A recent article by a couple of Columbia law professors named David E. Pozen and Thomas P. Schmidt raises a fascinating question about why the 27^th Amendment is in the Constitution and why the would-be 28^th, the Equal Rights Amendment, is not.  Quick answer: no one knows.

The 27^th is the Congressional Pay Amendment, which entered the Constitution in 1992 after a bizarre 202-year journey.  What it says, basically, is that while senators and representatives can vote themselves a pay hike, they should know that it won’t go into effect until after the next biennial election so voters can weigh in on whether they deem it justified or not.  It’s an anodyne bit of legal prose that cleared the two-thirds hurdle in Congress in 1789, but then entered into a kind of constitutional limbo after winning approval in only six of the original 13 states, four less than needed for ratification.

There it remained for close to a century until the Ohio state legislature ratified it out of the blue to protest Congress’s decision to award itself a hefty retroactive raise in the so-called “Salary Grab” Act of 1873.  Then it was sleepy-time again until the early 1980s when a University of Texas student named Gregory D. Watson stumbled across it while researching a school paper.  The story goes that Watson’s professor gave him a C because she couldn’t believe that the amendment was still a live issue after all these years.  Cheekily, Watson set out to prove her wrong by circulating it among the states.  Since the amendment accorded perfectly with the anti-government mood of the day, it began picking up support.  Michigan became the 38^th state to ratify in March 1992, putting it over the edge.

This was astonishing.  Supposedly the purpose of a triple super-majoritarian amending process is to give Americans time to reach a genuine consensus.  But this was the opposite, a series of scattered and disconnected votes over the course of centuries with no opportunity for “we the people” – today’s people, that is – to come together to discuss the amendment as a whole.  The Justice Department’s Office of Legal Counsel declared the amendment valid because Article V says nothing about a time limit even though the Supreme Court wrote in 1921 (in a case called Dillon v. Gloss) that a reasonable limit was implicit in the text.  The OLC also said that Congress had no say in the matter even though seven justices had said the opposite in 1939.  Senator Robert Byrd of West Virginia, famous for carrying around a copy of the Constitution in his shirt pocket, protested that only “Congress should … decide [such] substantive questions.”  Since Article V makes no mention of an executive-branch role whatsoever, he would appear to be correct.  But Congress submitted to the OLC regardless.  It was yet another example of mindless deference to textual authority even though the outcome is plainly ridiculous.

The story of the Equal Rights Amendment is the reverse.  Approved by the House in October 1971 and then by the Senate five months later, it racked up its 38^th state approval when Virginia voted to ratify in 2020.  It had taken half a century.  But by the logic of the 27^th Amendment, it was over the top.

Except that it wasn’t.  One reason is that Congress had imposed a seven-year deadline on the process plus a three-year extension.  But that still wasn’t enough time to garner the necessary state approvals.  Moreover, with the late Phyllis Schlafly fanning the anti-ERA flames, five states had bowed to rightwing pressure and voted to rescind, so it wasn’t clear if 38 states had approved, 33, or what.

Wait – does Article V even allow states to rescind?  There’s nothing indicating that in the text, and the implications are mind-blowing if it does.  If states can rescind their votes on the 28th Amendment, for instance, can they rescind it on the First?  How about the 13^th Amendment abolishing slavery – can they rescind that as well?  Perhaps there should be a rule saying that states can only rescind amendments that are still pending.  But who will make such a rule and how will it be approved – via another constitutional amendment?

As to the deadline, why were two centuries OK for the 27^th Amendment but half a century not OK for the 28^th?  If Congress could impose a time limit in one instance, why couldn’t it impose a retroactive time limit in another by declaring that 200-plus years is too long?  If the states were able to bring the 27^th Amendment back to life, moreover, are there other sleeper amendments waiting in the wings for rightwing activists to re-awaken as well?

This is not idle speculation.  As Pozen and Schmidt note, something known as the Titles of Nobility Amendment, which forbids Americans from accepting a title “from any emperor, king, prince, or foreign power,” cleared Congress in 1810 and had won approval in a dozen states as of 1812.  This was two states short of passage.  But does that mean that only 26 states are now required for ratification?

The Titles of Nobility Amendment is at the center of one of those marvelously ornate conspiracy theories that hold that the “Esquire” that lawyers put after their name is also a title of nobility and that the entire legal profession therefore amounts to a giant anti-constitutional plot.  In 2010, Iowa Republicans included a plank in their party platform calling for “the reintroduction and ratification of the original 13th Amendment” so attorneys could be barred from public life and complicated legal cases could be tried by ordinary citizens untrained in the law.

