The amendment's eventual ratification, after two centuries of procedural limbo, was thanks to a 19-year-old college student at the University of Texas at Austin, who came across the old proposal in a library book while doing research for a class assignment.
"I just felt this kind of energetic sensation physically come over me, as if holding that book I was holding political lightning in my hands," says former student Gregory Watson, now 55 years old. After discovering Madison's proposal, Watson set out on a mission to finally get it ratified by the necessary three-quarters of state legislatures across the country.
Watson's quest is the subject of the seventh episode of The Washington Post's "Constitutional" podcast. In addition to Watson, U.S. Senate Historian Betty Koed appears on the episode to discuss the history of this amendment's unlikely revival — and what it tells us about the benefits and flaws of our constitutional system.
Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple Podcasts, Stitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham
Transcript of "Episode 07: Congress and citizens"
Lillian Cunningham: In 1982, Gregory Watson was an undergraduate student at the University of Texas at Austin.
Gregory Watson: And I was enrolled in an American government course, and the assignment was given to us to write a paper about a governmental process.
I was in the library downtown, here in Austin, and I was in the stacks looking at books about the U.S. Constitution.
Cunningham: He pulled a book off the shelf, thumbed through its pages, and came across a chapter on unratified amendments. That is --
Watson: Amendments that Congress had proposed to the states for ratification
Cunningham: But that not enough states ever approved to become part of the Constitution.
Watson: And the one that really jumped off the page at me had been passed by Congress in 1789.
Watson: No law varying the compensation for the services of the senators and representatives shall take effect until an election of representatives shall have intervened.
Cunningham: Translation: Congress can’t just give itself an immediate pay raise.
Watson: And I thought, well my goodness, this makes perfect sense.
Cunningham: Watson decided to write his paper about how this proposed amendment was not just important -- it also wasn’t really dead. It could still be ratified if enough states got behind it.
Watson: So I wrote the paper and I put a lot of tender loving care into it, and I turned it in and I got it back a few days later with a C on it. And that made me very angry.
Cunningham: So he went to his professor and appealed the grade.
Watson: And a few days after that, she returned to the classroom and kind of physically tossed it at me and said “no change” and walked away. And I decided: Well, I'm going to get that thing ratified.
Cunningham: I’m Lillian Cunningham with The Washington Post, and this is Constitutional.
Cunningham: When the framers created the U.S. Constitution, they had a feeling that it would need to be changed and updated over time. That’s why, in Article 5, they outlined the steps required to amend it.
Either two-thirds of the states need to propose holding another constitutional convention (which has never happened). Or, the standard path, which is that two-thirds of the House and two-thirds of the Senate have to pass a proposed change in Congress. And then: Three-quarters of the states have to ratify, or sign off, on that change in order for it to become an official amendment to the Constitution.
Betty Koed: That’s a very big hurdle to get across.
Cunningham: This is Betty Koed, the U.S. Senate historian.
Koed: We've had more than 11,000 constitutional amendments proposed since 1789, of which only 27 have gained ratification. At any given moment, there are hundreds of constitutional amendments proposed and they range from a variety of issues -- from, you know, control of Congress to state elections to presidential terms to abolishing the Electoral College. I mean there's all sorts of them out there. The process is very difficult.
Cunningham: It’s also pretty unclear. The framers wrote those basic amendment instructions into the Constitution, but they left a lot of questions unanswered. Could there be time limits set on ratification? If so, is there a way to override those deadlines? What happens if a state ratifies an amendment but then changes its mind? What happens if a state doesn’t ratify an amendment and then changes its mind?
These questions would spring up throughout our history as new amendments were proposed, under new circumstances. They also sprang up when a very old proposal caught the eye of a 19-year-old student, flipping through faded pages in a library.
That proposal, about congressional pay, was initially designed by James Madison back in 1789. It was supposed to be the 2nd Amendment to the Constitution. And its long path to ratification since then begs the question: How well has our amendment process helped us chart the way toward a more perfect union?
Now, when the framers designed the Constitution with the ability to be updated, they didn’t just think, “Oh, maybe one day in the very distant future that could be useful.” No, they thought: “We might have to change this document almost immediately.”
Koed: James Madison, he knew very well that in order to get the Constitution ratified, they had to make some promises to the states about things that were left out of the Constitution. And those promises essentially became what we know as the Bill of Rights.
Cunningham: The Bill of Rights is the collective name for the first 10 changes, or amendments, to the Constitution -- the 1st Amendment, freedom of speech; the 2nd Amendment, the right to bear arms; and so on.
