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Essay:<\/strong><\/p>\n The Twenty-Seventh Amendment: Meaning and Application<\/strong><\/p>\n GianCarlo Canaparo<\/strong>*<\/strong><\/a> & <\/strong>Paul J. Larkin, Jr.<\/strong>**<\/strong><\/a>\u00ad<\/strong><\/p>\n <\/p>\n Introduction<\/strong><\/p>\n By 2021, lawyers have become accustomed to giving the term \u201claw\u201d a host of different meanings depending on its source. A law had one meaning under pre-Norman law, when it was one of the set of unwritten traditions embraced by decentralized local tribes or the written \u201cdooms\u201d issued by various local chieftains.[1]<\/a> That term could take on a different meaning at English common law when Parliament was in its infancy and the royal courts were the sou\u00ad\u00adrce of most of the \u201claw\u201d known throughout the kingdom.[2]<\/a> In this nation, \u201claw\u201d was the product of a similar trial-and-error process of definition[3]<\/a> before Congress overtook the courts as the principal federal lawmaking body.[4]<\/a> Of course, today the regulatory state issues far more \u201claws\u201d than Congress does[5]<\/a> and its assorted rules, regulations, and even letters might or might not have the same legal status as an act of Congress.[6]<\/a> The bottom line is this: The term \u201claw\u201d could have an entirely different understanding today depending on whether an edict is found in the Constitution of the United States,[7]<\/a> in the United States Code,[8]<\/a> in the Code of Federal Regulations,[9]<\/a> or in an agency\u2019s memorandum.[10]<\/a><\/p>\n With that in mind, consider our most recent constitutional amendment, the Twenty-Seventh. Like many of its kin, that Amendment is a bit of a troublemaker. Not a big one, mind you, but a bigger one than its simple text might suggest. That text is this: \u201cNo law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.\u201d[11]<\/a><\/p>\n Ironically, the Twenty-Seventh Amendment was one of the first proposed in 1789 with the first draft of the Bill of Rights.[12]<\/a> It wasn\u2019t until 1992\u2014203 years later\u2014that the requisite number of states ratified it. That action caused an immediate flurry of scholarly and political debate about several issues, such as whether the Amendment had expired, the implications for Article V of a delayed ratification,[13]<\/a> and whether the amendment process was a useful means of obtaining desired political outcomes.[14]<\/a>\u00a0 Those who argued that it had expired based their conclusions primarily on dicta from Dillon v. Gloss<\/em>,[15]<\/a> in which the Supreme Court held that Congress could set a reasonable time period in which states must ratify the Eighteenth Amendment.[16]<\/a> In dicta, the Court declared that \u201cratification must be within some reasonable time after the proposal.\u201d[17]<\/a> Contemporaneity, it stated, is necessary to \u201creflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.\u201d[18]<\/a> Some scholars considered the related question of whether the Court could or should resolve Article V questions or whether those issues were political questions best left to Congress.[19]<\/a> Finally, for Professor Bernstein, the Twenty-Seventh Amendment raised concerns about \u201camendment politics\u201d and the \u201cwillingness of right-wing politicians to reach for Article V as if it were a fire-ax on the wall.\u201d[20]<\/a><\/p>\n Those debates have simmered down, but disputes about the Amendment\u2019s text and application still pop up.[21]<\/a> There has been litigation,[22]<\/a> some scholarly engagement,[23]<\/a> and political dispute over the Amendment\u2019s meaning and application.[24]<\/a> Disputes over the Amendment likely will continue to surface and require additional guiderails. This Essay attempts to provide them by ascertaining the Amendment\u2019s meaning and implications according to its text and history.<\/p>\n This Essay proceeds in three Parts, each of which focuses on issues of interpretation and implementation raised by components of the Amendment. Part I examines the term \u201claw\u201d and concludes that it has the same technical meaning that the word does for purposes of the Bicameralism and Presentment requirements of Article I: namely, bills passed by Congress and signed by the President (or repassed over his veto).[25]<\/a> The Amendment does not apply to any other government action. We also examine an important implication of this conclusion, namely, the Amendment cannot be used as a basis for holding an act of Congress unconstitutional, with rare exceptions. Taken together with the Ascertainment Clause, however, the Amendment does prohibit Congress from delegating its compensation-setting power to any other body. Part I also discusses the problems raised by trying to find a uniform meaning of what should be an elementary term\u2014\u201claw\u201d\u2014in a charter devoted to the rule of law. Part II examines the meaning of \u201cvarying\u201d and \u201ccompensation,\u201d and concludes that a law varies compensation when it changes the terms of an existing law enacted pursuant to the Ascertainment Clause.[26]<\/a>\u00a0 Part III examines the meaning of \u201cshall take effect\u201d and \u201can election\u00a0.\u00a0.\u00a0. shall have intervened\u201d and concludes that the former refers to the moment when members are entitled to receive a quantifiable change to their compensation, and the latter means that a new Congress has been seated.<\/p>\n I. The Meaning of \u201cLaw\u201d<\/strong><\/p>\n The Twenty-Seventh Amendment provides that \u201cno law\u201d may take effect until a House election has intervened.[27]<\/a> The Constitution does not define \u201claw\u201d and the word has more than one meaning in that document. Article I, Section 7, for example, provides a technical definition: a bill passed by both houses of Congress and signed by the president (or repassed over his veto).[28]<\/a> But the First Amendment\u2019s declaration that \u201cCongress shall make no law. . . .