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Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Amendment XXVII

 

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

Congress is required by Article I, section 6 of the Constitution to determine its own pay.  Prior to 1969, Congress did so by enacting stand-alone legislation.  From 1789 through 1968, Congress raised its pay 22 times using this procedure.  Initially members were paid per diem.  The first annual salaries, in 1815, were $1,500.  By 1968, pay had risen to $30,000.  Since 1969 two other methods may also be used to increase the pay of members: automatic annual adjustments and a commission process.  By 2009, the annual salary of Congressmen and Senators had risen to $174,000.  So, even allowing for inflation, Congress has not demurred in paying itself well. The issue of constitutional constraints over the effecting of pay increases, therefore, is no minor matter.

The Twenty-seventh Amendment prohibits any law that changes – increasing or decreasing – the salary of members of the United States Congress from taking effect until the next two-year term of office for the Representatives.  This allows members of Congress to reflect on potential voter rage before dipping into the pockets of their taxpayer-electors.  It is the most recent amendment to the United States Constitution, ratified in 1992, just shy of 203 years after its initial submission in 1789.

The long history behind the Twenty-seventh Amendment is curious and unprecedented.  Its origins lie in very early suggestions from two founding states.  During the 1788 North Carolina and Virginia Conventions – called to consider the original Constitution that emerged from Philadelphia – wordings almost identical to those ratified in 1992 were requested of Congress.

Representative James Madison presented this proposed amendment to the House of Representatives in 1789.  It became the second of the twelve Constitutional amendments originally submitted by the 1st United States Congress for ratification by the states on September 25, 1789.  The last 10 of these would be ratified as the so-called Bill of Rights by December 15, 1791.

The proposed compensation amendment did not fare well in the hands of the states.  Between 1789 and 1791, it was ratified by the legislatures of only six states – Delaware, Maryland, North Carolina, South Carolina, Vermont and Virginia – out of the ten states then required by the Constitution.  As more states entered into the union, so the ratification threshold slowly increased under the three-quarters rule.  The proposed amendment was then largely ignored for the better part of a century.

Ohio was the only additional state to approve the amendment over that time-period, when its General Assembly voted in favor in 1873.  This ratification vote was a method of protesting the so-called Salary Grab Act of that year, providing not only for a substantial Congressional pay raise, but making that pay raise retroactive.  Almost another century would then pass until the proposed amendment was ratified by Wyoming in 1978, once again as a protest against another outrageous Congressional pay increase.  The numbers required for ratification, however, remained painfully short of those required.

Young students following this invaluable educational program should be interested to note that the issue was brought to the attention of the public once again by a person very like you.  In 1982, Gregory Watson, a twenty-year-old undergraduate at the University of Texas at Austin, wrote a term paper arguing the case for ratifying the amendment.  For this contribution, Watson received a ‘C’ grade from his professor.  Note that a ‘C’ grade in 1982, prior to the grade inflation that would follow, was an entirely respectable, though not a spectacular, evaluation.

Undeterred by this modest grade, Watson embarked on a one-man campaign for the amendment’s ratification.  From his home in Austin, he wrote letters to state legislators across the country, typing each one out separately on an electric typewriter.  Fortuitously his missives arrived on the desks of elected representatives, many of whom were confronting voter rage about their own budget-busting pay increases.  As symbolic gestures, primarily to immunize themselves from such voter alienation, state legislatures began to ratify the amendment, rationally calculating that the requisite threshold of thirty-eight states would never be achieved.

Their expectations turned out to be misplaced.  The tally of ratifying states began to rise.  Maine signed off first (1983), followed by Colorado (1984).  Then the ratifications began to flood, as the dam burst its banks.  Five states followed in 1985, three more in 1986, four more in 1987, three more in 1988, seven in 1989, and two in 1990.  Now the amendment was close, and the numbers slowed, as ratification became a real possibility.  North Dakota slipped across the line in 1991, apparently as the 35th state to ratify.  Under the close scrutiny of a watchful public, Alabama and Missouri surrendered on May 5, 1992.  Michigan broke the log-jam two days later, apparently providing the crucial 38th vote.

It would later be discovered that the Kentucky General Assembly had actually ratified all twelve amendments during that state’s initial month of statehood, making Missouri the 38th state to ratify.  The official record of the federal government, nevertheless, still recognizes Michigan as the 38th state to ratify.

Because the Twenty-seventh amendment had taken more than 202 years to ratify, a few self-seeking members of Congress challenged its validity.  Under the U.S. Supreme Court’s landmark decision in Coleman v. Miller, 307 U.S. 433 (1939), any proposed amendment that has been submitted to the states for ratification and that does not specify a ratification deadline may be ratified by the states at any time.  In Coleman, the Supreme Court further ruled that the ratification of a constitutional amendment is political in nature.  It cannot be assigned to the judiciary for oversight.

