consequence, we believe that\nthe Archivist was not required to wait for a congressional promulgation to\ncertify the Congressional Pay Amendment as valid.\n1.\nIn Coleman, the Court considered the validity of the ratification by Kan\xc2\xad\nsas of the Child Labor Amendment, proposed by Congress in 1924. 307\nU.S. at 435-36. Members of the Kansas Legislature had brought a state-court\naction alleging that the Kansas ratification had been invalid because, inter alia,\nthe State Legislature had ratified the amendment some thirteen years after Con\xc2\xad\ngress had proposed it. Congress had not imposed a time-limit on ratification\n\xe2\x80\x98\xe2\x80\x99 Indeed, there is authority for the proposition that the Archivist\xe2\x80\x99s Certificate is not necessary to an\nam endm ent\'s validity. The text of Article V contains no such requirement. See a lso D illon v. G lo s s ,\n256 U.S. 368, 376 (1921) (Eighteenth Amendment became valid on the date it received its final ratifi\xc2\xad\ncation; the date o f publication was \xe2\x80\x9cnot material, for the date of [an amendm ent\'s] consummation, and\nnot that on which it is proclaimed, controls.\xe2\x80\x9d).\n20 Others have recognized the Attorney General\'s role in resolving such legal questions. Concerning\nthe validity of ratifications of the Equal Rights Amendment, Professor Dellinger questioned w hy the\nAdministrator o f General Services, at that time the official responsible for certifying new amendments,\nwould submit the question to Congress: "An administrator uncertain about the lawful exercise o f one of\nher responsibilities is normally expected to refer the question to the Attorney General for an opinion\nand then act in accordance with that opinion.\xe2\x80\x9d 97 Harv. L. Rev. at 402. That was exactly w hat the\nadministrator at the time intended to do. Asked what would be done if the requisite number o f states\nhad ratified but some States had purported to rescind their ratifications, the Deputy Archivist stated that\n\xe2\x80\x9cwe would call upon the Attorney General to determine the answer to the legal question on rescission.\xe2\x80\x9d\nSenate Hearings, at 109 (testimony of James E. O\xe2\x80\x99Neill).\n\n99\n\n\x0cwhen it had proposed the amendment to the States. The Supreme Court of\nKansas held that the amendment remained susceptible to adoption despite\nthe thirteen-year delay, and dismissed the suit. Id. at 437.\nThe Supreme Court of the United States reversed. There was no majority\nopinion on the validity of the Kansas ratification. Three Justices \xe2\x80\x94 Chief\nJustice Hughes, Justice Stone, and Justice Reed \xe2\x80\x94 determined that the ques\xc2\xad\ntion w hether Kansas had ratified within a \xe2\x80\x9creasonable time\xe2\x80\x9d was a\nnonjusticiable political question. Chief Justice Hughes asserted that the\nresolution of such a question would depend on social, political, and eco\xc2\xad\nnomic conditions that courts were incompetent to address. Id. at 453-54.\n\xe2\x80\x9cOn the other hand,\xe2\x80\x9d he reasoned, \xe2\x80\x9cthese conditions [were] appropriate for\nthe consideration of the political departments of the Government.\xe2\x80\x9d Id. at\n454. The Hughes opinion concluded that the question whether an amend\xc2\xad\nment had lapsed should \xe2\x80\x9cbe regarded as an open one for the consideration of\nthe Congress when, in the presence of certified ratifications by three-fourths\nof the States, the time arrives for the promulgation of the adoption of the\namendment.\xe2\x80\x9d Id.\nFour Justices \xe2\x80\x94 Justice Black, joined by Justices Roberts, Frankfurter,\nand Douglas \xe2\x80\x94 went even further. They disclaimed any judicial review of a\ncongressional determ ination as to the adoption of an amendment.\n\xe2\x80\x9c [Undivided control of [the amendment] process had been given by [Article\nV] exclusively and completely to Congress,\xe2\x80\x9d Justice Black wrote. Id. at\n459 (Black, J., concurring). \xe2\x80\x9cTherefore, any judicial expression amounting\nto more than mere acknowledgement of exclusive Congressional power over\nthe political process of amendment is a mere admonition to the Congress in\nthe nature of an advisory opinion, given wholly without constitutional au\xc2\xad\nthority.\xe2\x80\x9d Id. at 459-60. Two Justices \xe2\x80\x94 Justices Butler and McReynolds \xe2\x80\x94\ndissented on the ground that the amendment was invalid because of the\nthirteen-year delay. Id. at 473-74 (Butler, J., dissenting).\nNeither Chief Justice Hughes nor Justice Black explained the constitu\xc2\xad\ntional basis for the assertion that Congress had authority to \xe2\x80\x9cpromulgate\xe2\x80\x9d an\namendment. Rather, Chief Justice Hughes relied on the \xe2\x80\x9cspecial circum\xc2\xad\nstances\xe2\x80\x9d surrounding the adoption of the Fourteenth Amendment in 1868.\nId. at 449-50.21 At that time, as we have seen, the duty of publication of\nconstitutional amendments rested with the Secretary of State. Because of\nirregularities in the ratifications of Ohio and New Jersey \xe2\x80\x94 the legislatures\nof both States had attempted to rescind their earlier votes to approve the\namendment \xe2\x80\x94 Secretary Seward issued a \xe2\x80\x9cconditional certification\xe2\x80\x9d of the\nFourteenth Amendment on July 20, 1868. Proclamation No. 11, 15 Stat. 706\n(1868). Secretary Seward certified that if the resolutions of Ohio and New\nJersey were still effectual, notwithstanding the subsequent attempts to re\xc2\xad\nscind, \xe2\x80\x9cthen the . . . amendment . . . ha[d] become valid, to all intents and\n\n31Justice Black provided no support for his assertion.\n\n100\n\n\x0cpurposes, as a part of the Constitution.\xe2\x80\x9d Id. at 707. Secretary Seward dis\xc2\xad\nclaimed any authority to resolve the matter himself. Id.\nThe next day, Congress passed a concurrent resolution declaring the Four\xc2\xad\nteenth Amendment to be a part of the Constitution and directing Secretary\nSeward to promulgate it as such. Cong. Globe, 40th Cong., 2d Sess. 4266,\n4295-96 (1868). The Senate passed the resolution without any debate, id. at\n4266, and in the House the only question was whether Georgia, of whose\nratification the Speaker had received notice by telegraph, should be included\non the list of ratifying States. Id. at 4295-96. One week later, on July 28,\n1868, Secretary Seward issued a second proclamation, \xe2\x80\x9cin execution o f \xe2\x80\x99 the\nconcurrent resolution and \xe2\x80\x9cin conformance thereto,\xe2\x80\x9d certifying the Fourteenth\nAmendment as valid. Proclamation No. 13, 15 Stat. 710 (1868).