\u201d[29]<\/a> prohibits much more than Article I \u201cLaws\u201d as do the words \u201cNo State shall make or enforce any law\u201d in the Fourteenth Amendment.[30]<\/a> Article I, Section 8, Clause 10, meanwhile, refers to the \u201cLaw of Nations.\u201d [31]<\/a><\/p>\n It turns out that the debate over the meaning of the term \u201claw\u201d in the Twenty-Seventh Amendment raises a marvelously complex issue of constitutional law. The reason is that, over time, the Supreme Court has followed different processes of legal interpretation that can lead to very different outcomes depending on the methodology that one adopts. A common-law method of interpretation, for example, would deemphasize the text of the Constitution and accentuate the Supreme Court\u2019s rulings construing the charter\u2019s terms, as well as the policies that a particular provision sought to protect and foster, all in the name of giving effect to the subjective intent of the people who drafted and approved the Constitution.[32]<\/a>\u00a0 By contrast, a textually oriented approach to constitutional interpretation would highlight the text that the Framers and Ratifying Conventions considered and approved in recognition of the facts that words have generally well understood meanings for particular people at specific times and that this geographically and temporally defined range of meanings supplies the universe of legitimate interpretations that the text may have.[33]<\/a> Still other methods of interpretation might lead to any number of meanings.<\/p>\n Professor Adrian Vermeule, for example, seems to pick out of thin air a theory interpreting the Twenty-Seventh Amendment based on a thought experiment by John Rawls, which Vermeule argues, explains the Amendment\u2019s purpose.[34]<\/a> Of course, as far as the Framers were concerned, Vermeule\u2019s Rawlsian theory of interpretation might as well have been Martian because a novel theory created by someone born 134 years after the Convention of 1787 had adjourned did not play, and could not have played, any role in the Framers\u2019 understanding of the words they put on paper.<\/p>\n Because of the Supreme Court\u2019s inconsistent approach to defining \u201claw,\u201d to pick one interpretive method is to take a position that is at odds with some body of case law. Here, for example, we take a textually oriented approach to defining \u201claw\u201d (and the other terms of the Amendment) that reveals a meaning irreconcilable with the Court\u2019s reading of the same word in the First Amendment. The unavoidable conclusion is that either we are wrong or the Court is wrong. We have opinions about that question, but this is not the time or place to set out a grand unified theory of the meaning of a \u201claw.\u201d[35]<\/a> Suffice it to say, we acknowledge that the originalist approach we follow here is at odds with and has implications for the Supreme Court\u2019s interpretation of that term in other contexts. But that is a question for another day. Here and now, we turn our attention solely to the meaning of that word in the Twenty-Seventh Amendment. As it turns out, there are very good reasons why, in that context, \u201claw\u201d does not and should not bear the same expansive definition the Court has given it in other settings.<\/p>\n That conclusion, however, is not necessarily intuitive when we consider that, originally, James Madison intended for the \u201ccompensation amendment\u201d to accompany the First Amendment in the Bill of Rights.[36]<\/a> It may be tempting, therefore, to interpret \u201cNo law\u00a0.\u00a0.\u00a0.\u00a0shall take effect\u201d in a similar manner to \u201cCongress shall make no law.\u201d\u00a0 Both phrases, after all, are the only constraints included in the original Bill of Rights that expressly limit lawmaking.[37]<\/a> Indeed, in several Twenty-Seventh Amendment disputes to-date, one party has argued that \u201claw\u201d means something other than a bill passed by both houses and signed by the president.[38]<\/a> Those arguments suggest an understanding of \u201claw\u201d that is more aligned with the expansive meaning of that term that the Supreme Court has given it in the First Amendment.<\/p>\n There are two good reasons, however, not to give \u201claw\u201d in the Twenty-Seventh Amendment a loose meaning like it has in the First Amendment. The first reason is that the Twenty-Seventh Amendment\u2019s text and history foreclose it. The Amendment was not born of nothing and poured out over blank parchment like light over the dark face of the deep.[39]<\/a> Rather, it followed and was meant to amend the Ascertainment Clause, which says that compensation for members of Congress shall be \u201cascertained by Law.\u201d[40]<\/a> Indeed, any examination of the meaning of the Twenty-Seventh Amendment must start with the Ascertainment Clause; the Amendment cannot be divorced from it.[41]<\/a><\/p>\n It would be a mistake to give an expansive reading to the term \u201claw\u201d in the Twenty-Seventh Amendment. The history of the Ascertainment Clause makes clear that, \u201cLaw\u201d has its technical Article I meaning\u2014a bill passed by both houses and signed by the president.[42]<\/a> There had been a fierce debate among the Framers about how members of Congress ought to be paid.[43]<\/a> One faction believed the states ought to pay their representatives, while the other thought that the nation, through the federal government, ought to do so.[44]<\/a> The debate seems to have assumed, as a matter of course, that if the federal government paid the members, that pay would be set by law.[45]<\/a> This makes sense because the Constitution the Framers were debating gave the power over the federal purse to Congress.[46]<\/a> Moreover, the Framers were acutely aware of the battles between Parliament and the English Crown over spending authority and realized that \u201ccontrol over the power of the purse was the foundation of Parliament\u2019s ability to resist the authority of the king.\u201d[47]<\/a> That power, James Madison also noted, was in House members \u201calone.