1993/12/01 by Michael Stokes Paulsen · 1 citation
Social Sciences · Economics, Econometrics and Finance · #Legal Systems and Judicial Processes #Law, Rights, and Freedoms #Legal and Constitutional Studies #Amendment #Constitutional amendment #Law #Political science #First amendment #Constitution #Supreme court
paper · doi:10.2307/797083
openalex publication_date 1993/12/01 · openalex created_date 2025/10/10 · openalex updated_date 2026/04/04
V understandable; institutional self-interest probably served to reinforce instinctive first reaction. 7Somewhat more surprising was the manner in which several legal scholars breezily joined in the politicians' initial reaction.Duke University's Walter Dellinger confidently proclaimed that it was "perfectly clear this amendment died for lack of action."Two hundred and two years, Dellinger assured, "is not a close call.Sometime in the past two centuries this became a dead letter."'"Professor A.E. Dick Howard of the University of Virginia was reported as saying, "'I just can't imagine that Madison and the others who were there would say 'It doesn't matter how long it takes [to ratify].'I think they would consider it foolish."" 9Yale Law School Professor Paul Gewirtz also asserted that there is an "'implicit time limit"' on all amendments. 20 The key premise on the road to the "dead letter" or "implicit time limit" conclusion is the assertion that a "contemporaneous consensus" at (or around) the time of proposal and ratification (and a relatively short period of time between those two events) is a condition of a constitutional amendment's (reporting statement of Speaker Foley questioning validity of Twenty-seventh Amendment); Bill McAllister, Madison's Remedy May Ignite Hill Pay Dispute: Congressional COLAs Are Focus of Controversy as 27th Amendment Is Formally Proclaimed, WASH.POST, May 19, 1992, at A17 [hereinafter McAllister, Madison's Remedy] (reporting that Rep. Edwards had decided to cancel planned hearings on validity of '1\venty-seventh Amendment and that Edwards, along with Speaker Foley "had contended that 'precedent and good sense require the states' approval of an amendment to be contemporaneous,' not spread over two centuries"); Paul Horwitz, Archivist Will OK Madison's Amendment, ROLL CALL, May 14, 1992 (reporting that Rep. Edwards had expressed doubts that amendment met contemporaneity requirements and had introduced a bill calling for the eight states that ratified before 1983 to hold new votes).17.It is unclear whether the congressional leadership's quick about-face was prompted so much by persuasive legal argument as by assessment of the political consequences of being seen as opposed to an amendment limiting Congress' ability to vote itself pay raises, in an election year marked by extraordinary hostility toward Congress.See, e.g., 138 CONG.REc.S6830 (daily ed.May 19, 1992) (statement of Sen. Byrd expressing his view that the Twenty-seventh Amendment should be approved by Congress, notwithstanding his general view that "[iun most circumstances ... a lapse of this length would be too great to sustain ratification of an amendment"); McAllister, Madison's Remedy, supra note 16, at A17 (reporting that Rep. Edwards cancelled his planned hearings on validity of Twenty-seventh Amendment because, as explained by an aide, "'No one up here has time for academic exercises."').The year 1992 set a postwar record for retirements in the House of Representatives ( 65) and a fortyfour year record in total House turnover (110).John R. Crawford, The New Class: More Diverse, Less Lawyerly Younger House Freshman Profiles, CONG.Q. WKLY.REP.SPECIAL REP., Nov. 7, 1992, at 7, 21 (supp.to vol.50, no.44).The Senate also had a large turnover of twelve members.Id. at 13.It was in the midst of this turbulent political atmosphere that Congress considered the validity of the Twenty-seventh Amendment.The Senate decided to "accept" the amendment by a vote of 99-0.138 CONG.REC.S6948 (daily ed.May 20, 1992).The House decided to "accept" the amendment by a vote of 414-3.138 CONG.REC.H3505 (daily ed.May 20, 1992).It would seem unlikely that only three members of Congress either disagreed with the assertion that an amendment may be valid notwithstanding a two-century delay in ratification or thought that Congress has power to validate or refuse to validate such a constitutional amendment but should not approve the Twenty-seventh Amendment.Surely, political pressures account for the enormity of the vote in favor of the resolution approving the amendment.18.