These hadn’t made it into the original document, but several of the states said: We won’t sign off on this Constitution unless you promise to amend it as soon as possible to include these protections. So, James Madison took up that task. He drafted a bunch of proposed amendments, and he put them forward during the first session of Congress, where he was a representative.
Koed: But originally this collection of resolutions that Madison introduced were more than what we now have in the Bill of Rights. In fact, in August of 1789, the House passed a collection of 16 proposed amendments to the Constitution. The Senate consolidated those 16 down into 12 proposed amendments, and those 12 amendments went to the states for ratification.
Cunningham: But, only 10 of those were adopted in 1791. The other two didn’t get sign-off from enough states.
Koed: One of the amendments that got left out was this amendment about congressional pay and whether or not Congress could raise its own pay.
Cunningham: The other was a proposal for how to calculate the number of representatives we should have in the House, based on population.
Koed: The Bill of Rights had to be very concise, and they wanted it to be pared down to the most important expressions of constituent rights. And so whether or not Congress could raise its salary did not seem to be on par with our ability to have the freedom of speech or freedom of religion. And so the two lesser amendments just kind of got dropped.
Koed: Now, it's interesting, because the issue of congressional pay has been a thorn in the side of Congress from the very beginning. In fact, at the Constitutional Convention, the framers of the Constitution didn’t want to touch it. And so they left it to the first federal Congress to decide how it would pay itself.
Cunningham: And the Congress decided to pass a salary compensation law that paid representatives at a rate of $6 dollars a day for every day they were in session, which was about four or five months a year.
Koed: And that's the way it stayed for the next 25 or so years, until Congress boldly passed the Compensation Act of 1816, which caused a huge public uproar.
Cunningham: That law changed their pay from $6 a day to an annual salary of $1,500 a year, which was a lot of money back then.
Koed: Voters and constituents were burning members of Congress in effigy, they were attacking them on the streets, they were throwing stones at them. One poor guy in Kentucky was dragged into the river and nearly drowned. The public outroar was tremendous.
And no less than Thomas Jefferson, who was at that time retired and living at Monticello, predicted that at the next election the entire Congress would be thrown out by the voters in the state legislatures -- and that almost happened. In the 1816 election, about two-thirds of the House were thrown out. And a good chunk of senators were thrown out by state legislature. So it just caused this outrage in the public that Congress first would give itself a raise and second would raise it so high, to $1,500 a year.
Cunningham: The anger got results. When Congress came back into session, it quickly repealed the law and went back to the $6 rate.
Eventually, lawmakers did manage to switch over to an annual salary. And through the mid 1800s, they incrementally raised their pay in a way that most voters found reasonable.
Koed: And so things were looking better for Congress.
Cunningham: But of course, that didn’t last. In 1873, they got bold again and passed what became known as the “salary grab law,” which raised their salaries to $7,500 a year.
Koed: But most importantly, it made it retroactive to the beginning of that Congress, which in essence meant they got a big bonus for that year. Well, that didn't go down well either. The Boston Globe referred to it as an “act of shameless rapacity.” Members had to come back into session, they repeal the law.
Cunningham: They go back to their former salaries and pay back their bonuses, chastised by the citizens.
Koed: So in other words, it's never been easy for Congress to have to deal with its own salary, from the very first federal Congress on. And through the next century, Congress went through this up and down road of what to do about its salary. Could it be a per diem rate or an annual rate, and could they raise it or not raise it? It was a long and difficult story.
Cunningham: Meanwhile, that amendment Madison proposed -- and that the Congress had passed -- was just sitting out there, mostly forgotten.
Koed: Now along the way, a state would ratify it every once in a while. In fact, in response to that 1873 salary grab law, a couple of states ratified this long dormant constitutional amendment. But it wasn't until the 1980s that it actually got revived. And it got revived in a very interesting way, because in 1982 there was a student from the University of Texas named Gregory Watson who wrote a paper about this old amendment that never became part of the Bill of Rights. But he noted that it had been ratified by a few states and never got close to the three-fourths requirement, but it was still out there. It was just sort of left in limbo, waiting for something to happen.
Cunningham: When Gregory Watson got that class assignment, he was originally going to write his paper on a different amendment.
Watson: Back at that time, there was a great deal of controversy about the proposed Equal Rights Amendment. It had been proposed by Congress on March 22, 1972, with a seven-year deadline within which the state legislatures had to take action upon it.
Cunningham: But as the 1979 deadline approached, not enough states had ratified it. It ended up getting an extension to the year 1982 -- the year that Watson was in college, working on his paper -- but the amendment still didn’t get quite enough states’ sign-off.