\u201d[48]<\/a> Accordingly, the Ascertainment Clause\u2019s use of the word \u201cLaw\u201d means, very simply, that members\u2019 compensation must be set by the legislative process defined by Article I.<\/p>\n It follows that \u201claw\u201d in the Twenty-Seventh Amendment should have the same meaning as it does in Article I because that Amendment fixes conditions on the legislative process and timing of the laws enacted pursuant to the Ascertainment Clause.[49]<\/a> In this way, the Twenty-Seventh Amendment is like the Origination Clause[50]<\/a> and the bicameralism and presentment requirements.[51]<\/a> All of these provisions establish procedural requirements that must be satisfied before an act of Congress may either become law or take effect.<\/p>\n The second reason that the Court\u2019s expansive definition of \u201claw\u201d in the First Amendment need not apply to the Twenty-Seventh Amendment is that the amendments serve different purposes. Unlike the First Amendment, the Twenty-Seventh is concerned \u201cwith an issue of governmental structure rather than substantive individual right[s].\u201d[52]<\/a> It is more accurate to say the Twenty-Seventh Amendment is concerned with legislative procedure than governmental structure, but the point stands.<\/p>\n The conclusion that \u201claw\u201d within the Twenty-Seventh Amendment takes on the narrow technical definition of Article I resolves two of the debates about the Amendment.[53]<\/a> The first was raised in Boehner v. Anderson<\/em>.[54]<\/a> There, Representative John Boehner challenged part of the Ethics Reform Act of 1989 that created automatic annual cost of living adjustments (COLAs) for members of Congress.[55]<\/a> He argued, in relevant part, that each COLA was a new \u201claw\u201d for purposes of the Amendment, and that they were therefore unconstitutional because half of them (those in odd-numbered years) took effect without an intervening election.[56]<\/a> The court acknowledged that \u201c[t]he Constitution does not define a law except to say (at least implicitly) that it is the product of the legislative process.\u201d[57]<\/a> By that measure, the only law at issue was the Ethics Reform Act itself, which established the COLAs starting in 1991, after an intervening election.[58]<\/a> The only other court to reach this issue came to the same conclusion.[59]<\/a><\/p>\n The most recent debate over the Twenty-Seventh Amendment is also resolved by giving \u201claw\u201d its narrow Article I meaning. In 2021, the House passed rules requiring Representatives to use metal detectors when entering the House Chamber enforced by fines that would be deducted from their salaries.[60]<\/a> Several members objected on the grounds that the fines violated the Twenty-Seventh Amendment.[61]<\/a> This argument fails because the House rules are not Article I laws, and therefore fall outside the scope of the Twenty-Seventh Amendment.[62]<\/a> This conclusion is bolstered by Section 5 of Article I, which permits each House to \u201cdetermine the Rules of its Proceedings, punish its members for disorderly Behaviour . . . .\u201d[63]<\/a> That the Constitution draws a line between House rules and laws supports the argument that the one is not the other. Finally, a deduction from a member\u2019s pay\u2014whether because of a violation of a congressional rule, a parking ticket, or an increase in the federal income tax\u2014does not implicate the accountability concerns that underlie the Twenty-Seventh Amendment.[64]<\/a><\/p>\n That \u201claw\u201d takes its technical definition carries an important, but heretofore overlooked, implication: in general, the Amendment may not be used to strike down laws that violate it. Instead, it should be read as providing a default timing rule that is incorporated by any law varying compensation that lacks a similar timing term or that replaces the timing term in a law that purports to vary compensation before<\/em> an election has intervened. This is implied by the Amendment.\u00a0 It does not prevent passage of a law that would violate its terms; instead, it merely prevents that law from taking effect \u201cuntil an election of Representatives shall have intervened.\u201d[65]<\/a> Unlike the Origination Clause and the bicameralism and presentment requirements, the Twenty-Seventh Amendment imposes its requirement after <\/em>a law has fulfilled the Constitution\u2019s procedural requirements. Other limitations on government action, both procedural and substantive\u2014including the Origination Clause, the bicameralism and presentment requirements, the Bill of Attainder Clause,[66]<\/a> the Emoluments Clause,[67]<\/a> the First Amendment, and so forth\u2014either state or imply that violations are void from the outset. Not so with the Twenty-Seventh Amendment. It permits enactment of laws that violate it but delays their effect until its timing condition is satisfied.<\/p>\n Two examples illustrate how the Amendment works. Consider first a law that changes members\u2019 salaries but that sets no date upon which that change shall take effect. The law is missing a required term: A date after the next election. A straightforward reading of the Amendment does not lead to the conclusion that the law should be struck down, only that the earliest moment at which it may take effect is after the next House election. Moreover, a court would avoid striking it down as unconstitutional because a plausible constitutional explanation is present.[68]<\/a> That is, the Amendment provides the default term for any statute that omits a provision setting the effective date of the change in compensation. Thus, the change in salary effected by any such law would simply be deferred until immediately after the next election.<\/p>\n Next, consider a bill that explicitly changes members\u2019 salaries effective before<\/em> the next election. The Amendment does not prevent that bill from becoming law. So again, a court faces the choice between striking down the law or superseding its timing provision with the Twenty-Seventh Amendment\u2019s. The latter option accords both with the text of the Amendment and the avoidance doctrines.