What if They Sat Down to Write a Brand-New Constitution?

JACK FRUCHTMAN Jr.

November 04, 1992|By JACK FRUCHTMAN Jr.

''No law, varying the compensation for the services of the Senators or Representatives, shall take effect until an election of Representatives shall have intervened.''

C7 --27th Amendment to the United States Constitution.

This amendment, first proposed by James Madison in 1789, finally made it into the Constitution last May when the requisite number of states ratified it (it takes two-thirds, and Michigan was the last to do so).

Last Thursday just before the elections, 20 members of Congress and nearly 100 congressional challengers filed suit in federal court to halt pay raises which Congress allotted its members in a law enacted in 1989 linking automatic increases to the rise in the cost of living.

The question the courts now have to answer is two-fold. First, there is the obvious one of whether increases in compensation must wait until after a congressional election takes place before they go into effect. In the present case, that would be after the 1994 elections rather than this January 1.

But there is a second, more fundamental, more interesting question, namely whether the 27th amendment is constitutional at all?

When Madison proposed this amendment 203 years ago, it was actually listed as the second among 12 in a set of changes to the new Constitution. These changes we know today as the Bill of Rights.

The states ratified only the last 10. The first, which also failed ratification, involved the issue of equal representation. It re-emerged in the 1960s when the Supreme Court handed down its controversial decision declaring that every person's vote must count equally in the famous ''one-person, one-vote'' rule.

Several court observers have long questioned whether the court should have entered into this arena of politics, because it raised what is known as ''a political question,'' one better handled by the political branches of government, the legislature or executive. This issue curiously will reappear below in another guise.

The original second amendment had to do with restrictions on congressional pay increases. Madison believed that Congress would have a rotating membership. He would be surprised to learn that, today, representatives and senators spend years and years as incumbent members of Congress, so much so that some of the discussion this year has focused on whether there ought to be congressional term limits.

Madison thought that the system the framers had created lent itself to automatic rotation in office. To safeguard against current members of Congress raising their own salaries, he submitted the original second amendment to require that an intervening election take place before the new salaries took effect.

The question the courts will have to answer is whether an amendment first passed by Congress and then ratified some 203 years later is still valid. There is no precedent for this happening but it raises some serious issues. Amendments to the Constitution may be added either by congressional initiative (passed by two-thirds majority) or by the calling of a constitutional convention along the lines of the 1787 Philadelphia convention that drafted the original document. If two thirds of the states request a convention to amend the Constitution, then the convention will come into being.

There is, in fact, a call for such a convention. Thirty-two states issued it in 1967, specifically to overturn the court's one-person, one-vote ruling. Some states that initially requested a new convention have rescinded their call. Others have joined in. Today, 34 states are needed, and at last count the United States was only one state away.

Once a convention comes into being, it may examine any part of the Constitution and recommend changes. Or it could do what the 1787 convention did: instead of recommending amendments the old Articles of Confederation, it simply substituted a brand new document for it. In other words, the convention could recommend that the Constitution be scrapped entirely.

Is 25 years too long for the call of a convention? If the courts hold that 203 years is an acceptable length of time for the ratification of the 27th amendment, then we may see the convening of the first constitutional convention in 205 years. This could pose the greatest constitutional crisis this country has ever witnessed.

It would still take three quarters of the states to ratify any changes the convention proposed. Such agreement (luckily) appears now almost unachievable, given the 203 years it took to ratify Madison's original second amendment.

Jack Fruchtman Jr. directs the prelaw program and teaches politics at Towson State University.

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