\n\xe2\x80\x9cThus,\xe2\x80\x9d observed Chief Justice Hughes, in the case of the Fourteenth\nAmendment \xe2\x80\x9cthe political departments of the Government dealt\xe2\x80\x9d with ques\xc2\xad\ntions concerning the ratification of the amendment. Coleman, 307 U.S. at\n449. He apparently used the events surrounding the adoption of the Four\xc2\xad\nteenth Amendment as a model and simply assumed that, if and when the\nissue arose with respect to the Child Labor Amendment, the same proce\xc2\xad\ndures would obtain. See id. at 454 (\xe2\x80\x9cThe [eventual] decision by the Congress,\nin its control of the action of the Secretary of State, of the question whether\nthe [Child Labor Amendment] had been adopted within a reasonable time\nwould not be subject to review by the courts.\xe2\x80\x9d). The plurality opinion did\nnot address the question whether, in the event the Secretary of State decided\nto certify the amendment on his own, congressional promulgation would\nstill be necessary. Indeed, given the posture of the case, the Justices could\nnot have addressed that question: the Child Labor Amendment was nowhere\nnear ratification, and circumstances had not required the Secretary to make\nany decision regarding the validity of the amendment.22\nChief Justice Hughes\xe2\x80\x99s opinion is thus best understood as resting on a\npolitical question rationale: courts will not attempt to resolve certain ques\xc2\xad\ntions concerning the validity of states\xe2\x80\x99 ratifications of constitutional\namendments. Rather, the decision of the political branches will control. To\nread the Hughes opinion as addressing the relationship between the political\nbranches and requiring the Executive to defer to Congress on the adoption\nof an amendment would be to resolve an issue that was not before the\nColeman Court. As it was, the Coleman dissenters took their brethren to\ntask for even addressing the role of Congress in the amendment process.\nThe Court had not heard argument on that point, they protested; Congress\xe2\x80\x99s\nrole had not been \xe2\x80\x9craised by the parties or by the United States appearing as\namicus c u r i a e 307 U.S. at 474 (Butler, J., dissenting). At most, Coleman\nstands for the proposition that the validity of a constitutional amendment is\n\xe2\x80\x9c The Hughes opinion endorsed the Court\xe2\x80\x99s earlier holding in L e ser v. G a m eit, 258 U.S. 130, 137\n(1922), that the Secretary would be bound by official notice from a state respecting its ratification. Se e\nC o le m a n , 307 U.S. at 451.\n\n101\n\n\x0ca political question. That proposition has no bearing on the actions of the\nArchivist, an officer of one of the political branches.23\n\n2.\nOn its merits, the notion of congressional promulgation is inconsistent\nwith both the text of Article V of the Constitution and with the bulk of past\npractice.24 Article V clearly delimits Congress\xe2\x80\x99s role in the amendment pro\xc2\xad\ncess. It authorizes Congress to propose amendments and specify their mode\nof ratification, and requires Congress, on the application of the legislatures\nof two-thirds of the States, to call a convention for the proposing of amend\xc2\xad\nments. Nothing in Article V suggests that Congress has any further role.\nIndeed, the language of Article V strongly suggests the opposite: it provides\nthat, once proposed, amendments \xe2\x80\x9cshall be valid to all Intents and Purposes,\nas Part of this Constitution, when ratified by\xe2\x80\x9d three-fourths of the States.\n(Emphasis added.) As Professor Dellinger has written, the Constitution \xe2\x80\x9cre\xc2\xad\nquires no additional action by Congress or by anyone else after ratification\nby the final state.\xe2\x80\x9d 97 Harv. L. Rev. at 398. To interpret Article V \xe2\x80\x9cas\nrequiring or permitting\xe2\x80\x9d a further step of congressional promulgation is, in\nthe words of another scholar, \xe2\x80\x9cno more defensible than to find a third house\nof Congress hidden cleverly in the interstices of the constitutional language\nvesting all legislative power in a House and a Senate.\xe2\x80\x9d Rees supra, at 899.\n23We have discussed C hief Justice H ughes\xe2\x80\x99s opinion because it is the only part of C olem an other than\nthe judgm ent that m ight be considered authoritative. If the views o f the majority Justices had any\ncom m on ground. C hief Justice Hughes\'s occupied the narrowest portion of that ground: Justice B lack\'s\ndisclaim er of any judicial inquiry is broader than the C hief Justice\xe2\x80\x99s approach. Scholars doubt whether\nC o le m a n has authority even as a political question decision. Grover Rees III, Throw ing A w ay the K ey:\nT h e U n c o n stitu tio n a lity o f the Equal R ig h ts A m en d m en t E x ten sion, 58 Tex. L. Rev. 875, 887-88 (1980)\n(\xe2\x80\x9c R ees\xe2\x80\x9d ); Dellinger, at 388 n.8. See a lso A F L -C IO v. M a rch Fong E u, 686 P.2d 609, 616 (Cal. 1984)\nIndeed, C hief Justice Rehnquist has questioned whether C o lem an\'s analysis still obtains in the context\no f A rticle V. S e e U h le rv . A F L-C IO , 468 U.S. 1310(1984) (Rehnquist, Circuit Justice); b u t cf. G o ld w a ter\nv. C a rte r, 444 U.S. 996, 1002 (1979) (Rehnquist, J\xe2\x80\x9e concurring) (relying on C olem an to conclude that\nP resident\xe2\x80\x99s pow er to denounce a treaty was a nonjusticiable political question).