[69]<\/a><\/p>\n The takeaway from all this is that the Amendment generally cannot be used to strike down laws that vary compensation before an intervening election.[70]<\/a> An exception to that rule might exist, however, for a law that makes an immediate change to compensation in response to a discrete event such that substituting the Amendment\u2019s timing provision for the existing one would entirely frustrate the law\u2019s purpose.[71]<\/a> For example, in 2013 the House Rules Committee proposed a bill that would withhold Congress\u2019 pay if members failed to pass a budget by April 15 and release the pay either when they passed a budget or at the end of the current Congress.[72]<\/a> It is impossible to include the Amendment\u2019s timing provision without frustrating the purpose of the bill. If members failed to pass a budget, their pay could not be withheld until after the next election, but by then their salaries would be restored regardless of whether the Congress had passed a budget. Thus, using the Twenty-Seventh Amendment as a source of default language would entirely frustrate Congress\u2019s intent. In that limited circumstance the Amendment might be used to strike down a law.<\/p>\n One final observation and implication. As the Ascertainment Clause informs our understanding of the Twenty-Seventh Amendment, so too does the latter inform our understanding of the former. The purpose of the Amendment is to make Congress politically accountable for the salary decisions it makes pursuant to the Clause.[73]<\/a> It follows from this purpose that Congress may not escape this political accountability by delegating its power (or obligation) to set members\u2019 compensation. To delegate compensation-setting authority to any other body conflicts with the text of both provisions, which require an Article I law, and with the purpose of the Amendment because it would relieve Congress of the political accountability that the Amendment creates.[74]<\/a><\/p>\n The history of salary laws accords with that understanding. Congress set members\u2019 compensation by law for the first 179 years after the states ratified the Constitution.[75]<\/a> It was not until the Postal Revenue and Salary Act of 1967 that Congress first attempted to delegate its salary-setting authority.[76]<\/a> The Salary Act empowered a commission to recommend congressional salaries to the President and provided that if the President accepted the salaries, they would take effect unless one House of Congress expressly disapproved of them.[77]<\/a> Before the Twenty-Seventh Amendment was ratified, that delegation was upheld by a district court on no firmer basis than that the \u201cgrowing complexity of all governmental functions\u201d made it necessary to accommodate a \u201cflexible approach.\u201d[78]<\/a> That decision cannot be squared with text of the Ascertainment Clause, and it cannot be squared with the subsequently ratified Twenty-Seventh Amendment, which underscores that Congress may not escape political accountability for its compensation decisions.[79]<\/a><\/p>\n II. The Meaning of \u201cVarying\u201d and \u201cCompensation\u201d<\/strong><\/p>\n We begin with \u201ccompensation\u201d because when considering whether and when compensation has been varied, it helps first to exclude whatever is not compensation.<\/p>\n As with \u201claw,\u201d the meaning of \u201ccompensation\u201d becomes clear when we examine the Twenty-Seventh Amendment in light of the Ascertainment Clause. Because the Twenty-Seventh Amendment imposes a limitation on laws passed under the Ascertainment Clause, \u201ccompensation\u201d simply means: Anything included in a law enacted pursuant to that clause. At first this may seem circular, but it is not. At no point in history could the Twenty-Seventh Amendment have pre-existed a law enacted pursuant to the Ascertainment Clause. The first such law was enacted in 1789 while the Twenty-Seventh Amendment was still being debated as the second amendment in the proposed Bill of Rights.[80]<\/a> Even if the Twenty-Seventh Amendment had been ratified in 1791 with the Bill of Rights, there would already have been a compensation law on the books. Of course, because it was ratified 202 years after its proposal, there were scores of such laws on the books. The words \u201cvarying compensation,\u201d therefore, assume the pre-existence of a law enacted pursuant to the Ascertainment Clause and must be defined in reference to it. In sum, a law varies compensation when it varies the terms of a previous compensation law.<\/p>\n What does it mean to vary? The history of the Twenty-Seventh Amendment makes clear that that word encompasses both increases and decreases to compensation.[81]<\/a> The possibility that members of Congress would increase their salaries to enrich themselves was obvious to the Framers. But they were also aware of the practice in Britain, and in the States under the Articles of Confederation, of lowering representatives\u2019 wages for political gain and of enacting property requirements that excluded challengers who lacked independent means.\u00a0 The Framers aimed to avoid those problems.[82]<\/a> On the question of increases or decreases, therefore, the answer is both.<\/p>\n The more difficult question, however, is: When<\/em> does a law vary compensation\u2014when it is enacted or when the change goes into effect? This issue was raised in Boehner v. Anderson<\/em>.[83]<\/a> The Ethics Reform Act provided automatic annual COLAs, one of which was due to be paid on January 1, 1994.[84]<\/a> On March 4, 1993, however, Congress passed another law that cancelled the upcoming COLA without an intervening election.[85]<\/a> The plaintiff argued that the law varied members\u2019 compensation as of January 1.[86]<\/a> The defendants argued that no variance in compensation occurred because the second law merely \u201cextend[ed] the period during which their compensation remain[ed] unchained.