This month, five states ratified a 202-year-old proposed constitutional amendment forbidding members of Congress from raising their salaries during a session of Congress. This brought the total number of states ratifying the proposal to 39, which is the requisite 75 percent of the states the Constitution requires for adding an amendment. Yesterday, the archivist of the United States, Don Wilson, said that as soon as he has all the ratification documents in hand, he will certify the adoption of the 27th Amendment.
He should not do that. It is his prerogative as archivist and his duty as a scholar to decline certification on the grounds that an amending process that stretches over 202 years is not a legitimate way to change the Constitution.
The Supreme Court has said that time can be a factor in deciding the legality of certification of constitutional amendments. Scholars, lawyers and politicians have argued for years over how long a state's ratification of an amendment should live. Some say seven years, some say 10, some say no fixed number of years so long as the required number of ratifications occur contemporarily. No serious person has ever said 202 years.
Here is how antique and remote and invalid this amendment is:
James Madison wrote it when there were 13 states. Today, three-fourths of those 13 states still have not ratified the amendment. When Madison died 47 years after proposing the measure, only six states had ratified it. Until a decade ago, only eight states had. Then an organized movement exploited Congress-bashing sentiment to produce the rush of ratifications.
It would mock the grandeur of the Constitution to amend it with something so frivolous and petty. Nor would the amendment stop congressional pay raises. The overwhelming majority of congressmen still get re-elected even in times like these. Besides, they could vote raises for the next session after an election, which they could then legally collect.
If the anti-Congress frenzy is so virulent that the leaders of the movement -- in and out of Congress -- want this amendment anyway, they should get it in a proper fashion. That means it should be resubmitted to the states that ratified it decades -- or centuries -- ago to re-ratify it. The Supreme Court has given Congress the authority to require something like this.
The early states include Maryland, which ratified the amendment in timely fashion in 1789, but should not do so again. Back then it may have seemed like a good idea to micro-manage national affairs with numerous detailed amendments to the Constitution. Now we all know better. Two centuries of experience have demonstrated that one of the integral reasons for the Constitution's greatness has been our willingness to limit amendments to only the great issues.