\n24In 1977, this Office stated that Congress could by concurrent resolution extend the tim e-lim it for\nratification o f the Equal Rights Amendment. S ee Memorandum for Robert J. Lipshutz, Counsel to the\nPresident, from John M. Harmon, Assistant Attorney General, Office o f Legal Counsel (Oct. 31, 1977)\n(\xe2\x80\x9c O ctober M em orandum "). S ee also E x te n d in g the R a tifica tio n P e rio d f o r the P ro p o sed E qu a l R ig h ts\nA m e n d m e n t: H e a rin g s on H .J. Res. 638 B e fo re the S ubcom m . on C ivil a n d C o n stitutional R ig h ts o f the\nH o u se C o m m , on th e J u d ic ia ry , 95th Cong., 1st Sess. 5-7 (1977) (statement of John M. Harmon, A ssis\xc2\xad\ntant A ttorney G eneral, Office of Legal Counsel); Senate Hearings, supra, note 6. Relying on C olem an,\n\nthis O ffice further concluded that Congress has the exclusive power to determine whether an amend\xc2\xad\nm ent h as been tim ely adopted. See October M emorandum at 17, 20-21, 43. See a lso P ow er o f a State\nL e g is la tu r e to R e s c in d its Ratification o f a C o n stitu tio n a l A m en d m en t, 1 Op. O.L.C. 13 (1977). In an\naside, w e specifically referred to the Congressional Pay Amendment and noted our view that if and\nwhen the thirty-eighth ratification was received, Congress would have the duty to decide whether too\nmuch tim e had passed for the Amendment to be viable. S e e October Memorandum at 21 & n.26; see\na ls o id. at 35 n.43 (Congress may determine whether an amendment has been adopted by concurrent\nreso lu tio n ). T hose opinions arose in a factual setting quite different from the instant case. The\n\xe2\x80\x9creproposal\xe2\x80\x9d o f a constitutional amendment may be an exclusively congressional function in a way that\nth e certification o f a ratified amendment is not. See H o llin g sw o rth v. Virginia, 3 U.S. 378 (1798)\n(thought to stand for the proposition that the President\xe2\x80\x99s signature is not needed for proposal o f an\nam endm ent). To the extent that our earlier opinions suggest that Congress alone must make the deter\xc2\xad\nm ination o f the adoption o f a constitutional amendment, we reject them today.\n\n102\n\n\x0cIn light of the overall structure of the Constitution, it would be surprising\nif Article V did confer such exclusive power on Congress. The fundamental\nfeatures of the American constitutional system - federalism and separation\nof powers \xe2\x80\x94 produce a division of power designed to ensure that the people,\nrather than any organ of the government, are sovereign. As Attorney Gen\xc2\xad\neral Edward Bates explained in 1861, the Framers of the Constitution rejected\nthe notion that \xe2\x80\x9cParliament is omnipotent.\xe2\x80\x9d See 10 Op. Att\xe2\x80\x99y Gen. 74, 75\n(1861). Instead, the federal government \xe2\x80\x9cis not vested with the sovereignty,\nand does not possess all the powers of the nation. It has no powers but such\nas are granted by the Constitution.\xe2\x80\x9d Id. at 77. The same principle undergirds\nthe separation of powers: the three branches of the federal government \xe2\x80\x9care\nco-ordinate and coequal \xe2\x80\x94 that is, neither being sovereign, each is indepen\xc2\xad\ndent in its sphere, and not subordinate to the others.\xe2\x80\x9d Id. at 76. To give one\nbranch of government ultimate control over the Constitution\xe2\x80\x99s very content\nwould be to repudiate the American approach in favor of a return to parlia\xc2\xad\nmentary supremacy. Article V, however, shows that the Constitution is\nconsistent in its rejection of governmental sovereignty.\nThe drafting history of Article V reaffirms this conclusion. The Federal\nConvention designed the amendment system so that both Congress and the\nstates played important roles. At the convention, the Framers manifested a\nmarked distrust of Congress in the amendment process. An early outline of\nthe Constitution specified that the Constitution could be amended \xe2\x80\x9cwithout\nrequiring the assent of the Natl. Legislature.\xe2\x80\x9d 1 Records Federal Convention\no f 1787 121 (Max Farrand, ed., revised ed. 1966). In supporting that provi\xc2\xad\nsion, George Mason argued: \xe2\x80\x9cIt would be improper to require the consent of\nthe Natl. Legislature, because they may abuse their power, and refuse their\nconsent on that very account.\xe2\x80\x9d Id. at 203.25 Mason reaffirmed his concern\nin the final days of the convention and argued that Article V gave Congress\ntoo much power and ability to abuse the process. 2 Records o f the Federal\nConvention o f 1787 629 (Max Farrand, ed., revised ed. 1966). Article V was\nspecifically altered by the convention to accommodate Mason\xe2\x80\x99s concern. Id.\nCommentary during the ratification debates bears out the Framers\xe2\x80\x99 inten\xc2\xad\ntion to check the power of Congress in the amendment process. Madison\nexplained in Federalist No. 39 that the amendment system balanced the\nStates and the federal government, so that the system is \xe2\x80\x9cneither wholly\nfederal, nor wholly national.\xe2\x80\x9d The Federalist No. 39, at 257 (James Madison)\n(Jacob E. Cooke ed., 1961). In discussing the provisions for calling a conven\xc2\xad\ntion upon the petition of two-thirds of the States, Alexander Hamilton states:\n[The amendments so proposed] \xe2\x80\x9cshall be valid to all intents\nand purposes, as part of the constitution, when ratified by the\nlegislatures of three-fourths of the states, or by conventions in\n\xe2\x80\x9c The Congressional Pay Amendment, dealing as it does with the power o f members o f Congress to\nincrease their salaries, is just the sort o f amendment to which Mason\xe2\x80\x99s comm ent would apply most\nreadily.\n\n103\n\n\x0cthree-fourths thereof.\xe2\x80\x9d The words of this article are peremp\xc2\xad\ntory. The congress \xe2\x80\x9cshall call a convention.\xe2\x80\x9d Nothing in this\nparticular is left to the discretion of that body [Congress].\nThe Federalist No. 85, at 593 (Alexander Hamilton) (Jacob E. Cooke, ed.,\n1961). These words are equally applicable to ratification of an amendment\nby three-fourths of the States. Discussing Article V more generally, Hamilton\nconcluded by observing that \xe2\x80\x9c[w]e may safely rely on the disposition of the\nstate legislatures to erect barriers against the encroachments of the national\nauthority.\xe2\x80\x9d Id. These statements are inconsistent with the notion that Con\xc2\xad\ngress has a general power of superintendence over the amendment process.\nCongressional promulgation is also at odds with the bulk of past practice\nin this area. As we have seen, Chief Justice Hughes in Coleman used the\n\xe2\x80\x9cspecial circumstances\xe2\x80\x9d surrounding the adoption of the Fourteenth Amend\xc2\xad\nment as a model for the only instance of congressional involvement in the\npromulgation of an amendment following ratification in more than two hun\xc2\xad\ndred years. See, e.g., Dellinger, at 400. There has never been another\n\xe2\x80\x9cconditional certification\xe2\x80\x9d of an amendment by the executive branch.26 The\nconcurrent resolution \xe2\x80\x9cpromulgating\xe2\x80\x9d the Fourteenth Amendment, adopted\nwith no substantive debate, was unnecessary and an aberration.