The Forgotten, Newest Amendment: Is It Already a Dead Letter?

In 1982, while searching for a research paper topic, University of Texas graduate student Gregory Watson discovered that in addition to the ten amendments that became our Bill of Rights, the first Congress had proposed and submitted two additional amendments to the states for ratification. He also discovered that one of those amendments, though not ratified at the time, was still viable because it did not contain a sunset provision limiting the time for ratification. He began a campaign lobbying state legislatures to ratify the forgotten amendment, and eventually enough did so that the 27th Amendment became part of our Constitution in May 1992.

The text of the amendment is elegantly 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.”

The ink was hardly dry on the new Amendment before Congress received a cost-of-living pay raise without an intervening election, and the COLA was challenged in court as being contrary to the 27th Amendment. By automatic operation of the COLA Act and without a vote by Congress followed by an intervening election of Congress, congressional salaries were increased on the first day of January 1992, 1993, 1998, and 2000. The “law” providing for annual cost-of-living raises had been adopted prior to the Amendment, however, and the annual adjustments are determined administratively, not by Congress, so the merits of the constitutional challenge are somewhat debatable.

Much more interesting, though, is the preliminary question, “Who has standing to bring such a challenge?” The Supreme Court’s standing doctrine jurisprudence has long required that a plaintiff have a particularized harm different in kind or magnitude from the general citizenry or even the more narrow class of taxpayers, in order to have standing to sue. For years that was understood to be simply a prudential doctrine designed to avoid unnecessary judicial interference with legislative policy decisions, but in the 1992 case of Lujan v. Defenders of Wildlife, the Court elevated its “particularized harm” requirement to the level of a constitutional mandate, ostensibly imposed by the “case or controversy” language of Article III of the Constitution.

Making “particularized harm” a constitutional threshold effectively means that no one has standing to challenge violations of the 27th Amendment, or any other spending that arguably exceeds Congress’s constitutional powers, for that matter. The “remedy” for unconstitutional spending exists, according to the Court, at the ballot box, not the courthouse.

Thus, in one recent case brought in the District of Colorado, a group of taxpayers was dismissed from a suit challenging the pay raise. The group did not suffer any harm different from the harm suffered by every other taxpayer, so the court held that they lacked standing to pursue the challenge. Although the district court allowed for standing by a member of Congress who had claimed harm to his own personal reputation for having received the allegedly unconstitutional pay raise, the Tenth Circuit Court of Appeals reversed, holding that the member of Congress also lacked standing.

A petition for writ of certiorari is now pending before the Supreme Court, and it is scheduled for consideration at the Court’s conference on Friday, October 26. The Supreme Court has recognized one exception to this constitutional standing doctrine that on its face is extremely relevant to the 27th Amendment case. That exception was recognized in the 1968 case of Flast v. Cohen, and it permits taxpayer standing to challenge governmental actions that allegedly violate the Establishment Clause of the First Amendment because that clause constitutes a specific constitutional prohibition on spending. The 27th Amendment is likewise a specific constitutional prohibition on spending, but some members of the current Court have challenged the continuing vitality of the Flast exception and are therefore unlikely to vote to extend that doctrine to cover the current case.

The stakes are particularly high, because the 27th Amendment was designed to provide a structural check on Congress by means of the political process – the very process that the Court has relied upon to deny standing in other contexts.

But the stakes are even higher than that. For more than half a century, Congress has been engaged in spending for a vast array of internal improvements, wealth transfers, big business subsidies, and outright pork that would have been viewed as patently unconstitutional by our nation’s founders and by almost every President prior to the civil war. Such domestic spending for the particular benefit of some did not meet the constitutional mandate that spending be for the “general” or national rather than merely local welfare.

More than just an issue of constitutional purity, the allocation of power between the federal and state government on spending matters was designed to prevent the federal government from being distracted from its principal obligation of providing for the common defense and other matters of truly national concern. In one message vetoing an internal improvements spending bill, President James Buchanan highlighted this concern:

“The representatives of the States and of the people, feeling a more immediate interest in obtaining money to lighten the burdens of their constituents than for the promotion of the more distant objects entrusted to the Federal Government, will naturally incline to obtain means from the Federal Government for State purposes. If a question shall arise between an appropriation of land or money to carry into effect the objects of the Federal Government and those of the States, their feelings will be enlisted in favor of the latter. This is human nature; and hence the necessity of keeping the two Governments entirely distinct.”

Particularly now, when our commitment to national defense is at its most urgent, it is important to keep in mind this constitutional allocation of powers. It would be nice to have the judiciary back in the game giving effect to the constitutional limits placed on Congress’s power to spend tax revenues, not just when the Establishment Clause is implicated, but when any constitutional limitation is involved. Our very ability to pass on the blessings of liberty to our posterity may depend on it.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.