\u201d[87]<\/a> The court did not reach the issue because it was improperly raised for the first time on appeal.[88]<\/a><\/p>\n For his part, Professor Vermeule argues, as a normative matter, that<\/p>\n The Twenty-seventh Amendment vesting rule should be that legislators\u2019 \u201ccompensation\u201d vests when statutory changes are enacted, not when they become effective. This does not<\/em> mean that, once the Congress has enacted a scheduled adjustment, the adjustment may never be blocked, but merely that it may not be blocked after the election of the very Congress in which it will become effective. A statute enacted in 2001 that schedules a COLA for January 4, 2005 may be blocked by a supervening statute at any time before the congressional elections in November 2004.[89]<\/a><\/p>\n This is so, he argues, because the Amendment is designed to prevent sitting members of Congress from knowingly adjusting their own salaries.[90]<\/a> His argument is normatively compelling and aligns with the Amendment\u2019s originally intended purpose.[91]<\/a> Consider the example he gives:<\/p>\n In Year 1, Congress enacts a future decrease, scheduled to go into effect on January 4 of Year 3, the beginning of the following Congress; there is an intervening election in Year 2; and on the afternoon of January 3, the new Congress enacts, as its first measure, a law blocking the next day\u2019s decrease. On a \u201cveil of ignorance\u201d approach, this should be held a straightforward violation of the Amendment. Legislators voting on the January 3 statute presumptively suffer from the very decisionmaking distortion that provoked the Amendment; the new Congress has, in effect, knowingly adjusted its own salary.[92]<\/a><\/p>\n But does this argument align with the text? The text separates \u201cvarying\u201d from \u201ctaking effect\u201d suggesting that a law may vary compensation without taking effect. We find further support for this reading if we, again, view the Twenty-Seventh Amendment in light of the Ascertainment Clause.[93]<\/a> The Twenty-Seventh Amendment was intended to modify the Ascertainment Clause by imposing a timing condition on laws enacted under it.[94]<\/a> If compensation means the provisions of any such law, then \u201cvarying\u201d means any increase or decrease to the provisions of that law. Thus, the most natural reading of the Amendment is that a law varies compensation whenever a new law changes a preexisting compensation law\u2014that is, upon enactment.<\/p>\n That conclusion is bolstered by comparing the Twenty-Seventh Amendment to the Presidential Compensation Clause[95]<\/a> and the Judicial Compensation Clause.[96]<\/a> The first fixes the president\u2019s compensation during his four-year term, and the second provides that judges\u2019 salaries cannot be decreased during their service. Both explicitly prohibit certain changes in compensation during a period of time. The Twenty-Seventh Amendment does not. It allows changes to occur but stops them from taking effect until an election has intervened.<\/p>\n Reading the Amendment this way reveals that both parties in Boehner<\/em> were wrong.\u00a0 The law blocking the COLA did<\/em> vary compensation because it changed the terms of a prior compensation law, but it complied with the Amendment\u2019s timing condition because the variance occurred the moment the law was enacted. This reading also provides a second way to resolve the debate over House rules that deduct fines from Representatives\u2019 salaries if they fail to use metal detectors.[97]<\/a> Not only are the rules not \u201claws,\u201d they also do not vary compensation because they do not change the terms of previous compensation laws. They are fines for misconduct, as are parking tickets. Neither one changes a member\u2019s salary.<\/p>\n III.\u00a0 The Meaning of <\/strong>\u201cshall take effect\u201d and \u201cshall have intervened\u201d<\/strong><\/p>\n The previous conclusion\u2014that a law varies compensation when it is enacted\u2014largely resolves the question of what \u201cshall take effect\u201d means. The Amendment describes two discrete actions, \u201cvarying\u201d and \u201ctaking effect.\u201d If a law varies compensation when it is enacted regardless of whether members have seen a change to their paychecks, then \u201ctaking effect\u201d must refer to that moment when members are entitled to receive a quantifiable change to their compensation. The court in Boehner<\/em> adopted this reading, equating \u201ctaking effect\u201d with the \u201coperation\u201d of a law varying compensation.[98]<\/a> The court said that this operation occurs \u201cat the earliest [when] the new Congress has been seated.\u201d[99]<\/a><\/p>\n That assumes, however, that the words \u201can election . . . shall have intervened\u201d mean not only that an election has occurred, but also that the new members have taken their seats. An alternative reading of the phrase \u201cshall have intervened\u201d might mean simply that an election has occurred. It turns out that the Boehner<\/em> court\u2019s assumption aligns with the best reading of the Amendment for three reasons. First, before the age of trains, automobiles, and planes, Congress adjourned several months before each election and did not return until several months after them in order to accommodate the long travel times to the furthest reaches of the Republic.[100]<\/a> Second, James Madison\u2014author of the Amendment\u2014understood \u201can election\u00a0.\u00a0.\u00a0. shall have intervened\u201d to mean \u201ca change in the Legislature.\u201d[101]<\/a> He used the latter phrase in a speech describing the Amendment even while presenting the text as currently written, suggesting that he viewed those two phrases interchangeably.[102]<\/a> Finally, the alternative\u2014that an election intervenes the moment it concludes but before new members take their seats\u2014renders nonsensical his and others\u2019 descriptions of the Amendment\u2019s purpose and effect.