THE SEEMING FUTILITY OF AMENDING THE US CONSTITUTION

The background to this triumphant story is the revered but virtually immutable US Constitution—the archetypal “unmoved mover.” As this readership well knows, the Constitution is amended infrequently: only 27 amendments have been added since its enactment in 1789, and 10 of those were tacked on only two years after adoption. Remarkably, members of Congress and interest groups continue to attempt to amend the Constitution, seemingly determined to prove Einstein’s definition of insanity. Congressional archives include almost 14,000 proposals to amend the Constitution since 1789.Footnote ¹ In its 2017–18 session, Congress considered 71 such proposals, which is typical in recent years (sessions in the early 1990s produced approximately 150 per year). In addition to these 14,000 proposals, countless other efforts that have not seen the light of day. Historian Jill Lepore (Reference Lepore2022) has embarked on a comprehensive and fascinating project of uncovering, collecting, and cataloguing every one of the attempts that have been formulated as a bill, as well as those proposed at the fringes of US society.

The rich set of amendatory proposals includes common grievances with US democracy over the years. For example, proposals regularly surface (most recently in 2019) that would abolish the Electoral College, one of the few indirect methods of presidential selection remaining in the world (Cheibub, Limongi, and Przeworski Reference Cheibub, Limongi and Przeworski2022), and one that seems especially likely these days to produce results in variance with the popular vote. Almost as frequently, legislators propose language that would require a balanced budget, introduced on 10 separate occasions and dating as far back as 1943. In Groundhog Day fashion, a balanced budget was the first legislative proposal of the 2019–2020 in the House. A recent proposal would undo the controversial 2010 Citizens United Supreme Court decision, which lifted restraints on campaign financing. Another episodically relevant proposal is the so-called Ludlow Amendment, named for Indiana Representative Louis Ludlow, who presented the first such joint resolution in the 1930s. This amendment would require citizens to approve (by referendum) a foreign war, based on the argument that it is citizens (not legislators) who bear the costs of fighting. Some of these amendments seem to be quixotic and have limited appeal; others are seemingly highly consensual proposals but nevertheless have failed to reach the finish line. Who could oppose equal rights for individuals without regard to sex? Apparently, the 15 state legislatures that failed to ratify the Equal Rights Amendment (ERA) within the appointed time did.

The “appointed time” turns out to be critical to this narrative, as does the ERA. Beginning in 1917, most proposed amendments (including the ERA) have had a “sunset” provision. That is, after passage by two thirds of each house of Congress, a proposed amendment is stamped with an expiration date—usually seven years—before which the proposal must be ratified by the requisite three quarters of state legislatures or by special ratifying conventions, as in the case of the unique ratification of the 21st Amendment in 1933. If three quarters of the states have not approved the amendment by the specified date, the proposal is considered invalid (although some argue that such a constraint is not binding). The ERA, passed by Congress on March 22, 1972, had a seven-year expiration date. The enthusiasm following the early years of the ERA’s passage was such that many states ratified the amendment within the first year. However, by 1978, the proposal was still three votes short of the required 38.Footnote ² With victory seemingly so near, Congress passed—and President Jimmy Carter signed—a controversial extension of the ratification deadline by more than three years to June 30, 1982. Even that extra time was not enough to coax any of the remaining states (concentrated in the Southeast and the West) across the finish line (Mansbridge Reference Mansbridge2015).

Nevertheless, the ERA—seemingly destined to be the 27th Amendment—played a critical, if accidental, role in the passage of what would become the 27th Amendment. In an interesting twist, the actual 27th Amendment is now giving new life to the ERA. Apparently, the two contending 27th Amendments have borrowed strength from one another.

TWO TEXANS AND A CONSTITUTIONAL HAIL MARY

Enter Gregory Watson, the unlikely hero of the 27th Amendment. Watson was an undergraduate business major at the University of Texas (UT) at Austin in the 1980s. Like all UT undergraduates, Watson was required by state law to take two courses with content on the federal and state constitutions.Footnote ³ In the spring of 1982, Watson enrolled in Government 310L, one of two introductory courses designed to satisfy the state requirement.

Teaching Government 310L was Sharon Waite, a newly minted PhD from the University of North Carolina. Waite had been a UT undergraduate and, importantly, one of the first enrollees in a small, interdisciplinary honors program (Plan II) designed to provide a liberal arts experience within a large research university. Waite was determined to replicate her undergraduate experience in the context of a 200-student course. That meant papers, not only closed-ended exams.Footnote ⁴ One assignment was to write a paper that documented some aspect of American government.