\nThe events surrounding the adoption of the Fifteenth Amendment two\nyears later demonstrate that fact.27 Irregularities in State ratifications also\nplagued this Amendment \xe2\x80\x94 New York had attempted to rescind its ratifica\xc2\xad\ntion, see Cong. Globe, 41st Cong., 2d Sess. 1444 (1870), and two other\nStates, Ohio and Georgia, ratified the amendment only after having rejected\nit once, see Memorandum to Don W. Wilson, Archivist of the United States,\nfrom Martha L. Girard, Director of the Federal Register 6 (May 22, 1991).\n26S e e Letter to Governors o f the Several States from Thomas Jefferson, Secretary of State (M arch 1,\n1792), r e p r in te d in 2 The B ill o f Rights: A D o cu m en ta ry H istory 1203 (Bernard Schwartz, ed., 1971)\n(First through Tenth Amendments); President John Adams, Message to Congress, 7 Annals o f Cong.\n809 (1798) (Eleventh Amendment); L etter to Governors of the Several States from James Madison,\nSecretary o f State (Sept. 25, 1804) (Twelfth Amendment), cited in C onstitution A nno ta ted , at 28 n.4;\nC ertification by W illiam H. Seward, Secretary of State, 13 Stat. 774 (1865) (Thirteenth Amendment);\nC ertification o f Ham ilton Fish, Secretary of State, 16 Stat. 1131-32 (1870) (Fifteenth Amendment);\nC ertification by Philander C. Knox, Secretary of State, Act of Feb. 25, 1913, 37 Stat. 1785 (1913)\n(Sixteenth Am endm ent); Certification by William Jennings Bryan, Secretary of State, Act o f May 31,\n1913 ,3 8 Stat. 2049 (1913) (Seventeenth Amendment); Certification by Frank L. Polk, Acting Secretary\no f State, Act o f Jan. 28, 1919, 40 Stat., \xe2\x80\x9c Eighteenth Amendment to the Constitution\xe2\x80\x9d 1 (1919); Certifi\xc2\xad\ncation by Bainbridge Colby, Secretary o f State, Act of Aug. 26, 1920, 41 Stat. 1823 (1920) (Nineteenth\nA m endm ent); Certification by Henry L. Stimson, Secretary of State, Act of Feb. 6, 1933,47 Stat. 2569\n(1933) (Twentieth Amendment); Certification by W illiam Phillips, Acting Secretary of State, Act of\nDec. 5, 1933, 48 Stat. 1749 (1933) (Twenty-First Amendment); Certification by Jess Larson, Adminis\xc2\xad\ntrator o f General Services, 16 Fed. Reg. 2019 (1951) (Twenty-Second Amendment); Certification by\nJohn L. M oore, A dm inistrator of General Services, 26 Fed. Reg. 2808 (1961) (Twenty-Third Amend\xc2\xad\nm ent); Certification by Bernard L. Boutin, Administrator of General Services, 29 Fed. Reg. 1715(1964)\n(Tw enty-Fourth A m endment); Certification by Lawson B. Knott, Administrator o f General Services, 32\nFed. Reg. 3287 (1967) Twenty-Fifth Amendment), Certification by Robert L. Kunzig, Administrator of\nGeneral Services, 36 Fed Reg. 12,725 (1 9 7 1) (Twenty-Sixth Amendment).\n11 C hief Justice Hughes in Coleman briefly noted the events surrounding the ratification of the Fifteenth\nAm endm ent, but did not assign them any weight in this analysis. S e e 307 U.S. at 450 n.25.\n\n104\n\n\x0cOn February 21, 1870, Senator Williams introduced a joint resolution declar\xc2\xad\ning that the Amendment had become valid as part of the Constitution. Cong.\nGlobe, 41st Cong., 2d Sess. 1444 (1870). Shortly thereafter, the Senate\npassed a different resolution requesting that the Secretary of State inform the\nSenate which States had ratified the Amendment. Id. at 1653.\nOn March 30, 1870, Secretary of State Hamilton Fish issued a proclama\xc2\xad\ntion certifying that the Fifteenth Amendment had become valid. The\nproclamation noted the attempted rescission by New York, but did not men\xc2\xad\ntion the questions regarding the Ohio and Georgia ratifications. 16 Stat.\n1131 (1870). The Senate took no action in response to the proclamation,\nand Senator Williams allowed his earlier resolution to die. Cong. Globe,\n41st Cong., 2d Sess. 3142 (1870). There was some debate in the House\nconcerning the validity of the New York and Indiana ratifications, id. at\n2298, but ultimately the House passed a resolution declaring that the Amend\xc2\xad\nment had become a binding part of the Constitution. Id. at 5441.28 At no\ntime during the consideration of the Fifteenth Amendment did anyone in\nCongress suggest that congressional promulgation was essential to its valid\xc2\xad\nity. As the Fifteenth Amendment was adopted only two years after the\nFourteenth, the absence of such a suggestion demonstrates that the congres\xc2\xad\nsional promulgation of the Fourteenth Amendment was merely an aberration.\nIf congressional promulgation is required, Secretary Fish illegally certi\xc2\xad\nfied that the Fifteenth Amendment was part of the Constitution.29 Indeed,\nthe executive branch would have illegally certified every amendment except\nthe Fourteenth.30 If only to avoid this absurd conclusion, we must reject the\nassertion that only Congress may promulgate an amendment.\n\nIII.\nWe conclude that the Congressional Pay Amendment has been validly\nratified pursuant to the procedures set forth in Article V, and that the Archi\xc2\xad\nvist of the United States was required to promulgate the Twenty-Seventh\nAmendment pursuant to 1 U.S.C. \xc2\xa7 106b.\nTIMOTHY E. FLANIGAN\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n\xe2\x80\x9c The House Resolution also confirmed the validity of the Fourteenth Amendment. Cong. Globe, 41st\nCong., 2d Sess. 5441 (1870).\n29The experience o f the Fifteenth Amendment also refutes a modified version of Justice Black\xe2\x80\x99s thesis,\nunder which congressional certification would be required in doubtful cases. The status of the Fifteenth\nAmendment was as doubtful as that of the Fourteenth, and for the same reasons.\n30O f course, the certifications would nevertheless be binding on the courts. Se e L eser v. G arnett, 258\nU.S. 130 (1922); U n ited S ta te s v. Thom as, 788 F.2d 1250, 1253 (7th Cir.) (Easterbrook, J.), cert, d e \xc2\xad\nnied. 479 U.S. 853 (1986), cf. F ield v. C lark, 143 U.S. 649, 669 (1892).