The Twenty-Seventh Amendment: Meaning and Application

Abstract

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.

The first step is to place the Amendment within the context of the Ascertainment Clause, which it amends. From there, we look to the Framers’ understanding of the Amendment’s text and we conclude the following: “law” has its technical Article I definition (a bill passed by both houses of Congress and signed by the president), “varying compensation” means any increase or decrease to the terms of pre-existing laws enacted pursuant to the Ascertainment Clause, “shall take effect” refers to the moment when members are entitled to receive a quantifiable change to their compensation, and “an election . . . shall have intervened” means that a new Congress has been seated. The best reading of the Amendment is as a narrow provision that sets a timing condition on the operation of laws varying members’ compensation; it does not apply to other government conduct, such as House rules that deduct fines from members’ salaries for misconduct.

Our interpretation of the text leads to several conclusions about the Amendment’s application. For example, the Amendment does not prohibit the passage of compensation laws, rather it simply delays laws varying compensation from taking effect until an intervening House election has occurred. In other words, it 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. Accordingly, the Amendment cannot be used to strike down laws that do not comply with its timing requirement except in rare circumstances. Moreover, the Amendment informs our understanding of the Ascertainment Clause as prohibiting Congress from delegating its power to set compensation to any other body. One or more of our conclusions resolves the existing debates about the Twenty-Seventh Amendment and, hopefully, will do the same for any debates that arise in the future.