The First Freedom of the First Amendment is the Freedom of Religion. The Right to Bear Arms is famously in the Second Amendment. The American Bill of Rights has an almost majestic quality by being composed of ten amendments, recalling the structure of the Ten Commandments. But the 1789 Congress submitted twelve amendments drafted by James Madison to the states. Ten were ratified in 1791. The first two were not ratified at the time.
It was perhaps lucky. Freedom of Religion would be as important if it appeared in the Third Amendment, though it might not sound as important as it does as the first right of the First Amendment. The Right to Bear Arms would be just as crucial, but might have lesser stature as the Fourth Amendment. Besides, the two unratified proposals did not relate to citizen rights at all,[1] and the name Bill of Rights would not fit as nicely.
A Constitutional Question for “Jeopardy”
The second of the twelve proposed amendments did become part of the Constitution and the answer to a great constitutional trivia question. It set the record for longest time period from proposal to ratification: 202 years, 7 months and 12 days. In doing so, it became the Constitution‘s Twenty-Seventh Amendment.
1789 Proposal to Limit Congressional Pay Raises
The 1789 Article The Second[2] was sent to the states to act as a restraint on Congress in setting its own pay. It was known by various names, including the “Congressional Compensation Amendment of 1789”, the “Congressional Pay Amendment”, and the “Madison Amendment”. The proposal’s text was simple:
“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened”
Early Ratification History of the “Congressional Pay Amendment”
The Twenty-Seventh Amendment was submitted to the states on September 25, 1789. It was ratified first by Maryland on December 19, 1789, just less than three months after it was proposed. From 1789 to 1791, the amendment was ratified by the legislatures of only six states—Maryland, North Carolina, South Carolina, Delaware, Vermont and Virginia. There were 13 states and 10 were needed for ratification.[3] After Virginia ratified on December 15, 1791 nothing happened for more than 80 years.
In 1873 the amendment was ratified by Ohio.[4] Ohio ratified to protest a congressional pay raise that was made retroactive.[5] Wyoming ratified in 1978 also as a protest. That was all the action on the Congressional Pay Amendment from 1789 to 1982.
Proposed During Era of Citizen Legislators, Ratified During Era of Professional Politicians
The terms of the proposal meant that no sitting Congress could raise its own pay. If Congress were to give itself a raise it would not take effect until after an election. Voters would be in a position to judge if their representative deserved a raise.
The amendment was proposed at a time of citizen legislators,[6] long before the current system of career politicians with safe districts many of whom may vote for future raises confident they will benefit.
University of Texas Student Gregory Watson Revives 200 Year Old Proposal
In 1982, University of Texas sophomore Gregory Watson was working on a paper for a government class about the failed Equal Rights Amendment (ERA). During his research he learned there was an unratified amendment pending. Mr. Watson changed the paper’s subject to the Pay Amendment. The paper’s conclusions were:
1. The amendment could still be ratified since it carried no deadline for ratification
2. The amendment should be ratified as good policy.
A Grade of “C” No Deterrence in Moving the Amendment Forward
Mr. Watson received a “C” on the paper that set Watson on a journey that changed the Constitution. His instructor, Sharon Waite, considered the conclusions impractical and irrelevant to modern times.[7]
Undeterred by the grade, Mr. Watson started a letter writing campaign to state legislatures urging the ratification of the amendment. His first success came in Maine in April, 1983. Over the next years, thanks to Watson’s tenacity, more states ratified until on May 5, 1992 Alabama and Missouri ratified. In the over 200 years since the amendment was proposed, Kentucky’s 1792 ratification had been forgotten. As a result, Michigan’s ratification on May 7, 1992 is recorded as the 38th ratification, the number needed to amend the Constitution with 50 states.
The story from Madison to Watson left the Constitution with the Bill of Rights at the elegant number of ten, religion being the prominent first freedom, and a truly American tale of a college student who changed the Constitution.
[1]In the group of twelve submitted to the states, the proposed Article The First contained a change in required representation of the House of Representatives. It addressed an organizational aspect of government, not a recognition of either a civil or natural right. It was not ratified, and technically remains alive for ratification.
[2]This was the title under which the “Congressional Pay Amendment” was sent to the states.
[3]The Constitution’s Article V requires ratification of three-fourths of the states for an amendment to be adopted.
[4]Curiously, Kentucky had ratified the Pay Amendment in 1792, and it seems as though everyone forgot about it.
[5] In 1873 Congress increased its salary from $5,000 a year to $7,500 and made the increase – retroactive for two years. The reality was to give each member a $5,000 bonus. Public reaction to the “Salary Grab”, forced Congress to repeal the salary increase.
[6]For the first forty years under the Constitution, it was typical that about half the members of Congress did not seek re-election. This fit well with the idea of a citizen legislator that would contribute service to the country and then return to private life. Since the early 20th Century, nearly 90% of House members have sought re-election. Congressional Careers: Service Tenure and Patterns of Member Service, 1789-2013.
[7]John Dean, former counsel to President Nixon of Watergate fame, relates Watson’s odyssey in The Telling Tale of the Twenty-Seventh Amendment. The story is also among the tales of citizen activism in Steven Frantzich’s Citizen Democracy: Political Activists in a Cynical Age.
[…] two were unratified. The second proposed amendment was ultimately ratified in 1991, becoming the 27th Amendment to the Constitution. (Some have argued the Ninth Amendment’s purpose to be an expression of […]