Watson: So this was still very controversial in 1982. Nothing like that had ever been done before and it was highly questionable -- and indeed hotly contested -- that Congress had the authority to change an originally agreed-upon deadline. And so I was going to write my paper about that.
Cunningham: And as he was doing research in that Austin library, he started coming across curious facts and quirks about our amendment process.
Watson: I found out that 1917, 100 years ago, was the very first time that Congress had ever taken it upon itself to put a deadline on a constitutional amendment.
Cunningham: That was for the 18th amendment -- the prohibition of alcohol -- when Congress set a seven-year deadline for the states to ratify it.
Watson: Prior to 1917, any amendment that Congress had proposed for the states to consider had no deadline at all. Period.
Cunningham: Then he realized something very interesting about those old amendments without deadlines, when he stumbled upon:
Watson: The 1939 case by the U.S. Supreme Court in Coleman v. Miller.
Cunningham: In which the courts ruled that, for amendments that have no deadline, it’s up to Congress to decide whether too much time has passed between proposal and ratification for the amendment to be valid.
Meaning, several amendments technically still had a shot of getting into the Constitution.
Watson started reading through that chapter of the book, with its list of old, unratified amendments that had fallen into a sort of procedural limbo.
These were officially still ‘pending before the states.’ Waiting. Neither dead, nor alive. But, almost entirely forgotten.
There were five of these passed-but-not-ratified amendments that could still spring back to life. The first two were those two proposals of Madison’s that didn’t make it into the Bill of Rights -- the one about congressional pay; and the one about the number of representatives, called the Congressional Apportionment Amendment.
Watson: It would have provided a very mathematically complex formula for re-apportioning the U.S. House of Representatives.
Cunningham: It’s probably a good thing it wasn’t ratified, because they underestimated population growth and right now we’d have thousands and thousands of members of Congress today if we had adopted it.
Watson: You couldn't even get all the members into the Capitol building.
Cunningham: Then there were three later amendments still pending, passed without deadlines.
Watson: There was another one, from the year 1810 --
Cunningham: Called the Titles of Nobility Amendment...
Watson: -- that said that if you as an American citizen accept a title of nobility bestowed upon you by a foreign country, you forfeit your U.S. citizenship.
Cunningham: There was also a Child Labor Amendment, from 1926. And, most horrifying of all the Corwin Amendment.
Watson: From the year 1861. It was offered to the states for ratification as a last-ditch effort to avert the outbreak of the Civil War. Had it been ratified it would have forever enshrined in the Constitution the institution of slavery.
Cunningham: Preserving it -- forever -- in the states where it was still legal at the time.
All of these undead amendments posed serious questions about the logic of our process. But Watson’s eyes kept returning to that one proposal about congressional pay.
Watson: It certainly caught my attention as I was standing there in the library aisle, holding the book in my hand.
Cunningham: Unlike all those other unratified amendments, this one seemed to Watson like an amendment that should have made it into the Constitution. It still felt relevant, especially since congressional pay issues had just been in the news recently.
Watson: Very, very fresh in my mind: Only a few months earlier was the December 1981 special tax break that Congress gave to itself that applied only to members of Congress, as a special category of taxpayer. They tried to hide this provision in a non-germane bill, which was the bill to assist the coal miners of Kentucky and West Virginia, who were afflicted with black lung disease.
Cunningham: Of course, again, voters found out and gave Congress a beating for it.
Watson: There was a torrent of negative press directed toward Congress for trying to pull that little fast one.
Cunningham: So Watson knew that if somehow this amendment ever got enough state ratifications, and went before Congress to decide whether they’d honor its validity despite all the time that had passed…
Watson: I knew that political pressures would be brought to bear upon the Congress to turn a blind eye to the irregularity and to embrace the amendment.
Cunningham: So he’s standing there between the walls of library books, and he thinks -- forget the paper I was going to write on the Equal Rights Amendment. This congressional pay proposal unearths so many important questions about our constitutional process. It’s begging to be revived.
Watson: And I just felt this kind of energetic sensation physically come over me, as if holding that book I was holding political lightning in my hands.
Cunningham: Gregory Watson got a C on his paper, as he said. But the electricity of his discovery was still zipping through him. And when he decided he was going to “get that thing ratified,” he meant it.
Koed: Now there were a lot of interesting constitutional legal issues that surrounded this story. For one thing could a 200-year-old proposal, proposed constitutional amendment still be valid? And if so, does that mean one of the states that ratified it in the 1790s could go back and reconsider their decision?
Cunningham: It’s 1982, Watson is a college sophomore, and he sets out on a quest to answer these questions.
Watson: It was all done the old-fashioned way, through U.S. postal service.
