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The twenty-seventh session of the Commission, held from 28th June to 3rd July 2004, was attended by 402 participants representing 89 governments and 37 international governmental and non-governmental organisations.
First, no time limit accompanied the Twenty-Seventh Amendment; the Equal Rights Amendment, by contrast, has exhausted not one, but two such limits.
Second, unlike the Twenty-Seventh Amendment, which unquestionably got more popular with age,(15) at least five states attempted to rescind their initial ratification of the ERA, some in response to the extension of the initial time limit.(16) Were additional states to ratify an allegedly revived ERA, a question would immediately arise whether those rescissions were valid.
Even if the Twenty-Seventh Amendment did set a precedent, those hoping that Fortune will likewise smile on the ERA's third bid for ratification should stop to consider what sort of precedent was set.
If, as scholars suggest,(33) ratification of the Twenty-Seventh Amendment was dubious, at best, should we even contemplate compounding error by pressuring Congress to approve yet another product of such an irregular process?(34) Are proponents of ratification willing to devote the time and energy necessary to resolve all of the legal controversies swirling around the ERA--validity of rescissions, the constitutionality of the 1979 extension, and the like?
(9.) See Twenty-Seventh Amendment, in Vile, Encyclopedia of Constitutional Amendments at 323 (cited in note 1); see also Kyvig, Amending the U.S.
(14.) Professor Tribe wrote that the ratification of the Twenty-Seventh Amendment "refocused scholarly attention on whether there exist any constitutional limits on the amount of time that may pass between proposal and ratification of an amendment"--drolly adding that "[i]f there are to be any such limits, it would seem that the more than two-century span represented by the Twenty-seventh Amendment would implicate them." Tribe, 1 American Constitutional Law at 102 (cited in note 5) (footnote omitted).
The case of the Twenty-Seventh Amendment seems to demonstrate the weaknesses of both approaches.
For further discussion of this issue, see Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J.
(21.) There are three reported cases that discuss the Twenty-Seventh Amendment.
(22.) Because federal courts will not hear "generalized grievances," or suits in which a plaintiff's harm (here, congressional violation of the Twenty-Seventh Amendment), is shared by millions of citizens, members of Congress appear to be the only ones possessed of the requisite "standing" to challenge the cost-of-living increases for itself in court.
At any rate, the court provides no answer to the argument that allowing a congress prospectively to raise the salaries of future congresses in perpetuity (all of whom can thereafter disclaim responsibility for the salary increases) essentially guts the Twenty-Seventh Amendment.
Anderson heaps scorn on the idea that the Twenty-Seventh Amendment in any way affected the validity of the COLAs and the Ethics Reform Act of 1989.
That Judge Sporkin seemed unwilling even to consider those arguments suggests that he did not take the Twenty-Seventh Amendment very seriously.
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