\n\n105\n\n\x0cAPPENDIX\nThe Congressional Pay Amendment had its beginnings in the ratification\nconventions of States considering the original Constitution. Several States\nproposed amendments when they ratified the Constitution. Two of these,\nVirginia and New York, included a precedent to the Congressional Pay Amend\xc2\xad\nment. 2 The Bill o f Rights: A Documentary History 844, 916 (Bernard\nSchwartz, ed., 1971) (\xe2\x80\x9cSchwartz\xe2\x80\x9d).1 North Carolina proposed amendments\non August 2, 1788, without at first ratifying the Constitution. Id. at 966,\n977. Among the amendments it proposed was a congressional pay provision\ntaken almost verbatim from Virginia\xe2\x80\x99s. See id. at 970-71. Representative\nJames Madison included Virginia\xe2\x80\x99s proposal in the resolution of amend\xc2\xad\nments he proposed to the House on June 8, 1789. 4 Documentary History o f\nthe First Federal Congress of the United States o f America 9, 10 (Charlene\nBangs Bickford and Helen E. Veit, eds., 1986) (\xe2\x80\x9c4 First Congress"). On the\nmotion of Elbridge Gerry, the proposed amendments of several States, in\xc2\xad\ncluding New York\xe2\x80\x99s congressional pay proposal, were also put before the\nHouse. Id. at 4, 19, 24.\nThere was relatively little debate on the proposed Congressional Pay\nAmendment in Congress. Madison forecast that Congress\xe2\x80\x99s power over the\ncompensation of its members was unlikely to be abused, but nevertheless\npointed out the impropriety of giving members the power \xe2\x80\x9cto put their hand\ninto the public coffers, to take out money to put in their pockets.\xe2\x80\x9d 1 Annals\nof Cong. 457 (Gales & Seaton eds., 1789). Congressman John Vining later\nechoed this sentiment: \xe2\x80\x9cThere was, to say the least of it, a disagreeable\nsensation, occasioned by leaving it in the breast of any man to set a value on\nhis own work.\xe2\x80\x9d Id. at 756-57. Another Congressman, however, thought that\n\xe2\x80\x9cmuch inconvenience and but very little good would result\xe2\x80\x9d from the amend\xc2\xad\nment. Id. at 756 (statement of Theodore Sedgwick).\nCongress approved the proposal of twelve amendments to the Constitu\xc2\xad\ntion on September 25, 1789. The Congressional Pay Amendment was\napproved with only a minor change in wording made in the Senate. See 4\nFirst Congress, at 44-46. As sent to the states for ratification, it read:\nNo law, varying the compensation for the services of the Sena\xc2\xad\ntors and Representatives, shall take effect, until an election of\nRepresentatives shall have intervened.\n\xe2\x80\x98 Virginia ratified the Constitution on June 25, 1788, after narrowly defeating a motion to propose\nam endm ents prior to ratification. See Schwartz, at 834-39. TWo days later, the convention proposed\nam endm ents, including: \xe2\x80\x9cThat the laws ascertaining the compensation of senators and representatives\nfor their services, be postponed, in their operation, until after the election of representatives immedi\xc2\xad\nately succeeding the passing thereof; that excepted which shall first be passed on the subject." Id. at\n844. N ew York ratified the Constitution and proposed amendments on July 26, 1788. Among its\nproposed am endm ents was \xe2\x80\x9cThat the Compensation for the Senators and Representatives be ascer\xc2\xad\ntained by standing Laws; and that no alteration of the existing rate of Compensation shall operate for\nthe Benefit o f the Representatives, until after a subsequent Election shall have been had." Id. at 916.\n\n106\n\n\x0c1 Documentary History o f the First Federal Congress o f the United States o f\nAmerica 208 (Linda Grant De Pauw, et al., eds., 1972) (\xe2\x80\x9c 1 First Congress")\n(reproducing entry from Appendix to Senate Legislative Journal, 1st Cong.,\n1st Sess.). C f Act of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789). The pro\xc2\xad\nposed amendments were transmitted to the eleven States that had ratified the\nConstitution, as well as to North Carolina and Rhode Island. See 4 First\nCongress, at 9, 48.\nWhen the amendments were proposed, nine States constituted the threefourths necessary for ratification of the amendments. Before any States had\nacted on the amendments, North Carolina ratified the Constitution; nine States\nstill constituted three-fourths. The Bill of Rights and the States: The Colo\xc2\xad\nnial and Revolutionary Origins o f American Liberties xxi (Patrick T. Conley\nand John P Kaminski, eds., 1992) (\xe2\x80\x9cBill of Rights and the States\xe2\x80\x9d). The\nCongressional Pay Amendment had been ratified by only four States before\nRhode Island ratified the Constitution on May 29, 1790, bringing the num\xc2\xad\nber of States in the Union to 13, three-fourths of which was ten. Before any\nmore States ratified the amendment, Vermont joined the Union, bringing the\ntotal to 14, three-fourths of which was eleven. Regardless of the time at\nwhich the \xe2\x80\x9cthree-fourths\xe2\x80\x9d requirement was determined, however, the Con\xc2\xad\ngressional Pay Amendment was never close to that total in its initial period.\nIt received only two more ratifications in 1791, for a total of six.2\nThomas Jefferson, as Secretary of State under George Washington, was\nresponsible for monitoring the States\xe2\x80\x99 actions on the proposed amendments.\nId. at xxii. His tally shows that of the thirteen original States and Vermont,\nsix ratified the amendment. Id. at xxiii (photographic reproduction of\nJefferson\xe2\x80\x99s tally). Five States rejected the amendment, three of them \xe2\x80\x9csi\xc2\xad\nlently,\xe2\x80\x9d meaning that the ratification documents made no reference to the\nCongressional Pay Amendment. Id. at xxii-xxiii. The other three States did\nnot respond: Massachusetts, Connecticut, and Georgia. Id.\nThe six States that ratified the Congressional Pay Amendment along with\nwhat is now the Bill of Rights are:\no\n\nM aryland. D ecem ber 19, 1789. 1 F irs t C o n g re ss, at 349-50 (reproducing e n try in\nS en ate Journal o f June 14, 1790).\n\no\n\nN orth C arolina, D ecem ber 22, 1789. 1 F irst C o n g re s s, at 346-47 (reproducing\nen try in Senate Journal o f June 11, 1790).\n\no\n\nS outh C arolina, January 28, 1790, 1 F irs t C o n g re ss, at 275-76 (reproducing e n try\nin Senate Journal o f April 3, 1790).\n\no\n\nD elaw are, January 28, 1790, 1 F irst C o n g re ss, at 253-54 (reproducing e n try in\nS enate Journal o f M arch 8, 1790).