Watson chose to focus on the ERA. Combing the stacks of the Austin Public Library, he stumbled on a book that recounted a history of unratified constitutional amendments in the United States. Among them were two amendments proposed by James Madison that were adopted by Congress in 1789 but never ratified by the requisite three quarters of the states. Madison originally proposed 17 amendments, 12 of which were adopted by Congress. Ten of the twelve congressionally-adopted amendments were ratified by the states in 1791 and became known as the Bill of Rights, leaving two amendments passed by Congress but not ratified. Watson rediscovered something intriguing about the Madison proposals. Unlike subsequent proposed amendments, such as the ERA, neither of Madison’s “stalled proposals” had an expiration date (Endersby and Overby Reference Endersby and Marvin Overby2018).Footnote ⁵ One particular proposal caught his attention:

The idea, evidently, made sense in 1789. After all, two thirds of the same legislators whose salary would be so constrained had voted for it! Perhaps members of Congress recognized that the rule provided political cover for what otherwise would appear to be an unseemly (but periodically necessary) act of self-dealing. In fact, in later years, Congress would experience exactly this type of awkwardness when passing pay raises. However, it was the state legislators—or at least some of them—who had balked at passage. Meanwhile, Watson experienced something of a Eureka moment. “Couldn’t we get this passed now?” he recalls thinking.Footnote ⁶ His logic: (1) the measure is as relevant in 1982 as it was in 1789; and (2) who could stand to lose other than members of Congress, whose predecessors had already approved the concept?Footnote ⁷

As it happens, legislators across the world have seen merit in the idea. Provisions detailing legislative compensation have become common in both US state constitutions and many national constitutions since 1789, as I have learned in a long-standing project on historical constitutions (Elkins, Ginsburg, and Melton Reference Elkins, Ginsburg and Melton2022 [2005]). By 1850, 12 (23%) countries addressed legislative compensation in some way; by 1992, the year of the 27th Amendment’s passing, 56 (25%) did so. The 27th Amendment coincided with a steeper upward trend; as of 2022, 88 (43%) countries address legislative pay.Footnote ⁸ Constitutionalizing legislative pay is common but few constitutions have taken the Madisonian, delayed-implementation approach to self-dealing. An exception is the Uruguayan constitution, adopted originally in 1966 and reinstated in 1985 after a period of authoritarian neglect. Uruguay’s constitutional drafters seemed to have been channeling Madison:

However, the failure of the US proposal suggests an intriguing counterfactual. Given the enormous influence of the US Constitution, particularly on nineteenth-century constitution makers, would the idea be even more widespread today had state legislators seen its merit more than 200 years ago? Who knows? Although 36% of constitutions written in the nineteenth-century restricted legislative compensation in some way, 67% and 86% of those constitutions provide for jury trials and prohibit double jeopardy, respectively—two provisions that were enshrined in the US Constitution and subsequently appeared to have been influential abroad.Footnote ⁹ It seems likely that with a precedent in the US Constitution, legislative pay restrictions would have been more common in world constitutions during the past 200 years.Footnote ¹⁰

The idea of resurrecting Madison’s compensation proposal, all of a sudden, was urgent and obvious to Watson in 1982, and he scrapped his paper’s ERA theme. The thrust of his paper would be that Madison’s 1789 proposal could and should be adopted by the remaining state legislatures. Watson recalls a certain excitement in drafting his proposal and submitting it with a sense of pride and satisfaction. The response, however, was deflating. The teaching assistant charged with grading the papers—in this case, a young graduate student from Korea—found the paper wanting.Footnote ¹¹ He graded it a C-minus, adding in his comments that Watson’s proposal seemed infeasible.Footnote ¹²

Watson was puzzled and disappointed. He had no doubt in his own mind that his paper merited a better grade. “I knew I was right,” Watson explained to me in his characteristically calm but determined and confident manner. Watson appealed the teaching assistant’s grade to Waite but to no avail. Most professors are likely skeptical about grade appeals, at least on non-process grounds. Interpretations of the “lower court”—that is, the teaching assistants—probably are overturned only rarely, as much to discourage such appeals as to preserve the authority of underpaid and overworked graduate students. In this case, Professor Waite saw no reason to overturn the prior ruling. In Watson’s memory, Waite tossed the paper at him and delivered the verdict simply and quickly: “No change.” Understandably, Waite does not remember the moment but allows that she has no reason to doubt Watson’s rendition.

The exchange of those few words stung Watson. In retrospect, that moment represents a turning point in his life. His subsequent reaction—which had monumental consequences—is especially surprising given the early discouragement he faced. Two graders—authority figures and experts on the topic—had evaluated his paper and found that his idea was mediocre at best. For many (myself included), that might have been the last word on the idea. Not for Watson.