<\/p>\n James Madison\u2019s apparently casual substitution of \u201cchange in the Legislature\u201d for \u201can election\u00a0.\u00a0.\u00a0.\u00a0shall have intervened\u201d shows that he, at least, viewed the Amendment as delaying the effect of laws varying compensation until new members are seated. The legislature, after all, has not changed until newly elected members take their seats. Unfortunately, Madison\u2019s statement is one of only a very few that illuminates the Framer\u2019s understanding of the Amendment. When, on August 14, 1789, the Committee of the Whole House turned its attention to it, the debate was exceedingly brief.[103]<\/a> Only four members discussed it, one of whom was Madison who responded to a comment from another member that was not related to the Amendment.[104]<\/a> Of the two who commented on the Amendment, one had just three sentences to say about it; the other had but two. Theodore Sedgwick of Massachusetts, seems not to have fully understood the Amendment because his argument\u2014that it might be used by \u201cdesigning men\u201d to gain popularity and exclude poor but meritorious challengers by lowering their own salaries\u2014is a critique better suited to the Ascertainment Clause itself than to the Amendment.[105]<\/a> Jacob Vining of Delaware supported the Amendment because it would avoid \u201cthe disagreeable sensation, occasioned by leaving it in the breast of any man to set a value upon his own work\u00a0.\u00a0.\u00a0.\u00a0.\u201d[106]<\/a><\/p>\n None of that brief debate speaks directly to the meaning of \u201cintervene,\u201d but it does reinforce our understanding that the Framers intended the Amendment to prevent sitting members of Congress from enriching themselves or gaining a political advantage by controlling their own salaries.[107]<\/a> Even Representative Sedgwick\u2019s poorly aimed criticism supports this view because the Amendment attempts to solve the problems he identified, which flow from the Ascertainment Clause. If, as seems clear, the Framers understood the Amendment as preventing sitting members from exploiting changes to their compensation, then \u201can election\u00a0.\u00a0.\u00a0.\u00a0shall have intervened\u201d must mean that a new Congress has been seated. If it does not, then for that brief period of time between an election and a \u201cchange\u201d in the legislature,[108]<\/a> sitting members may change their own compensation and benefit from it. They might even lower compensation so that successful challengers who lack independent means might have to relinquish their newly won seats.<\/p>\n Conclusion<\/strong><\/p>\n The Twenty-Seventh Amendment sparks more debates than its simple text suggests it should, and few courts or scholars have spent much time parsing its text to help resolve those debates. This Essay aims to do that by interpreting the Amendment according to its text and history. That interpretation leads to the following conclusions: \u201claw\u201d has its technical Article I definition (a bill passed by both houses and signed by the president), \u201cvarying compensation\u201d means any increase or decrease to the terms of pre-existing laws enacted pursuant to the Ascertainment Clause, \u201cshall take effect\u201d refers to the moment when members are entitled to receive a quantifiable change to their compensation, and \u201can election\u00a0.\u00a0.\u00a0. shall have intervened\u201d means that a new Congress has been seated. The best reading of the Amendment views it as a narrow provision that sets a timing condition on the operation of laws varying members\u2019 compensation; it does not apply to other government conduct such as House rules that deduct fines from members\u2019 salaries for misconduct. It does, however, inform our understanding of the Ascertainment Clause as prohibiting Congress from delegating its power to set compensation to any other body. The Amendment does not prohibit the passage of any compensation laws. Rather, it simply delays laws varying compensation from taking effect until an intervening House election has occurred. Accordingly, the Amendment cannot be used to strike down laws that do not comply with its timing requirement except in rare circumstances. Instead, the law is best read as providing a default timing term to laws varying compensation that either lack such a term or include a term that does not comply with the Amendment. One or more of those conclusions resolves the existing debates about the Twenty-Seventh Amendment and, hopefully, will do the same for any debates that arise in the future.<\/p>\n <\/p>\n <\/p>\n *\u00a0Legal <\/a>Fellow, The Heritage Foundation; J.D., Georgetown Law Center, 2014; B.A., University of California at Davis, 2011.<\/p>\n **\u00a0John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.P. George Washington University, 2010; J.D. <\/a>Stanford Law School, 1980; B.A. Washington & Lee University, 1977.<\/p>\n We are grateful to John G. Malcolm, Adeola Olowude, Zack Smith, and Amy Swearer for helpful comments on an earlier draft of this Essay. We are also indebted to Nicole Imhof and Lauren McCarthy for their research assistance. The views expressed in this Essay are our own and should not be construed as representing any official position of The Heritage Foundation. Any mistakes are ours (although we are willing to accept volunteers).<\/p>\n [1]<\/a> See<\/em>, e.g<\/em>., Paul J. Larkin, Jr., The Lost Due Process Doctrines<\/em>, 66 Cath. U. L. Rev. 293, 329 (2017) (\u201cEnglish King Ethelbert drafted the first written code in approximately 600 A.D. Consisting of only \u2018ninety brief sentences,\u2019 Ethelbert\u2019s code\u2014composed of dooms <\/em>(\u2018decrees\u2019) not leges <\/em>(\u2018laws\u2019), because the concept of \u2018law\u2019 was as yet unknown in England\u2014was essentially a tariff, a schedule of fines, payable in money known as the wergild<\/em>, that a wrongdoer was obliged to give to the victim of a crime or his kin, principally for murder, mayhem, other acts of violence, or cattle-thievery. The hoped-for goal was to forestall violent retaliation and intertribal warfare.