\n\no\n\nVerm ont, N ovem ber 3, 1791, Schw artz, at 1202-03; B ill o f R ig h ts a n d the S ta te s ,\nat xxii.\n\no\n\nV irginia, D ecem ber 15, 1791, Schw artz, at 1202.\n\n2 By contrast, the third through twelfth proposed amendments, now known as the Bill o f Rights, were\nratified by the requisite eleven States by December 15, 1791, when Virginia ratified them. See B ill o f\nR ights a n d the S ta tes, at xxii; Schwartz, at 1201-02.\n\n107\n\n\x0cThe Bill of Rights was ratified without the Congressional Pay Amend\xc2\xad\nment by five States, two of which have since ratified the Congressional Pay\nAmendment:\no\n\nN ew H am pshire ratified th e first and third through tw elfth proposed am endm ents\non January 25, 1790. 1 F ir s t C o n g re ss, a t 348-49 (reproducing entry in S enate\nJo u rn al o f June 14, 1790). T he docum ent transm itted to the C ongress indicates\nth at it \xe2\x80\x9crejected\xe2\x80\x9d the second article o f the proposed am endm ents. Id. at 348.\nN ew H am pshire subsequently ratified the C ongressional Pay A m endm ent on M arch\n7 , 1985. S e e 131 Cong. R ec. 6689 (1985); 138 C ong. Rec. S6831 (daily ed. M ay\n19, 1992).\n\no\n\nN ew Jersey ratified all but the second am endm ent on N ovem ber 20, 1789. 1 F irs t\nC o n g r e s s , at 475-76 (reproducing entry in Senate Journal o f A ugust 6, 1790).\nT h e notification transm itted to C ongress d id not m ention the second proposed\nam endm ent. Id.\nN ew Jersey subsequently ratified the C ongressional P ay A m endm ent on M ay 7,\n1992. 138 Cong. Rec. S 6831, S6846 (daily ed. M ay 19, 1992).\n\no\n\nT h e N ew York legislature ratified the first and th ird through tw elfth proposed\nam en d m ents on February 24, 1790. 1 F ir s t C o n g re ss, at 279-80 (reproducing\nen try in S enate Journal o f April 5, 1790).3 The docum ent transm itted to the\nC o n g ress indicates that it ratified all o f the proposed am endm ents \xe2\x80\x9cexcept the\nsecond.\xe2\x80\x9d Id . Although th a t docum ent d o es not m ention a form al rejection o f the\np ro p o sed am endm ent, a contem porary new spaper account reported that it w as\nrejected by a vote of 52 to 5. Schw artz, at 1178.\n\no\n\nR h o d e Island ratified all b u t the second am endm ent on June 11, 1790. S e e 1 F irst\nC o n g r e s s , at 389 (reproducing entry in Senate Journal o f June 30, 1790); B ill o f\nR ig h ts a n d th e States, a t xxii. The notification transm itted to C ongress does not\nm ention the second proposed am endm ent. 1 F irst C o n g re s s, at 389.\n\no\n\nP en n sylvania ratified all b u t the first and second proposed am endm ents on M arch\n10, 1790. 1 F irst C o n g re s s, at 260-61 (reproducing entry in S enate Journal o f\nM arch 16, 1790). The notification transm itted to C ongress does not m ention the\nam en d m en ts that were n o t ratified. Id. N ew spaper accounts indicate that the first\ntw o am endm ents were postponed for fu rth er consideration, but there is no in d ica\xc2\xad\ntion o f w hether they w ere form ally rejected. Schw artz, at 1176.\n\nMassachusetts, Connecticut, and Georgia did not notify the federal govern\xc2\xad\nment of any action on the proposed amendments.4\nFurther action to impose a constitutional limitation on congressional pay\ndid not come until 1816. During its first session, the Fourteenth Congress\npassed a law replacing its per diem pay, which had remained unchanged\nsince the first Congress, with a salary of $1500 per year. Act of Mar. 19,\n3The resolution was approved by New York\'s Council o f Revision on February 27, 1790. 1 F irst\nC o n g re ss, at 280.\n\n4 M assachusetts presented a unique case. Its legislative records indicate that it considered the am end\xc2\xad\nm ents, and agreed to ratify most. The Congressional Pay Amendment was \xe2\x80\x9crejected\xe2\x80\x9d by the M assachu\xc2\xad\nsetts Senate, Schw artz, at 1174, and was \xe2\x80\x9cnot accepted\xe2\x80\x9d by the M assachusetts House. Id. at 1175.\nH ow ever, M assachusetts did not notify the federal government of these actions. Id. at 1172. When\nSecretary o f S tate Thom as Jefferson sought such notification, he was told that the M assachusetts legis\xc2\xad\nlature had never passed the official bill ratifying the amendments. Id. at 1175. Massachusetts ultimately\nratified the Bill of Rights in 1939, as did Georgia and Connecticut. Bill o f Rights an d the States, at xxii.\n\n108\n\n\x0c1816, ch. 30, 3 Stat. 257. See also 29 Annals of Cong. 199-204 (1816). The\nCompensation Act was extraordinarily unpopular. See Henry Adams, History\no f the United States of America During the Administrations of James Madi\xc2\xad\nson 1274-76 (Library of America 1986). Immediately upon convening the\nsecond session of the Congress, a bill repealing the Act was introduced. See\n30 Annals of Cong. 10 (1816). Beyond merely a repeal of the offensive\nstatute, Senator James Barbour introduced a joint resolution proposing a con\xc2\xad\nstitutional amendment identical to the Congressional Pay Amendment in all\nbut punctuation:\nNo law varying the compensation for services of the Senators\nand Representatives shall take effect until an election of Rep\xc2\xad\nresentatives shall have intervened.\nId. at 30. See also Herman V. Ames, The Proposed Amendments to the\nConstitution o f the United States During the First Century o f its History,\nH.R. Doc. No. 353, 54th Cong., 2d Sess., pt. 2, at 34 (1897) (\xe2\x80\x9cAmes\xe2\x80\x9d).\nCongress repealed the Compensation Act, see Act of Feb. 6, 1817, ch. 9, 3\nStat. 345, but did not act on the proposed amendment.\nNevertheless, several states joined the call for such an amendment. On\nJanuary 17, 1817, the General Assembly of Kentucky proposed a constitu\xc2\xad\ntional amendment nearly identical to the Congressional Pay Amendment:\nThat no law varying the compensation of the members of the\ncongress of the United States, shall take effect until the time\nfor which the members of the house of representatives of that\ncongress by which the law was passed, shall have expired.\n1816-17 Ky. Laws 279. See also Ames, at 333. The legislatures of Massa\xc2\xad\nchusetts and Tennessee passed resolutions proposing similar amendments.