Federal Desk BookConstitution Annotated

Twenty-Seventh Amendment — Congressional Compensation

Twenty-Seventh Amendment

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

Amdt27.1 Overview of Twenty-Seventh Amendment, Congressional Compensation

Referred to the state legislatures at the same time as those proposals that eventually became the Bill of Rights, the Congressional Pay Amendment had long been assumed to be dead.1 This provision had its genesis, as did several others of the first amendments, in the petitions of the states ratifying the Constitution.2 It was ratified, however, by only six states (of the eleven needed), and it was rejected by five states. Aside from the idiosyncratic action of the Ohio legislature in 1873, which ratified the proposal in protest of a controversial pay increase adopted by Congress, the pay limitation provision lay dormant until the 1980s. Then, an aide to a Texas legislator discovered the proposal and began a crusade that culminated some ten years later in its ratification.3

Appx.1 Methodologies for the Tables

Appx.1.1 Constitution Annotated Tables Generally

The following essays provide background on and explanations of the methodologies used to compile the tables in the Resources section of the Constitution Annotated website. These tables include the “Table of Supreme Court Decisions Overruled by Subsequent Decisions;”1 the “Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court;”2 the “Table of Supreme Court Justices;”3 “Beyond the Constitutional Annotated: Table of Additional Resources;”4 and the “Table of Cases.”5 The “Table of Supreme Court Decisions Overruled by Subsequent Decisions;” the “Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court;” the “Table of Supreme Court Justices;” and the “Table of Cases” are included in the 2022 edition of the Constitution Annotated. “Beyond the Constitution Annotated: Table of Additional Resources” is available online.

Appx.1.2 Methodology for the Table of Supreme Court Decisions Overruled by

Subsequent Decisions

The Table of Supreme Court Decisions Overruled by Subsequent Decisions1 lists Supreme Court decisions regarding an interpretation of constitutional law, which the Supreme Court subsequently overruled. In accordance with the underlying purposes of the Constitution Annotated, this list is intended to provide a consistent, objective assessment of changes in Court precedent. While Justices2 and commentators3 frequently assert in legal debates that a given decision has overruled a prior decision, such assertions may be speculative or reflect subjective interpretations, resulting in diverse opinions on whether a given case has, in fact, been overruled.4 Oftentimes, knowledge of the Court’s subsequent actions is necessary to determine whether and the extent to which a particular case can be said to have overturned precedent.5

In order to ensure that cases are identified as overruled in a consistent and objective manner, the Constitution Annotated adopted fixed criteria. Specifically, for a decision to be listed as overruled, a majority of the Court must have explicitly stated, in a subsequent decision, that the case has been overruled6 or used language that is functionally equivalent.7 While this approach may result in a list that is narrower than similar lists in other sources, it provides consistent and objective treatment, adhering to the Court’s repeated statements that only the High Court has “the prerogative of overruling its own decisions.”8

The table also includes decisions that the Court has only partially overruled or otherwise qualified. For example, in United States v. Hatter, the Court overruled Evans v. Gore “insofar as [Evans] holds that the Compensation Clause forbids Congress to apply a generally applicable, nondiscriminatory tax to the salaries of federal judges, whether or not they were appointed before enactment of the tax.”9 Similarly, in Fulton Corp. v. Faulkner, the Court distinguished an earlier decision’s treatment of the Equal Protection and Commerce Clauses, stating: “To the extent that Darnell evaluated a discriminatory state tax under the Equal Protection Clause, time simply has passed it by . . . . [W]hile cases like Kidd and Darnell may still be authorities under the Equal Protection Clause, they are no longer good law under the Commerce Clause.”10

This approach necessarily excludes certain cases that other sources may list as overruled. For example, the table does not include cases that the Court distinguished or limited11 or cases identified by concurring or dissenting Justices or commentators as overruled,12 unless such cases have also been expressly overruled by a majority of the Court. Similarly, cases that the Court treats as discredited, but has not expressly overruled, are not included in the table.13 In addition, in order to avoid imputing findings to the Court with respect to particular cases, the table does not include cases that, arguably, rely on overruled precedent, unless the Court has also expressly identified such cases as overruled.

The table does not include cases where the Court issued a ruling on the merits after having split evenly on the issue previously,14 or where the Court reversed an earlier procedural ruling (e.g., lifting a previously issued stay).15 While some sources list such cases,16 the Constitution Annotated does not. The table also does not address subsequent developments, such as the enactment of statutory or constitutional amendments, which may functionally “reverse” the Court’s decisions.17 In other words, the table focuses on the Supreme Court’s actions and, in particular, the frequency and manner in which the Court has reversed itself. As such, the table does not necessarily reflect the current state of the law on a given issue.

