The Twenty-Seventh Amendment Precedent

In 1992, the Office of Legal Counsel (OLC) gave an opinion concluding that the Twenty-Seventh Amendment was valid notwithstanding the two century gap between its proposal and ratification. A footnote in that opinion said the following:

It is conceivable that the goal of consensus, if there is one, could be defeated where the last State to ratify harbors an entirely different intent or purpose in approving the amendment than did the first ratifying States or the proposing Congress. Thus, for example, the meaning of the words of an amendment chosen by the proposing Congress could conceivably change dramatically with the passage of time. If there is a substantive consensus requirement beyond the procedural formalities of Article V, this hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not the case with the Congressional Pay Amendment. The intent and purpose behind this amendment have been consistent from its proposal by Madison to its recent ratification. We, therefore, express no opinion on any hypothetical scenario that may present a more fundamental challenge to the notion of consensus. We conclude only that consensus itself does not necessarily require contemporaneity.

The ERA will present this hypothetical scenario if enough states (under a plausible count) ratify. For now, I think that I am done posting on this subject. I’ll start drafting a paper on the issues raised by the “reboot” of the ERA and post when I have more to say (or if another state does something).

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8 Responses

  1. Joe says:

    If ERA has a broader reach today than it would have generally been understood originally — though it should also have been understood that ratifying the text would have meant some significant development of it (see other provisions) — the “entirely different intent or purpose” test would not have been violated.

    The example of sexual orientation — which some at the earlier time did argue would have been covered [and was one of various reasons it failed] — might be meet some form of “change dramatically” but even that is somewhat debatable. The provision in general would cover mostly the same ground. So, how much difference should matter?

    Take the 27A, a narrow provision. The 27A involves usage of current congressional practices and norms, which very well might not be the same in various respects as originally understood. Ditto current practices involving financial dealings (were cost of living adjustments and so forth so readily familiar then?) and so forth. Is that, even in this narrow area, somehow as significant as sexual orientation being factored in?

    I think the 27A was constitutionally ratified, at least by the understanding of current law. But, it would have been best if Congress formally set-up a new ratification schedule. The states were ratifying at a relatively quick clip. If Congress formally set up a schedule, it very well might have led others to do so too. And, the states that already ratified might have did so again, now understanding fully the modern day world for which the amendment would occupy.

  2. Brett Bellmore says:

    Before you totally drop this topic, may I ask about one point?

    You want to count ratifications that have since expired or been rescinded. But it appears to me you’re also expecting to count as ratifying states that formerly rejected an amendment, and then changed to a favorable vote.

    Isn’t this a tad inconsistent? A bit “Heads I win, tails you lose.”?

  3. Gerard Magliocca says:


    It’s been done before (for the Fourteenth Amendment). This does not mean that Congress must do that if the ERA gets to a point where you could say that 3/4 of the states have ratified. Part of what I’m going to think about is reasons that can be offered to go one way or the other.

    • Brett Bellmore says:

      I’d be hesitant to use the 14th amendment as precedent for anything in regards to ratification procedures; Under 14th amendment precedent, you could station armed soldiers in the state legislative chambers during the ratification vote, too. Want to pass the ERA that way?

      The fact is, however desirable on their face the reconstruction amendments were, to call the way they were ratified “dodgy” would be kind.

  4. Joe says:

    Other than precedent of the 14th Amendment, don’t think it is necessarily inconsistent either.

    Congress under Coleman v. Miller has the political discretion to set terms here — there is no express barrier in the Constitution against restarting the process with a new seven year period. It is some sort of implication. The states generally had a reason to understand that and factor it into their decision-making. Congress already once extended the ERA vote without the first set of states expiring.

    It is the case in various situations that once you formally vote for something, such as a corporate body agreeing to something involving others, that it cannot be rescinded. OTOH, if the corporate body rejects something, they can reconsider. Their “no” vote is not equally final.

  5. Joe says:

    The Bill of Rights were passed in Congress in part because there was an understanding that more than one state only ratified the Constitution because of the assumption it would pass, concern a push for a “second convention” that would threaten the new government would seceed without it and to help get the final two states to join the Union.

    The average person today does not think the 13-15A were tainted because of the background of their ratification. The whole story is interesting to note. For instance, a major reason why the 14A was deemed necessary was because the rights of free blacks were not being protected as shown by special hearings in Congress and so forth. This underlined that a republican form of government was not being protected. The U.S., including Congress, has an obligation to secure republican government. One way for former Confederate states to show they honored republican values was to support the ratification of the 14A. It’s overall useful to remember why the military was around.

    Anyway, the alleged “taint” of the precedent doesn’t change that it is a precedent and in this case we are not using any sort of armed forces as pressure. The precedent involves not counting states that took back their votes. And, the states in question included non-Southern states where federal armed forces were not pressuring them either way. There were repeated attempts to amend the Constitution to make clear that recission was allowed, but they failed.

    • Brett Bellmore says:

      We’re talking about law; The use of armed forces is always a factor in law “enforcement”;

      You suppose no force will be employed if the ERA is ‘ratified’ on the basis of repudiated and expired state endorsements, and then the states that repudiated those endorsements decades ago refuse to accept it has been legitimately ratified? Of course there’ll be force. There’ll be whatever force is needed to force them to accept the new amendment.

      The Reconstruction amendments were a good set of amendments, but there’s no way to avoid the fact that they were basically ratified at gun point, and the means of their ratification is not remotely good precedent for a nation where half the country is occupied territory under military governance.

      But some people don’t care if they win dirty, or about the consequences of winning dirty, so long as they win. That’s what’s going on here.

      • Joe says:

        The specific alleged taint regarding the 14A is not that sort of open-ended possibility of force. It is specifically the presence of military occupation in the Reconstruction Era. And, again, the states for which Congress did not allow a “backsie” included those without that. At the very least, in this specific instance, it is unclear to me how tainted the 14A is. Not that precedents from somewhat tainted processes over a hundred years old lose their force. That would open a big can of worms, since any number of precedents can be flagged to be tainted in some fashion, even if the specific aspect is not.

        I provided context to the passage of the 14A including how the powers that be in former Confederate states “played dirty” to deny the rights of free blacks and in response a process was developed — including the 14A — to protect a republican form of government. It’s unfortunate that the whole process required a special not ideal process, but it’s a bit risible to selectively examine the situation like you wish to do. As I said, the Bill of Rights itself was not merely created freely. It was seen as a necessity in various ways, so it too was not merely some normally established set of amendments. In various cases, amendments might be ratified with something hanging over the ratifiers. As is the case in certain cases for laws and treaties.

        History determines if they are worth the candle. How “dirty” the 13A is especially dubious there. It was generally understood, even by the defeated Confederate states, that loss on the battlefield there would realistically amount to the end of slavery. Just as it was generally understood ratification of the Constitution would warrant the acceptance of the Bill of Rights.