Swell, eh?  But the real problem is there’s no clear answer if someone decides to resurrect it after all.  There’s no mechanism for sorting such difficult questions out, no procedure for deciding what the Constitution’s decidedly complicated amending clause says, nothing.  Some might argue that the Supreme Court should take control, but this would open a can of worms as well.  If the court can decide if certain proposed amendments are unconstitutional, can it limit the amending process in general?  What happens if Americans approve an amendment limiting the court’s own power?  Could the court limit that too?

Moreover, if the court can declare a proposed amendment to be unconstitutional, can it declare existing amendments to be unconstitutional too?  The most obvious examples, of course, are the post-Civil War amendments adopted between 1865 and 1870, not only the 13^th abolishing slavery but the 14^thdeclaring that all Americans are entitled to “the equal protection of the laws” and the 15^th declaring that the right to vote “shall not be denied or abridged … on account of race, color, or previous condition of servitude.”  Pozen and Schmidt, noting that the Union-controlled Congress used all sorts of tricks to ram the amendments through, say that their ratification pushed Article V “to the breaking point.”  This is unquestionably correct; indeed, it’s what made them so revolutionary.  But it’s also what renders them vulnerable to this sort of challenge. A smart conservative scholar should have no trouble proving that they’re on dubious constitutional grounds, an argument that an ultra-right court just might accept.

The mind reels.  Pozen and Schmidt’s answer to the Article V conundrum is what one might call a neo-Byrdian solution, although the authors prefer to describe it as “Thayerian” after a Harvard law professor named James Bradley Thayer who argued in 1893 that the Supreme Court should defer to Congress when it came to deciding constitutional issues rather than the other way around.  But the point is that only Congress has the democratic standing to take the amending process in hand.  If it thinks that the Congressional Pay Amendment is invalid according to any reasonable interpretation of the Article V text, then invalid it is, OLC or no OLC.  If it decides that resurrecting the Titles of Nobility Amendment after all these years is absurd, then out it goes.  By the same token, if it decides that the ERA has been properly ratified after all, then so be it.  Indeed, a Thayerian resolution declaring the ERA to be part of Constitution came up for a vote in the Senate in April.  As Kate Shaw, a New York Times opinion writer, and Julie C. Suk, a professor at Harvard Law School, wrote in the Times, the goal was not just to approve the amendment itself but to establish the broader principle “that constitutional amendment is possible” and that this “is one area in which Congress, not courts, gets the final say.”

Hear, hear.  Such a resolution would be the most important constitutional reform since Reconstruction.  Instead of an arduous two-thirds, three-fourths process, the people would be able to decide if an amendment is in or out via their elected representatives in a simple up-or-down majority vote.  But the resolution failed not because it fell short of a majority – it got 51 votes – but because it ran afoul of the Senate’s ridiculous filibuster rules, which require a 60-vote super-majority.  Since its chances of passage in the Republican-controlled House are nil, Thayerianism seems to have died aborning.

But wait – it gets worse.  Suppose the Senate had passed the resolution and suppose by some miracle the House had too.  What then?  Republicans would undoubtedly cry foul and file suit, meaning that the issue would wind up before the Supreme Court after all.  Rather than countenancing a fundamental power shift from the judicial to the legislative branch, the best guess is that people like Clarence Thomas and Sam Alito would slap Democrats down in a flash.  But even if they agreed to an expansion of Congress’s role, they would likely surround it with so many rules and qualifications as to render it nugatory.  Congress would wind up under the court’s authority after all.  So whether you call it Thayerianism, neo-Byrdism, or whatever, the bottom line is that it would be doubly kaput. 

Thayerianism is the weakest part of what is otherwise one of the most brilliant law-review articles in years.  Presumably, the authors felt obliged to end on a “constructive” note, but if that’s the case, they failed.  In the end, Article V, like the rest of the Constitution, rests on a fallacy, which is that an inert document can somehow set things right on its own without real, live human beings having to intervene.  All we have to do, evidently, is sit back and let the Constitution do our thinking for us and everything will work out.  

But it won’t.  The accelerating decay that we see all around us is proof that an ancient and unchangeable constitution is no substitute for human intelligence in the here-and-now. Everyone has to take part in a process of collective “mentation” in which “we the people” work our way through such issues not via the elaborate process outlined in Article V, but via free elections, democratic debate, and simple majority votes.  Instead of what the founders want us to do, we’ve got to figure out what we want to do instead.  Constitutional scholars are like math students covering a blackboard with endless equations in a vain attempt to solve a problem.  Since the denser the scrawl, the greater the confusion, the only solution is to wipe the slate clean and think the problem over from scratch.  That’s what Americans – led, of course, by the working class – need to do now, i.e. wipe the slate clean of all that 18^th-century gobbled-gook and think through modern problems afresh – in a modern democratic way.  The Constitution is an immense burden, and the only solution is to cast it off.