For purposes of this table, decisions are identified as overruling when the High Court characterizes them as such. While it is not uncommon for the Court to note that an earlier decision has been “eroded by . . . subsequent decisions,”18 or “cannot be reconciled with later decisions of th[e] Court,”19 cases that the Court may consider to have effectuated such “erosion” or legal change are not included in the table unless the Court expressly found such cases to overrule precedent.

Similarly, with overruled decisions, the table includes only decisions the Court has expressly identified as overruled. While the Court often refers to a decision by name when overruling it—stating, for example, “Haddock v. Haddock is overruled . . . ,”20 or “We now expressly overrule Spaziano and Hildwin . . .”21—in some cases, the Court may identify several decisions related to a particular legal doctrine and then state that the doctrine is overruled.22 In such circumstances, cases that the Court expressly identifies in the overruling decision are listed, insofar as the overruling decision evidences that the Court contemplated such cases when deeming the doctrine overruled. Decisions that may rely on an overruled doctrine, but are not identified by the Court as such, are not listed in order to avoid imputing findings to the Court that it did not intend.

The table was compiled by searching the LEXIS database for all Supreme Court decisions that use the word “overrule” in the headnotes, syllabus, or text of the Court’s opinion.23 The results were then reviewed to ascertain the Court’s exact meaning with respect to its earlier decisions. Decisions supported by a majority of the Court that expressly overruled an earlier decision or used functionally equivalent language were listed in the table. These findings were also cross-checked with other sources to ensure that the search had captured any relevant results.24

The table is arranged in chronological order by the date of the overruling decision. For each overruling decision listed, the table gives (1) the name of the overruling decision; (2) the date of the overruling decision; (3) the name of the overruled decision; and (4) the date of the overruled decision.

Appx.1.3 Methodology for the Table of Laws Held Unconstitutional in Whole or in

Part by the Supreme Court

The Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court1 is undergoing significant revisions and will be updated more fully as broader review of the Constitution Annotated continues. This table provides preliminary revisions to prior versions of the table, listing Supreme Court decisions that invalidated a law on constitutional grounds. It includes cases invalidating federal laws, state constitutional or statutory provisions, and local laws. The table does not include cases in which the Supreme Court held that a state or local law was preempted, as those cases tend to hinge on an interpretation of positive federal law as opposed to a substantive interpretation of a particular constitutional provision. Moreover, the table generally includes only cases in which the Court held that a statute was facially unconstitutional and does not include as-applied challenges. In addition to giving the case citations, the Table indicates the term in which the opinion was released, the opinion’s author, and the general subject matter of the case. The table also briefly summarizes the law that was held unconstitutional and identifies what portion of the U.S. Constitution the law violated.

Appx.1.4 Methodology for the Table of Supreme Court Justices

The Table of Supreme Court Justices1 lists all Supreme Court Justices along with brief biographical information (Supreme Court Term Start and End, Appointing President, and Noteworthy Opinions). The “Supreme Court Term Start” is the date on which the Justice was sworn in, including recess appointments.2 The “Supreme Court Term End” is the date on which the Justice stopped serving on the Court.3 “Notable Opinion(s)” lists landmark cases authored by the Justice addressing constitutional law issues.4

Appx.1.5 Methodology for Beyond the Constitution Annotated: Table of

Additional Resources

Beyond the Constitution Annotated: Table of Additional Resources1 lists and provides links to publicly available Congressional Research Service (CRS) written products, including reports and Legal Sidebars, pertaining to the Constitution. This table also archives the CRS products that have been featured on the Constitution Annotated homepage under “Featured Issues.” The table identifies constitutional provisions and subjects addressed. Because of the volume of materials on this table, the table is not reproduced in the 2022 edition of the Constitution Annotated but is available online.

Appx.1.6 Methodology for the Table of Cases

The Table of Cases1 is a comprehensive list of cases cited in the Constitution Annotated alongside the Constitution Annotated essays in which the citations are located. It is not a Table of Authorities, so it does not include citations to other types of authorities such as books, law journals, periodicals, reports, and others.