\u201d) (footnotes omitted); id.<\/em> at 327\u201329.<\/p>\n [2]<\/a> See<\/em>, e.g<\/em>., Arthur R. Hogue, Origins of the Common Law (Liberty Fund 1986) (1966); John H. Langbein et al., History of the Common Law (2d ed. 2009); Theodore F. T.\u00a0Plucknett, A Concise History of the Common Law\u00a0(Little, Brown & Co. 5th ed. 1956) (1929).<\/p>\n [3]<\/a> See<\/em>, e.g<\/em>., Oliver Wendell Holmes, The Path of the Law<\/em>, 10 Harv. L. Rev. 457, 460 (1897) (\u201cThe prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.\u201d). See generally<\/em> Benjamin N. Cardozo, The Nature of the Judicial Process (Dover Pubs. 2012) (1921); Oliver Wendell Holmes, The Common Law (Dover Pubs. Rev. ed. 1991) (1881).<\/p>\n [4]<\/a> The day when Congress was the primary federal law-making body, however, is now in the rear-view mirror; the administrative state annually promulgates far more rules than Congress passes statutes. See<\/em>, e.g<\/em>., Rachel Augustine Potter, Bending the Rules: Procedural Politicking in the Bureaucracy 14 (2019) (\u201cBy some estimates, more than 90 percent of American law is created by administrative rules issued by federal agencies.\u201d); Cornelius M. Kerwin & Scott R. Furlong, Rulemaking: How Government Agencies Write Law and Make Policy 2 (4th ed. 2011) (\u201cIncreasingly, rulemaking defines the substance of public programs. It determines, to a very large extent, the specific legal obligations we bear as a society. Rulemaking gives precise form to the benefits we enjoy under a wide range of statutes. In the process, it fixes the actual costs we incur in meeting the ambitious objectives of our many public programs.\u201d); infra<\/em> note 5.<\/p>\n [5]<\/a> See<\/em>, e.g<\/em>., Kisor v. Wilkie, 139 S. Ct. 2400, 2446\u201347 (2019) (Gorsuch, J., concurring in the judgment) (\u201cNow, in the 21st century, the administrative state wields vast power and touches almost every aspect of daily life. Among other things, it produces reams of regulations\u2014so\u00a0many that they dwarf the statutes enacted by Congress. As of 2018, the Code of Federal Regulations filled 242 volumes and was about 185,000 pages long, almost quadruple the length of the most recent edition of the U. S. Code. And agencies add thousands more pages of regulations every year.\u201d) (footnotes and internal punctuation omitted); Kevin R. Kosar, Reasserting Congress in Regulatory Policy<\/em>, in<\/em> 2 Unleashing Opportunity: Policy Reforms for an Accountable Administrative State 19, 19 (Yuval Levin & Emily MacLean eds., 2017) (\u201cIn recent years, Congress has enacted approximately 50 statutes annually on significant subject matter; the executive branch proposes 2,700 new regulations and finalizes another 4,000 rules each year.\u201d) (footnote omitted); Paul J. Larkin, Jr., & GianCarlo Canaparo, Gunfight at the New Deal Corral<\/em>, 19 Geo. J.L. & Pub. Pol\u2019y (forthcoming 2021) (manuscript at 20 & n.78) (on file with authors).<\/p>\n [6]<\/a> See<\/em>, e.g<\/em>., Perez v. Mortg. Bankers Ass\u2019n, 575 U.S. 92, 96 (2015) (agency rules properly issued pursuant to delegated authority \u201chave the \u2018force\u00a0and\u00a0effect\u00a0of\u00a0law\u201d\u2019) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302\u201303 (1979)); see generally<\/em> Paul J. Larkin, Jr., Agency Deference after<\/em> Kisor v. Wilkie, 18 Geo. J.L. & Pub. Pol\u2019y 105 (2020) (discussing whether an agency\u2019s interpretation of its own rules is entitled to deference and, if so, what type and how much).<\/p>\n [7]<\/a> See<\/em>, e.g<\/em>., City of Boerne v. Flores, 521 U.S. 507, 524, 536 (1997) (\u201cThe power to interpret the Constitution in a case or controversy remains in the Judiciary.\u201d); Miranda v. Arizona, 384 U.S. 436, 442 (1966) (\u201cThese precious [Sixth Amendment] rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured \u2018for ages to come, and . . . designed to approach immortality as nearly as human institutions can approach it.\u2019\u201d) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 387 (1821)).<\/p>\n [8]<\/a> See<\/em>, e.g<\/em>., Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2380\u201381 (2020) (\u201cOur analysis begins and ends with the text. . . . It is a fundamental principle of statutory interpretation that absent provisions cannot be supplied by the courts .\u00a0.\u00a0.\u00a0. By introducing a limitation not found in the statute, respondents ask us to alter, rather than to interpret, the [act].\u201d) (citations and internal punctuation omitted); Bostock v. Clayton Cty., 140 S. Ct. 1731, 1738 (2020) (\u201cThis Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.\u201d).<\/p>\n [9]<\/a> See<\/em>, e.g<\/em>., Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (describing the legal effect to be given to an agency\u2019s interpretation of a statute it is responsible for implementing).<\/p>\n [10]<\/a> See<\/em>, e.g<\/em>., Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (describing the legal effect to be given to an agency\u2019s interpretation of one of its own regulations).<\/p>\n [11]<\/a> U.S. Const. amend. XXVII.<\/p>\n [12]<\/a> Which is why there is no merit to the argument, often made by free speech or free exercise advocates, that the First Congress put those guarantees ahead of the other Bill of Rights provisions because the Founding Generation considered those rights more important than the rest. What became the First Amendment was actually third in the list.<\/p>\n [13]<\/a> U.S. Const. art. V (describing the process for amending the Constitution).<\/p>\n [14]<\/a> \u00a0For a very thorough history of the Twenty-Seventh Amendment, from proposal through ratification and early legal challenges, see Richard Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment<\/em>, 61 Fordham L. Rev. 497 (1992). See also<\/em> Edward Dumbauld, The Bill of Rights and What It Means 161, 188, 195, 204\u20135 (Praeger 1979) (discussing how what would become the Twenty-Seventh Amendment came to be included in the original Bill of Rights and providing a detailed overview of the debates about the Amendment\u2019s late ratification and what that meant for Article V). See generally<\/em>, for further discussion: William W. Van Alstyne, What Do You Think About the Twenty-Seventh Amendment?