\nAmes, at 34-35, 333. Tennessee\xe2\x80\x99s resolution, identical to that of Kentucky\nexcept for punctuation and capitalization, was received by the Senate and\nprinted in the Annals o f Congress although only by a narrow vote after\n\xe2\x80\x9cconsiderable debate.\xe2\x80\x9d 31 Annals of Cong. 170 (1818). Congress took no\naction on any of these proposals. The legislature of Illinois, however, passed\na resolution criticizing Kentucky\xe2\x80\x99s proposed amendment as \xe2\x80\x9cunnecessary\nand inexpedient\xe2\x80\x9d and directing Illinois\xe2\x80\x99s representatives in Congress to op\xc2\xad\npose the proposal. 1821 111. Laws 187. Illinois\xe2\x80\x99s resolution was transmitted\nto Congress. 38 Annals of Cong. 35 (1821). Vermont, Ohio and New Hamp\xc2\xad\nshire also passed resolutions opposing Kentucky\xe2\x80\x99s proposal. 1817 Vt. Laws\n100-01; 1818 Ohio Laws 202-03; 1818 N.H. Laws 165. See also Ames, at\n333. It does not appear that any of those States took action at that time to\nratify or reject the Congressional Pay Amendment proposed by the first\n109\n\n\x0cCongress, nor is there any indication whether anyone at the time considered\nthat amendment to be pending before the States.5\nIn 1822, three new amendments related to congressional salaries were\nproposed, though Congress did not act on any of them. Ames, at 35. One\nwas essentially the same as the Congressional Pay Amendment, except that\nit did not apply to Senators:\nThat no increase or diminution of the compensation to Repre\xc2\xad\nsentatives, for their services as such, shall be made by Congress,\nto have effect or operation during the period for which the\nmembers of the House o f Representatives, acting upon the sub\xc2\xad\nject, shall have been elected.\n39 Annals of Cong. 1752 (1822). Another fixed the compensation of mem\xc2\xad\nbers of Congress at the amount paid to members of the first Congress. See\nid. at 1768. The third provided that compensation for members of Congress,\nas well as the President and Vice President, would be fixed every ten years,\nafter the census, and that alterations would take effect only after the particular\nofficial\xe2\x80\x99s current term had expired. Id. at 1777-78. Again, there is no indication\nwhether those members proposing the amendments believed that the amend\xc2\xad\nment proposed by the first Congress was still pending. The brief remarks in the\nAnnals o f Congress do not address the issue. See id. at 1753, 1768.\nThe only state to take formal action on the Congressional Pay Amend\xc2\xad\nment in the 19th century was Ohio. Its General Assembly ratified the proposed\namendment on May 6, 1873. As expressed in the ratifying resolution, the\nlegal theory was straightforward: under Article V, proposed amendments be\xc2\xad\ncome valid when ratified by three-fourths of the States, and the Congressional\nPay Amendment \xe2\x80\x9cnot having received the assent of the Legislatures of threefourths of the several States is still pending for ratification.\xe2\x80\x9d 1873 Ohio\nLaws 409 (joint resolution ratifying the second article of the twelve amend\xc2\xad\nments to the Constitution submitted by the first Congress).6 It is unclear\nwhat became of Ohio\xe2\x80\x99s ratification. Although the resolution called upon the\ngovernor to transmit the ratification to the President and Congress, more than\none hundred years later, in 1985, the National Archives and Records Service\nreported that Ohio, as well as several other States, had not sent official notice\nof ratification to the federal government. Robert S. Miller and Donald O.\nDewey, The Congressional Salary Amendment: 200 Years Later, 10 Glendale\n5 Vermont had already ratified the Congressional Pay Amendment and New Hampshire had previously\nrejected it. S e e su p ra , pp. 107-08.\n\xe2\x80\x98 O hio\xe2\x80\x99s action received considerable attention early in this century, when several proposals were made\nto am end the C onstitution to impose a tim e limit on ratification for all amendments. M embers of\nC ongress supporting the proposal pointed to Ohio\'s ratification of the Congressional Pay Amendment\nas a prim e exam ple o f the consequences o f having no time limits on amendments. S e e e.g., 55 Cong.\nRec. 5556-57 (1917); 58 Cong. Rec. 5697, 5699 (1919).\n\n110\n\n\x0cL. Rev. 92, 102 (1991).7 Those States have since transmitted official notices.\nSee id.\\ 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) (Archivist\xe2\x80\x99s certifica\xc2\xad\ntion of the 27th Amendment, listing the forty states that had ratified the amendment\nand transmitting notification to the Archivist before May 18, 1992); 138 Cong.\nRec. S6835 (daily ed. May 19, 1992).\nThe controversial pay increase that provoked Ohio\xe2\x80\x99s ratification led to\nactivity in Congress as well. Just as in the early 1800\xe2\x80\x99s, several new amend\xc2\xad\nments, similar to that proposed by the first Congress, were introduced. Ames\nat 35. Congress took no action on them, however, instead repealing the pay\nincrease. Id.\nThe next action on the Congressional Pay Amendment did not come until\nMarch 3,\' 1978, when the Wyoming legislature ratified it. See 124 Cong.\nRec. 7910 (1978).8 Five years later, on April 27, 1983, Maine ratified the\namendment, 130 Cong. Rec. 25,007-08 (1984), bringing the total number of\nratifications to nine. Since then, thirty-two additonal States have ratified the\namendment, most recently Missouri and Alabama on May 5, 1992, Michigan\nand New Jersey on May 7, 1992, Illinois on May 12, 1992, and California\non June 26, 1992. See 57 Fed. Reg. 21,187, 21,188 (May 19, 1992)\n(Archivist\xe2\x80\x99s certification); 138 Cong. Rec. E2237 (daily ed. July 24, 1992)\n(California). Thus, forty-one States have now ratified the amendment, three\nmore than three-fourths of the fifty States.\nSome States that have ratified recently have elaborated the legal basis for\ntheir actions in their ratifying resolutions. Fourteen States mentioned the\nSupreme Court\xe2\x80\x99s decision in Coleman v. Miller, 307 U.S. 433 (1939), in\ntheir ratifying resolutions. Many used language to this effect:\nWhereas, the legislature of the state of New Mexico acknowl\xc2\xad\nedges that the article of amendment to the constitution of the\nUnited States proposed by resolution of the First Congress on\nSeptember 25, 1789, may still be ratified by states\xe2\x80\x99 legislatures as\na result of the ruling by the United States supreme court in the\nlandmark case of Coleman v. Miller, 307 U.S. 433 ( 1 9 3 9 )....