Notes
  1. Indeed, in Dillon v. Gloss, 256 U.S. 368, 375 (1921), the Court, albeit in dictum, observed that, unless the inference was drawn that ratification must occur within some reasonable time of proposal, “four amendments proposed long ago—two in 1789, one in 1810 and one in 1861—–are still pending and in a situation where their ratification in some of the States many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more States to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable.” (Emphasis supplied). ↩
  2. A comprehensive, scholarly treatment of the background, development, failure, and subsequent success of this Amendment is Richard Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 FORD. L. REV. 497 (1992). A briefer account is The Congressional Pay Amendment, 16 Ops. of the Office of Legal Counsel, U.S. Dept. of Justice 102, App. at 127–136 (1992) (prelim. pr.). ↩
  3. The ratification issues are considered in the discussion of Article V. ↩
  4. This table is available online at https://constitution.congress.gov/resources/additional-resources/. ↩
  5. This table is available online at https://constitution.congress.gov/resources/cases-cited/. ↩
  6. See, e.g., United States v. Rabinowitz, 339 U.S. 56, 66 (1950) (“To the extent that Trupiano v. United States . . . requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled.”); Brenham v. German Am. Bank, 144 U.S. 173, 187 (1892) (“We, therefore, must regard the cases of Rogers v. Burlington and Mitchell v. Burlington, as overruled in the particular referred to, by later cases in this court.”). ↩
  7. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) (“For the foregoing reasons, we conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm’n . . . is out of harmony with the views here set forth, we no longer adhere to it.”); Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 218 (1925) (“So far as the language of Baltic Mining Co. v. Massachusetts . . . tends to support a different view it conflicts with conclusions reached in later opinions and is now definitely disapproved.”). While the “functional equivalent” standard invites judgment calls about whether a case should be included, at a minimum, the majority opinion must discuss the case being overturned and have some clear language indicating the court is rejecting some principle announced in the earlier case to be included in the table. ↩
  8. Agostini v. Felton, 521 U.S. 203, 237 (1997) . See also Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”). ↩
  9. 532 U.S. 557, 567 (2001). See also Lapides v. Bd. of Regents of Univ. System of Ga., 535 U.S. 613, 623 (2002) (“[F]or these same reasons, we conclude that Clark, Gunter, and Gardner represent the sounder line of authority. Finding Ford inconsistent with the basic rationale of that line of cases, we consequently overrule Ford insofar as it would otherwise apply.”). ↩
  10. 516 U.S. 325, 345 (1996). See also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996) (“Without questioning the holding in LaRue, we now disavow its reasoning insofar as it relied on the Twenty-First Amendment.”). ↩
  11. See, e.g., United States v. Class, 313 U.S. 299, 317 (1941) (“In Newberry v. United States, . . . four Justices of this Court were of opinion that the term ‘elections’ in §4 of Article I did not embrace a primary election, since that procedure was unknown to the framers. A fifth Justice, who with them pronounced the judgment of the Court, was of opinion that a primary, held under a law enacted before the adoption of the Seventeenth Amendment, for the nomination of candidates for Senator, was not an election within the meaning of §4 of Article I of the Constitution, presumably because the choice of the primary imposed no legal restrictions on the election of Senators by the state legislatures to which their election had been committed by Article I, § 3. The remaining four Justices were of the opinion that a primary election for the choice of candidates for Senator or Representative were elections subject to regulation by Congress within the meaning of §4 of Article I. The question then has not been prejudged by any decision of this Court.”); In re Ayers, 123 U.S. 443 (1887) (distinguishing Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824) ). ↩
  12. See, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 634–35 (1974) (Stewart, J., dissenting) (“Yet the Court today has unmistakably overruled a considered decision of this Court that is barely two years old, without pointing to any change in either societal perceptions or basic constitutional understandings that might justify this total disregard of stare decisis.”); Berger v. New York, 388 U.S. 41, 64 (1967) (Douglas, J., concurring) (“I join the opinion of the Court because at long last it overrules sub silentio Olmstead v. United States . . . and its offspring and brings wiretapping and other electronic eavesdropping fully within the purview of the Fourth Amendment.”). ↩
