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Across Two Centuries, a Founder Updates the Constitution

By Bill McAllister
Washington Post Staff Writer
Thursday, May 14, 1992; Page A01

James Madison's 202-year-old proposal for a constitutional amendment to prevent members of Congress from voting themselves a midterm pay raise is an idea whose time has come, the archivist of the United States declared yesterday.

With that endorsement, Archivist Don W. Wilson effectively proclaimed the one-sentence, 24-word measure the 27th Amendment to the Constitution. The amendment states, "No law, varying the compensation for the services of the senators and representatives, shall take effect, until an election of representatives shall have intervened."

Wilson's decision appeared to undercut suggestions by members of the Senate and House that Congress can block the measure from being added to the Constitution because it took so long for the required three-fourths of the states to ratify the proposal. Two leading constitutional scholars suggested yesterday that Congress may not have such power.

Congress submitted the amendment to the states on Sept. 25, 1789, as part of a package of 12 initial amendments. Ten of these were ratified by 1791 and became the Bill of Rights, but the pay raise prohibition found relatively little support. By 1800, only six states had endorsed the idea.

The amendment languished until the 1980s when a state legislative aide in Texas discovered the proposal and orchestrated a campaign that led to its approval last Thursday morning by the Michigan legislature, an action that gave it approval by the required three-fourths of the states.

Some members of Congress, including House Speaker Thomas S. Foley (D-Wash.) and Sen. Robert C. Byrd (D-W.Va.), have expressed reservations over the viability of Madison's idea, insisting that the Founding Fathers wanted state approval of constitutional amendments to be contemporaneous with their submission by Congress. The Supreme Court made a similar suggestion in 1921 and 1939 rulings, but congressional supporters of the Madison amendment, noting that Congress imposed no time limit when it sent the measure to the states, argued that the Michigan action added it to the Constitution.

Yesterday, Wilson, 49, a Reagan administration appointee who holds a PhD in history, sided with the supporters. "Upon receipt of formal notification of ratification of the congressional pay amendment by three-fourths of the states, I will, in accordance with 1 USC

106b, certify the adoption of the amendment," he said in a written statement.

His action ended any question over whether the archivist would grant conditional approval to the amendment or await further action by Congress or do nothing, options that his staff had suggested last week were possibilities following the Michigan vote.

As head of the National Archives and Records Administration, Wilson is the custodian of the Constitution. As such, he has the authority to declare when an amendment has been adopted. His publication of such a notice is likely in "the next day or two," said Susan Cooper, an Archives spokeswoman, noting that Wilson is still awaiting receipt of formal ratification papers from one of the last of the required 38 states.

Constitutional scholars seemed to agree that Congress's time to act on Madison's amendment had passed. "It is not Congress's role to declare Michigan's 1992 ratification too recent or Maryland's 1789 ratification too ancient," said Laurence H. Tribe, Harvard Law School professor of constitutional law, in an article in yesterday's Wall Street Journal.

Duke University law professor Walter Dellinger said he, too, considered the process completed. "My own view is that Congress has no formal role to play," he said. "The amendment process is completed by act of the last necessary state."

He did say that a congressional resolution backing the amendment would do "no harm" and might end the dispute. The founders were wary, he noted, of giving Congress the sole power to determine amendments.

Members of Congress seemed determined to press for congressional review. "Congress – not the courts and not the executive – has the final say over whether an amendment has received the required votes for ratification in a reasonable time," said Byrd.

Rep. Don Edwards (D-Calif.), chairman of the House Judiciary subcommittee on civil and constitutional rights, accused Wilson of usurping "ministerial" powers he holds by an act of Congress. "I don't see how Congress could give up such an important function to a political appointee," he said, disputing suggestions that congressional action is unnecessary.

"On its face it's a dangerous precedent," he said. Even so, Edwards said he had no doubt that Madison's proposal "is going to be made part of the Constitution. But it's going to be done right."

© Copyright 1992 The Washington Post

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