Cunningham: He needed about 30 more states to ratify it in order to hit that three-quarter threshold. So he started by looking up which members of the House and Senate had filed legislation in 1982 to repeal that unpopular tax break that Congress had given itself. He figured those people might be more sympathetic. And he sent them letters.
Watson: I told them that I'd found this amendment. And I asked them: Can you think of anyone back in your home state, in the state legislature, who you think might be interested in filing a resolution in the state capital to ratify this proposed amendment? And one of the few who responded was former United States senator William S. Cohen of Maine, and he wrote me a nice letter back and said: Yes, as a matter of fact I know precisely who should file the resolution at the state capitol in Augusta.
Cunningham: Bingo. Watson’s information on the old amendment eventually got into the hands of a member of the Maine Senate named Melvin Shute, who filed the resolution. He got it passed through Maine’s state legislature. So on April 27th, 1983, Maine became the first state on Watson’s list to ratify the amendment.
Watson: When I received in the mail the parchment decorative copy of Maine's ratifying resolution, I said to myself, “There's no turning back.”
Cunningham: But out of all the letters he had sent to Congress for help, Maine had been his only real lead.
Watson: I did get a reply from Leon Panetta. He told me he couldn't think of anyone in Sacramento who would be willing to file the resolution. I got a reply from Patricia Schroeder of Denver. She basically told me that the amendment was just part of history couldn't be ratified. So those were I think the only few replies that I got. So I decided now that I needed to directly contact the state legislatures themselves.
Cunningham: So he started looking up which states were majority Republican in both chambers of their legislature, figuring that might make it easier to get the amendment through.
Watson: I deemed the GOP to be a sympathetic party to legislation such as this. And I was right. My prediction proved very true.
Cunningham: Watson sent letter after letter.
Watson: In my apartment at night, on my IBM Selectric typewriter, I would type these letters directly to members of the legislature. And the most expensive part of any of those letters was the postage stamp. At that point postage was 25 cents and going up all the time. So I had spent a great deal of my money on this effort.
Cunningham: But it slowly started paying off. In 1984 in Colorado, where Republicans controlled both chambers, one of the representatives -- Don Mielke -- got Watson’s letter and then filed a resolution for the amendment.
Watson: He passed it through the Colorado House, passed it through the Colorado Senate. And there was yet another success story.
Cunningham: Watson continued sending off letters, and the victories in Maine and Colorado are putting some extra pressure on the other states.
Watson: Each year, starting from 1985 going forward, multiple states ratified. A total of five passed it in 1985. Three more in 1986. Four more in 1987. Three more in 1988.
Koed: But public furor and press attention over yet another congressional pay raise in the late 1980s is what really pushed it over. In 1989, Congress -- in large part to reconcile this long difficult history with compensation -- passed a law that would outlaw honorariums for members, but they would get an annual cost of living raise. That was sometimes referred to in the press as the midnight pay raise of Congress. It got implemented in the early 1990s, and there was this new uproar about Congress raising its own pay. And in the wake of that uproar, other states got on board and began to ratify this constitutional amendment.
Cunningham: By 1992, only a couple more ratifications were needed for the required three-quarters of states to have approved it. So it was getting national attention. And: attention on Capitol Hill.
Koed: There were also a lot of questions in Congress over whether or not this 200-year-old amendment could be valid anymore, and there were a lot of discussions and debates in both houses of Congress about that.
Well, in the beginning senators and members of the house were taken aback a little bit by it. Senator Robert Byrd of West Virginia was absolutely opposed to it because he saw it as a way of taking away from Congress and members of Congress something that they thought had been granted to them by the Constitution: the ability to set their own rate of pay.
It also came to the attention that Congress had passed a number of bills and had put into statute a lot of the regulations of congressional pay. So much of what was included in this amendment had already been a part of statute, and so many questioned whether it was even necessary to have this constitutional amendment.
But the tide of public opinion was turning strongly in its favor.
Watson: And in 1992, there was kind of a jockeying for position as to which state would be the one to put it over the top.
Cunningham: Missouri and Alabama ratified it on the same day, May 5th. That left -- they thought -- only one more state. New Jersey and Michigan both sprinted to be that decisive state. Both ratified it on May 7th, but Michigan got to it just a bit earlier in the day. Watson couldn’t travel to be there, but:
Watson: In the office of the clerk of the Michigan House of Representatives, a very nice, very patient lady rested the telephone receiver on her desk and let me listen in over the intercom to the Michigan House of Representatives approving the amendment.
Cunningham: And that evening, to celebrate --
Watson: -- and being a person of modest means --
Cunningham: --Gregory Watson treated himself to a steak dinner.