\n132 Cong. Rec. 3956 (1986) (New Mexico). Accord 134 Cong. Rec. 14,023\n(1988) (Arkansas); 133 Cong. Rec. 11,618-19 (1987) (Montana); 135 Cong.\nRec. 15,623 (1989) (Nevada); 135 Cong. Rec. 20,519-520 (1989) (Oregon);\n135 Cong. Rec. 11,900-01 (1989) (Texas); 136 Cong. Rec. S9170 (daily ed.\nJune 28, 1990) (Kansas); 137 Cong. Rec. S I0,949 (daily ed. July 25, 1991)\n(North Dakota); 138 Cong. Rec. S6845 (daily ed. May 19, 1992) (Alabama).9\nOther States referred to Coleman without expressly tying it to their power\n7 It should be noted that notice o f ratification by at least some of those States had been previously\nreceived by Congress and published in the Congressional Record. See 124 Cong Rec. 7910 (1978)\n(Wyoming); 130 Cong. Rec. 25,007-08 (1984) (Maine).\n\'T h e Governor of Wyoming signed the ratification on March 6, 1978. Miller and Dewey, 10 Glendale\nL. Rev., supra, at 100.\n\xe2\x80\x99 For ease of reference, we have cited to the resolutions as reprinted in the Congressional Record,\nContinued\n\n111\n\n\x0cto ratify the Congressional Pay Amendment, and also noted the lack of any\ntime limit either generally in Article V or specifically in the Congressional\nPay Amendment as proposed to the States. For example, Colorado, which on\nApril 22, 1984, became the tenth State to ratify the amendment, states:\nWhereas, Article V of the United States Constitution does not\nstate a time limit on ratification of an amendment submitted\nby Congress, and the First Congress specifically did not provide\na time limit for ratification of the proposed amendment; and\nW hereas, The United States Supreme Court has ruled in\nColeman v. Miller, 307 U.S. 433 (1939), that an Amendment\nto the United States Constitution may be ratified by states at\nany time, and Congress must then finally decide whether a\nreasonable time had elapsed since its submission when, in the\npresence of certified ratifications by three-fourths of the States,\nthe time arrives for the promulgation of the adoption of the\namendment, . . . .\n138 Cong. Rec. S6837 (daily ed. May 19, 1992) (Colorado). Accord 135\nCong. Rec. 5821 (1989) (Iowa); 135 Cong. Rec. 14,147 (1989) (Minnesota);\n138 Cong. Rec. S 14,974 (daily ed. Sept. 24, 1992) (Missouri); 138 Cong.\nRec. S8387 (daily ed. June 17, 1992) (Illinois).\nOther States have not cited Coleman, and instead have emphasized, as\nOhio did, the absence of a time limit in the Congressional Pay Amendment\nproposal. For example, Wyoming, the first State to ratify the amendment in\nthis century, stated in its ratifying resolution:\nWhereas the Congress of the United States, upon proposing\nthat amendment, did not place any time limitation on its final\nadoption . . . .\n1978 Wyo. Sess. Laws. 427. Accord 134 Cong. Rec. 9525 (1988) (Georgia);\n134 Cong. Rec. 8752 (1988) (West Virginia); 135 Cong. Rec. 14,816 (1989)\n(Alaska); 136 Cong. Rec. S10.091 (daily ed. July 19, 1990) (Florida). See\nalso 133 Cong. Rec. 24,779 (1987) (Wisconsin) (noting additionally that\n\xe2\x80\x9cthe congress of the United States has the power to impose reasonable time\n\xe2\x80\x99 (....continued)\nalthough such publication has no independent legal consequence. The States generally transmit certified\ncopies o f the resolutions directly to the Archivist of the United States. The resolutions, except for\nC alifo rn ia\xe2\x80\x99s, are also reprinted together in the Congressional Record. See 138 Cong. Rec. S6831-46\n(daily ed. M ay 19, 1992). A tabulation by the Archivist o f the dates o f ratification can be found in the\nCongressional Record. Id. at S6831.\n\n112\n\n\x0climits for the ratification of proposed amendments\xe2\x80\x9d). Wisconsin\xe2\x80\x99s ratification\nis noteworthy also because it is the only one that provides a rationale for the\nauthority to ratify an amendment that was proposed before the State entered\nthe Union:\nWhereas, the congressional pay changes amendment was val\xc2\xad\nidly ratified by the state of Vermont on November 3, 1791,\neven though Vermont had not been one of the original 13\nstates to which the proposed amendment had been submitted,\nand had not yet achieved statehood when the amendment was\nsubmitted . . . .\nId.\nFinally, many States mention neither Coleman nor time limits, nor allude\nto the fact that the amendment is approximately 200 years old. See 130\nCong. Rec. 25,007-08 (1984) (Maine); 1985 S.D. Laws 27 (South Dakota);\n131 Cong. Rec. 6689 (1985) (New Hampshire); 131 Cong. Rec. 9443 (1985)\n(Arizona); 131 Cong. Rec. 27,963 (1985) (Tennessee); 131 Cong. Rec. 27,96364 (1985) (Oklahoma); 132 Cong. Rec. 8284 (1986) (Indiana); 132 Cong.\nRec. 12,480 (1986) (Utah); 133 Cong. Rec. 23,571 (1987) (Connecticut);\n134 Cong. Rec. 18,760 (1988) (Louisiana); 135 Cong. Rec. 14,572-73 (1989)\n(Idaho); 138 Cong. Rec. S7026 (daily ed. May 20, 1992) (Michigan); 138\nCong. Rec. S6846 (daily ed. May 19, 1992) (New Jersey); 138 Cong. Rec.\nE2237 (daily ed. July 24, 1992) (California). The Idaho legislature\xe2\x80\x99s resolu\xc2\xad\ntion was based, pursuant to state law, on a state referendum on the amendment.\n135 Cong. Rec. 14,572-73 (1989).\nThe Archives has indicated that it has received no rescissions of previous\nratifications of the Congressional Pay Amendment, nor have we found any\npublic record of rescissions.10\n\n10 Several of the States that have ratified the amendment, however, had previously rejected it. To the\nextent reflected in documents transmitted to the federal government. New Hampshire had expressly\nrejected the amendment, while New Jersey had simply failed to ratify it when ratifying the other pro \xc2\xad\nposed amendments. In 1817, Vermont, which had ratified the amendment in 1791, passed a resolution\nopposing a similar amendment proposed by Kentucky, but the resolution specifically refers to the K en\xc2\xad\ntucky, proposal and does not purport to rescind Vermont\'s earlier ratification of the Congressional Pay\nAmendment. See supra, p. 109. Oklahoma\'s ratification purports to have an expiration date \xe2\x80\x94 D ecem \xc2\xad\nber 31, 1995 \xe2\x80\x94 pursuant to state law. 131 Cong. Rec. 27,964 (1985).\n\n113\n\n\x0c'