<\/em>, 10 Const. Commentary 9 (1993); Stewart Dalzell & Eric J. Beste, Is the Twenty-Seventh Amendment 200 Years Too Late?<\/em>, 62 Geo. Wash. L. Rev. 501 (1994); Don J. DeBenedictis, 27th Amendment Ratified: Congressional Vote Ends Debate Over 203-Year-Old Pay-Raise Proposal<\/em>, 78 A.B.A. J. 26 (1992); Christopher M. Kennedy, Is There a Twenty-Seventh Amendment? The Unconstitutionality of a \u201cNew\u201d 203-Year-Old Amendment<\/em>, 26 J. Marshall L. Rev. 977 (1993); Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment<\/em>, 103 Yale L.J. 677 (1993); JoAnne D. Spotts, The Twenty-Seventh Amendment: A Late Bloomer or A Dead Horse?<\/em>, 10 Ga. St. U. L. Rev. 337 (1994); Richard L. Berke, 1789 Amendment Is Ratified but Now the Debate Begins<\/em>, N.Y. Times, May 8, 1992, at A1; Don Phillips, Proposed Amendment, Age 200, Showing Life<\/em>, Wash. Post, Mar. 29, 1989, at A23; Kimberly Wehle, Can Members of Congress Carry Firearms On The Capitol Complex?<\/em>, The Hill (Feb. 8, 2021, 9:30 AM), https:\/\/thehill.com\/opinion\/judiciary\/537746-can-members-of-congress-carry-firearms-on-the-capitol-complex [https:\/\/perma.cc\/GWN7-2JWS]; see also<\/em> Yaniv Roznai, Unconstitutional Constitutional Amendments\u2014the Migration and Success of A Constitutional Idea<\/em>, 61 Am. J. Compar. L. 657, 657 (2013) (raising the (in our view, nonsensical) question, without mentioning the Twenty-Seventh Amendment, of whether a constitutional amendment can be unconstitutional).<\/p>\n [15]<\/a> 256 U.S. 368 (1921).<\/p>\n [16]<\/a> Id.<\/em> at 375.<\/p>\n [17]<\/a> Id<\/em>.<\/em><\/p>\n [18]<\/a> Id<\/em>.<\/em><\/p>\n [19]<\/a> See, e.g.<\/em>, Walter Dellinger, Constitutional Politics: A Rejoinder<\/em>, 97 Harv. L. Rev. 446 (1983); Kennedy, supra<\/em> note 14; Spotts, supra<\/em> note 14.<\/p>\n [20]<\/a> Bernstein, supra <\/em>note 14, at 552.<\/p>\n [21]<\/a> See, e.g.<\/em>, Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994) (rejecting the plaintiff\u2019s argument that automatic cost of living adjustments were \u201claws\u201d); Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001) (avoiding the same claim on procedural grounds).<\/p>\n [22]<\/a> See, e.g.<\/em>, Boehner<\/em>, 30 F.3d at 161\u201362 (holding that automatic cost of living adjustments established by statute were not separate \u201claws\u201d within the meaning of the Amendment); Shaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999), aff\u2019d<\/em> on other grounds sub nom<\/em>. Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001) (same as Boehner<\/em>, although the district court\u2019s holding was vacated when the Tenth Circuit reversed on the ground that no plaintiffs had standing).<\/p>\n [23]<\/a> See, e.g.<\/em>, Jonathan D. McPike, Merit Pay and Pain: Linking Congressional Pay to Performance<\/em>, 86 Ind. L.J. 335, 365\u201366 (2011) (considering whether paying members according to \u201cincentive contracts\u201d would violate the Amendment); Adrian Vermeule, The Constitutional Law of Official Compensation<\/em>, 102 Colum. L. Rev. 501, 516\u201321 (2002) (examining the issues raised in Boehner v. Anderson<\/em>, 30 F.3d 156 (D.C. Cir. 1994), as a \u201cveil of ignorance\u201d mechanism).<\/p>\n [24]<\/a> See <\/em>GianCarlo Canaparo, Representatives Go On Offensive Against Pelosi\u2019s Mask Rule, Cite 27th Amendment. Will It Work?<\/em>, Daily Signal (July 29, 2021), https:\/\/www.dailysignal.com\/2021\/07\/29\/representatives-go-on-offensive-against-pelosis-mask-rules-cite-27th-amendment-will-it-work\/; Andrew Solender, Pelosi to Fine House Members Up To $10,000 for Evading Metal Detectors<\/em>, Forbes (Jan. 13, 2021, 9:09 PM), https:\/\/www.forbes.com\/sites\/andrewsolender\/2021\/01\/13\/pelosi-to-fine-house-members-up-to-10000-for-evading-metal-detectors\/ [https:\/\/perma.cc\/2HAT-LYMK] (describing an argument by Representative Thomas Massie that fines imposed for breaking House rules violated the Twenty-Seventh Amendment); Carey Vanderborg, 27th Amendment In Constitution Violated By GOP Budget Bill? House To Vote Wednesday<\/em>, International Business Times (Jan. 23, 2013, 11:27 AM), https:\/\/www.ibtimes.com\/27th-amendment-constitution-violated-gop-budget-bill-house-vote-wednesday-1033836 [https:\/\/perma.cc\/EV4N-533D]; Letter from Representative Andrew S. Clyde to Representative Theodore E. Deutch, Chairman, House Committee on Ethics (Feb. 23, 2021), https:\/\/ethics.house.gov\/sites\/ethics.house.gov\/files\/documents\/Rep.%20Clyde%20Appeal%20Letter.pdf [https:\/\/perma.cc\/J2BL-BTC7] (arguing that fines for violating House rules requiring members to pass through metal detectors violate the Amendment).<\/p>\n [25]<\/a> U.S. Const. art. I, \u00a7 7, cl. 2 (\u201cEvery Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States\u00a0.\u00a0.\u00a0.\u00a0.\u201d).<\/p>\n [26]<\/a> U.S. Const. art. I, \u00a7 6, cl. 1 (\u201cThe Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.\u201d).<\/p>\n [27]<\/a> Id<\/em>. amend XXVII.<\/p>\n [28]<\/a> See<\/em> id<\/em>.<\/em> art. I, \u00a7 7; INS v. Chadha, 462 U.S. 919 (1983). To ensure that Congress cannot evade that intentionally onerous procedure through legislative shenanigans (such as by labeling a \u201cBill\u201d as something else) and create a \u201cLaw\u201d by labeling a proposal as something other than a \u201cBill,\u201d Article I expressly applies to any \u201cBill\u201d and \u201c[e]very Order, Resolution, or Vote\u201d requiring the approval of both chambers other than an \u201cAdjournment.\u201d U.S. Const. art. I, \u00a7 7, cl. 3. That is why Congress cannot escape the Twenty-Seventh Amendment by voting itself a pay raise and calling it a \u201cbonus.\u201d<\/p>\n