All that was left now was for Congress to decide whether they would deem it legitimate.
Watson: So on May the 19th, archivist of the United States Don W. Wilson issued his proclamation that the amendment had indeed received the requisite number of ratifications and that it was in fact the 27th Amendment to the U.S. Constitution.
But given the irregularity of the length of time between Congress proposing it in 1789 and the legislatures of enough states ratifying it by May of 1992, Congress wanted to put its stamp of approval on the amendment.
Cunningham: So the next day, May 20th, both the House and Senate voted on whether to honor its ratification, given that by now a mere 203 years had passed between its passage in Congress and its ratification by the states.
But just as Watson had initially predicted, there was no way that Congress could get around the public pressure.
Koed: And so Congress eventually acknowledged the fact that the American people thought that this was a valid argument and it should be a part of the Constitution. So in the end both houses of Congress got on board. So despite their reservations and despite some really strong opposition in the beginning, it eventually gained the vote of almost every member of Congress.
So today a constitutional amendment that was proposed in 1789, left to live in limbo in 1791, finally became a part of our U.S. Constitution in 1992.
Cunningham: Did the ratification of James Madison’s original second amendment do much to change congressional pay? Maybe not.
Koed: Congress always has to face the very difficult political decision of whether or not it will raise its pay, and it's the influence of public opinion that shapes that debate more than anything else.
Cunningham: Besides, after instituting the system of automatic cost-of-living increases through that 1989 midnight pay raise, Congress mostly found a way around having to take public votes on whether to give itself a raise. But: That doesn’t mean the amendment is without significance.
Koed: I think this is sort of a symbolic statement on the part of the American people that they're paying attention. They're watching what Congress does and that Congress is responsible to the American people for what they do and that you know there is a constitutional authority that says you cannot do this without some sort of accountability. And that is symbolically important.
Cunningham: The ratification of this long-lost amendment also highlighted some of the best and worst aspects of creating a Constitution that’s open to change.
Watson: First and foremost, I do believe that I proved that if you will get involved in the political process you can indeed have strong influence.
And if people will be more participatory in their government, their government will be more responsive to them. I think it's very sad that in the 1980s, 1990s and today in the year 2017, the average citizen does not take an active role in his or her government. And because of that inattentiveness on the part of most Americans, politicians just basically kind of do whatever they darn well please. And to a very great extent they get away with it. But I did show that if you are vigilant, pay close attention, and participate in the process, you can get many things accomplished.
Cunningham: Watson stayed engaged himself -- even after that 27th Amendment became law. He served for some time as a policy analyst in none other than the Texas state legislature.
And part of being an active citizen, he says, is about identifying flaws that need fixing in order to make the system better. His efforts on congressional pay, for example, helped reveal some of the problems created by the framers’ very bare-bone instructions for amending the Constitution.
Watson: One of the things that I wanted to demonstrate the whole time was: The process by which the Constitution is amended is very outdated, very antiquated. It is in dire need of modernization.
It shouldn't take over 200 years for an amendment to find its way into the federal Constitution after Congress has proposed it.
Cunningham: We have amendments like congressional pay that lie dormant for centuries only to end up ratified. While others, like the Equal Rights Amendment, get almost all the state ratifications they need in fairly short order -- but then immediately die because of strict deadlines.
So if part of our ability to carve a path toward a “more perfect union” rests on our ability to update the Constitution, then it’s a pretty tough road.
Watson: It should be a difficult process, but it shouldn't be virtually impossible. And a tiny number of people should not be able to engage in legislative maneuvering and parliamentary treachery to prevent the will of the majority from prevailing.
Cunningham: But all 11,000 amendment attempts -- the ones that failed to pass Congress, the ones that passed Congress but failed to get through the states -- all of these are still part of America’s collective journey to figure itself out.
Koed: I mean, I think it's wonderful that we have people who are paying attention to government, are looking at how it works, and are trying to figure out ways to make it better. Some of the ideas may be crazy, some of them may be impractical, but every once in a while there comes an idea that actually catches on.
Cunningham: Even if it takes two centuries.
Watson: We have had 27 amendments to the Constitution. Don't forget that 10 of them were simultaneous, all in one fell swoop. So to be mathematically correct, the U.S. Constitution has only been amended -- when you stop and think about it -- only been amended on 18 separate occasions. So that makes it an even more rare and unusual event.
Cunningham: And when it does happen, that’s because there are passionate, dedicated citizens behind it -- pushing for change.
Many thanks to this week’s guests: Betty Koed, the U.S. Senate historian; and Gregory Watson, an American citizen who spurred the ratification of the 27th Amendment.