The Twenty-Seventh Amendment and Congressional Compensation Part 6: Implications for the Article V Amendment Process

Legal Sidebari

The Twenty-Seventh Amendment and
Congressional Compensation Part 6:
Implications for the Article V Amendment
Process
March 14, 2023
This Legal Sidebar post is the last in a six-part series that discusses the Twenty-Seventh Amendment to
the Constitution, which prevents laws that modify Members of Congress’s compensation from taking
effect until after an intervening congressional election. During the 117th Congress, the Sergeant at Arms
fined three Members of the House of Representatives for entering the House Chamber without wearing
masks during the COVID-19 pandemic. The Members declined to wear masks to protest a House
resolution and policy requiring them to do so. Because the fines were deducted from their salaries without
an intervening House election, the Members challenged the mask policy in federal court as a violation of
the Twenty-Seventh Amendment. In Massie v. Pelosi, a D.C. federal district court judge dismissed the
Members’ complaint, determining that the mask policy was consistent with the Twenty-Seventh
Amendment because the disciplinary fines did not modify the Members’ annual salaries designated in the
Ethics Reform Act of 1989. (In August 2022, a federal judge dismissed a similar challenge to fines for
violating rules on security screening.)
As a result of these federal district court decisions, which have been appealed to the U.S. Court of
Appeals for the D.C. Circuit, Congress may be interested in the history and scope of the most recently
ratified amendment to the Constitution. Additional information on this topic is published in the
Constitution Annotated: Analysis and Interpretation of the U.S. Constitution.
Implications for the Article V Amendment Process
The unusual circumstances of the Twenty-Seventh Amendment’s ratification more than 200 years after its
proposal has raised important questions about Article V’s process for amending the Constitution. One
question is whether there is an implicit time limit on an amendment’s ratification when Congress does not
specify one in the amendment’s text or the accompanying joint resolution. Although the Supreme Court in
Dillon v. Gloss opined that, regardless of whether Congress specifies a deadline, the time period for
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ratification must be “reasonable,” it appears this language was subsequently regarded as nonbinding dicta
in Coleman v. Miller.
Some scholars have argued, consistent with the dicta in Dillon, that Article V requires a
“contemporaneous consensus” among Congress and the states in favor of an amendment, but other
commentators disagree. The National Archivist’s certification of the Twenty-Seventh Amendment more
than 200 years after it was proposed suggests that, if Congress does not specify a deadline for ratification,
an amendment remains pending before the states until the requisite number of states have ratified it.
Another question that emerged from the Twenty-Seventh Amendment’s ratification is whether Congress
has any role to play in determining whether an amendment has been ratified. After the National Archivist
certified the Twenty-Seventh Amendment as part of the Constitution, the House and Senate each passed a
concurrent resolution recognizing that the Amendment had been adopted. In Coleman v. Miller, a 1939
case involving the unratified Child Labor Amendment, the Supreme Court indicated that Congress might
play a role in “promulgating” an amendment, noting that Congress had adopted a concurrent resolution
recognizing that the states had ratified the Fourteenth Amendment after the Civil War. However, the Court
also noted the unique circumstances surrounding the Fourteenth Amendment’s ratification. For instance,
three southern states that previously rejected the Amendment had constituted new governments at
Congress’s direction as a result of Reconstruction by the time they ratified it. Thus, the Court’s ruling in
Coleman would not appear to have definitively resolved questions about Congress’s role in the
ratification process. Moreover, since Coleman, some commentators have expressed doubts that Congress
has any constitutional role in determining whether the states have ratified a proposed constitutional
amendment.

Author Information

Brandon J. Murrill

Legislative Attorney




Disclaimer
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