On May 18, 1992, the Twenty-seventh amendment was officially certified by Archivist of the United States, Don W. Wilson.  On May 19, 1992, it was printed in the Federal Register, together with the certificate of ratification.  In so doing, the Archivist had acted under statutory authority granted to his office by the Congress under Title 1, section 106b of the United States Code.

Immediately, Tom Foley (Democrat), Speaker of the House of Representatives, called for a legal challenge and Senator Robert Byrd (Democrat) of West Virginia scolded Wilson for certifying the amendment without waiting for Congress to scrutinize its validity.  The Archivist held his ground and on May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent first established regarding ratification of the Fourteenth Amendment, each house of the 102nd Congress passed a version of a concurrent resolution agreeing that the amendment was validly ratified despite the 202 years that it had taken.  Interestingly, the two versions of the resolution were never reconciled by the entire Congress.

From the perspective of public choice, difficulties in ratifying the Twenty-seventh amendment are understandable. The Federalists recognized from the outset the existence of a fundamental problem that over-shadows any constitutional or compound republic: who guards the guardians?  It is an evident fact of life that $100 bills are rarely left lying on the sidewalk.  If the representatives of the people can vote moneys into their own pockets without penalty, the expectation is that they will gladly so do.

What is true for the federal goose is equally true for the state gander.  So state politicians, called upon to constrain their federal counterparts, unless hard-pressed by their own voters, will not willingly put a money-bags constraint around necks that quickly might metamorphose into their own.  The more highly remunerated a state’s legislators are, the less likely they are to vote the federal ratification into law.  Massachusetts, New York and Pennsylvania have not ratified the Twenty-seventh amendment.  We do not need to strain our little grey cells to understand why this is so!

Even with the Twenty-seventh amendment in place, politicians find wiggle room around it in the form of annual cost-of-living adjustments (COLAs).  COLAs have been upheld against legal challenges based on the Twenty-seventh amendment.  In Boehner v Anderson 30 F.3d 156 (D.C. Cir, 1994) the United States Court of Appeals for the District of Columbia Circuit ruled that the Twenty-seventh amendment does not impact on annual COLAs.  In Schaffer v. Clinton 240 F.3d.876 (10th Cir. 2001) the United States Court of Appeals for the Tenth Circuit ruled that receiving such a COLA does not grant members of Congress standing in federal court to challenge that COLA.  The Supreme Court refused to grant certiorari in either case, and so has never ruled on those legal precedents.

Why should it not surprise us that the federal courts are turning a blind eye to Congressional maneuvers around the Twenty-seventh amendment?  Once again, public choice saves us from straining those little grey cells.  Federal salaries are related directly to Congressional salaries, by Congressional legislation.  It is a rare judge or justice who is prepared to challenge a maneuver that puts money directly into his or her own pocket.

The Founders strove mightily to protect the People from the potential predations of their own representatives.  Ultimately, however, only the People can protect themselves by exercising eternal vigilance at the ballot box over the behavior of the agents that they dispatch to and from Washington.

It is surely appropriate that those who guard the guardians should be the People in whose interest the Founders crafted such a beautiful Constitution, designed to protect their lives, liberties, and properties, and to allow them to engage in the pursuit of happiness as they individually define that glorious goal.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.[1]

The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . .  which surround the roof tree of every householder . . . .”[2] But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.[3]

Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155.[4] But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.[5]

As time drew on, other efforts to quell quartering fell well short of success.[6] The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes.[7] By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”

But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering.[8] In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .”[9] James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.[10]

In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.”[11] The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.

The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”[12]

Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.[13]

After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.

Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:

“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”[14]

The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.

But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:

“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”[15]

Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state.[16] Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.

The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.[17]

As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”[18] Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.

Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting.[19] After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”[20]

The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states.[21] The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.

The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states.  Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom[22], yet the question still lacks a definitive answer.

Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.


[1] This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”

[2] Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.

[3] Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.

[4] English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)

[5] Fields & Hardy supra note 3 at 403

[6] The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.

[7] Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127

[8] Fields & Hardy supra note 3 at 403 – 405

[9] Great Britain. Statutes of Great Britain. London: , 1950. Print.

[10] Bell supra note 2 at 123

[11] Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980

[12] Fields & Hardy supra note 3 at 417

[13] Id at 417-18

[14] The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217

[15] Id

[16] Fields & Hardy supra note 2 at 424

[17] Kurland & Lerner supra note 14 at 217-18

[18] Id at 218

[19] Bell supra note 2 at 136

[20] Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from http://memory.loc.gov/ammem/amlaw/lwsllink.html. Internet; accessed 22 May 2011.

[21] Bell supra note 2 at 137

[22] Id at 141-142

 

Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.