  13. In a few instances, this approach may have counterintuitive results, such as the list’s treatment of Plessy v. Ferguson. 163 U.S. 537 (1896). This 1896 decision, which held that the provision of “separate but equal” accommodations for African Americans does not run afoul of the constitutional guarantee of equal protection, is sometimes said to have been overruled by the Court’s 1954 decision in Brown v. Board of Education. 347 U.S. 483 (1954). However, Brown’s language is more limited, stating only that “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place,” ( Id. at 495.) and distinguishing potentially conflicting case law as simply not addressing the ultimate holding in Brown, 347 U.S. at 491 (noting that “in Cumming v. County Board of Education, 175 U.S. 528 (1899), and Gong Lum v. Rice, 275 U.S. 78 (1927), the validity of the doctrine [of ‘separate but equal’ in public education] itself was not challenged.”). Instead, the list provides that Plessy was firmly repudiated by the Court in a much later case, Bob Jones University v. United States, 461 U.S. 574 (1983). ↩
  14. Compare Chesapeake & Ohio Ry. v. Leitch, 276 U.S. 429 (1928) (rehearing), with Chesapeake & Ohio Ry. v. Leitch, 275 U.S. 507 (1927) (per curiam) (affirming the decision of the lower court by a vote of four votes to four votes). ↩
  15. See, e.g., Paramount Publix Corp. v. Am. Tri-Ergon Corp., 293 U.S. 528 (1934) (reversing a prior order denying certiorari). ↩
  16. Albert P. Blaustein & Andrew H. Field, “Overruling” Opinions in the Supreme Court, 57 MICH. L. REV. 151, 184–89 (1958/1959). ↩
  17. For example, the table lists the Court’s 1944 decision in United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944) as reversing its 1869 decision in Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869), without noting that Congress subsequently enacted the McCarran-Ferguson Act to exempt the business of insurance from most federal regulation, a law that negates Paul. See, e.g., Willy E. Rice, Federal Courts and the Regulation of the Insurance Industry: An Empirical and Historical Analysis of Courts’ Ineffectual Attempts to Harmonize Federal Antitrust, Arbitration, and Insolvency Statutes with the McCarran-Ferguson Act, 1941–1993, 43 CATH. U. L. REV. 399, 401 (1994) (“South-Eastern Underwriters effectively overruled Paul and created major turbulence within the insurance industry. Congress responded to the crisis by enacting the McCarran-Ferguson Act (the Act).”). ↩
  18. Katz v. United States, 389 U.S. 347, 353 (1967) (“We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the “trespass” doctrine there enunciated can no longer be regarded as controlling.”). ↩
  19. California v. Thompson, 313 U.S. 109, 116 (1941) (“The decision in the Di Santo case was a departure from this principle which has been recognized since Cooley v. Board of Port Wardens . . . It cannot be reconciled with later decisions of this Court which have likewise recognized and applied the principle, and it can no longer be regarded as controlling authority.”). ↩
  20. Williams v. North Carolina, 317 U.S. 287, 304 (1942). ↩
  21. Hurst v. Florida, 577 U.S. ___, No. 14-7505, slip op., at 9 (2016) . ↩
  22. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114–15 (1984) ( “The dissent in Larson made many of the arguments advanced by Justice Stevens[‘] dissent today, and asserted that many of the same cases were being overruled or ignored. Those arguments were rejected, and the cases supporting them are moribund. Since Larson was decided in 1949, no opinion by any Member of this Court has cited the cases on which the dissent primarily relies for a proposition as broad as the language the dissent quotes. Many if not most of these cases have not been relied upon in an Eleventh Amendment context at all.”); Elkins v. United States, 364 U.S. 206, 208 (1960) (“In a word, we re-examine here the validity of what has come to be called the silver platter doctrine. For the reasons that follow we conclude that this doctrine can no longer be accepted.”). ↩
  23. This search strategy was selected because preliminary searches using other terms—including, but not limited to, “stare decisis”—suggest that the strategy previously noted would be effective in capturing decisions where the Court explicitly uses the word “overrule,” as well as decisions where the Court uses other express language that can be seen to be tantamount to overruling. See supra note 3. ↩
  24. See, e.g., Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 GEO. WASH. L. REV. 68 (1991/1992); MICHAEL J. GERHARDT, THE POWER OF PRECEDENT (1990); Jon D. Noland, Stare Decisis and the Overruling of Constitutional Decisions in the Warren Years, 4 VAL. U.L. REV. 101 (1969/1970); S. Sidney Ulmer, An Empirical Analysis of Selected Aspects of Lawmaking of the United States Supreme Court, 8 J. PUB. L. 414 (1959); Blaustein & Field, supra note 16; Charlotte C. Bernhardt, Supreme Court Reversals on Constitutional Issues, 34 CORNELL L.Q. 55 (1948/1949); WILLIAM O. DOUGLAS, WE THE JUDGES (1965); William O. Douglas, Stare Decisis, 49 COLUM. L. REV. 735 (1949); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–09 nn.1–4 (1932) (Brandeis, J., dissenting); Payne v. Tennessee, 301 U.S. 808, 830 (1991). ↩