Watson finished the Spring 1982 semester with a C-minus in Government 310L. Earlier in the semester, Watson had found part-time employment at the Texas State Legislature (where he would continue to work, periodically, for much of his career). Perhaps serving in the statehouse inspired Watson. In his spare time, he started a letter-writing campaign, targeting state legislators in states that had not ratified the compensation amendment. His letter piqued the curiosity of a state legislator in Maine, who agreed to pitch the project to his colleagues in Augusta. In 1983, the Maine State Legislature ratified the amendment; the next year, the Colorado State Legislature did as well. Other states followed until 1992, when Alabama lawmakers provided the decisive 38th ratification on May 5. The 27th Amendment thus was certified as part of the US Constitution. Eight other states have since added their now-ceremonial approval, including Nebraska in April 2016.

The 27th Amendment and the 1972 ERA continue to have an interlocking relationship. Just as the ERA was among the inspirations for the 27th Amendment, the 27th Amendment reciprocally inspired lawmakers in three states to approve (belatedly) the ERA well after the 1979 original ratification deadline (and the 1982 contested extension of that deadline). On March 22, 2017—the 45th anniversary of the congressional presentation of the ERA to America’s state lawmakers—the Nevada State Legislature adopted a resolution to ratify the ERA. The text of Nevada’s resolution specifically cites the 27th Amendment’s unorthodox path to ratification. The following year, Illinois lawmakers did the same and likewise mentioned in their resolution the irregularity of the 27th Amendment’s incorporation into the US Constitution. Furthermore, on January 27, 2020, both chambers of the Virginia General Assembly completed action on a late ratification of the ERA. According to ERA supporters, Virginia’s action provides the necessary 38 ratifications for the 48-year-old ERA to make the 1972 measure the Constitution’s 28th Amendment. Dueling lawsuits have been filed in different federal courts—both for and against recognizing these belated actions as valid. The suits should provide some answer as to whether a state can rescind a prior ratification or has the ability to sunset its ratification by a specific date.Footnote ¹³

THE CITIZEN UNDERDOG

Watson’s story is compelling on many levels. An introspective student from Mesquite, Texas, Watson evidently pursued a quixotic, discredited project to finish the work of James Madison. In some ways, the thread connecting Madison to Watson is neither thin nor distant. Madison also had a strong sense of determination mixed with a fair amount of perseverance and autonomy (not to mention introspection). Before the Philadelphia convention in the summer of 1787, Madison arrived early and set to work alone with a trunk full of political texts. His “Virginia Plan” and, later, his draft of the Bill of Rights form much of what is now the US Constitution. Some founding delegates arrived in Philadelphia that summer weeks late and left early to return to their families—but not Madison, who shared Watson’s fascination with written law, a predisposition for independent work, and the dogged determination to move a law to the finish line.

Watson’s personality undoubtedly accounts for much of the 27th Amendment’s enactment. His quest for official closure is not limited to the US Constitution. Within minutes of my first meeting with him, Watson listed several street corners in my neighborhood that recently had received new street-name signs, courtesy of Watson! The City of Austin, as it turns out, is not particularly good about labeling streets, or at least not good enough. Watson asserts that he frequently encounters intersections that partially or completely lack signage identifying the streets. Since 2010, one of his missions has been to fill that gap by petitioning the city for a sign. So far, he is responsible for the installation of more than 200 street-name signs and counting. “The city is giving me some pushback about some of them, but I’ll break them down,” he laughs. I asked Watson if he had always had a predisposition for official closure or whether the 27th Amendment experience had pushed him down this path. His response: “I have always been one to have my i’s dotted and my t’s crossed.”

Personality aside, it is clear that Watson’s almost compulsive attention to official detail is reinforced by the David-and-Goliath element of the work. The story of a triumphant underdog is irresistible. Indeed, what initially led me to Watson’s story were the elements of defiance and self-reliance. Recall that two figures of authority had discredited his ideas. Rather than discourage him, the rejection seems to have empowered him. Did it drive his actions? Would he have pursued the 27th Amendment otherwise? Most educators and coaches operate under an assumption that encouragement helps; however, perhaps the right type of challenge, under the right conditions, can awaken citizen-students. Watson’s sense is that the rejection was a motivating factor, but he admits that he would have done it anyway. Again, “I knew I was right” is his refrain.

Whatever the personal motivation, the story undoubtedly is one of a triumphant underdog. Most of us are attracted to the story of an underrated individual who perseveres and succeeds against all odds. Examples in film and fiction are legion. The underdog storyline has its own category in folklore (i.e., category L in the Thompson Motif Index) and it is clear from extensive population of that category that dramatists have mined the theme for years.

Watson’s is also a story of what we might think of as self-efficacy or self-actualization, as it is understood in psychology. Somewhere between Watson’s C-minus grade and his first letter to a state legislator, we can imagine his feeling of newfound autonomy and courage. It is the feeling that accompanies an abrupt and upward identity shift: from spectator to player, from student to the object of study. It is the feeling that comes with the shift from thinking about an activity as something other people do—people with more gumption, people with means—to something that you do. Players, not observers. This shift is one way to think about Watson’s first batch of letters to state legislators.

In Watson’s case, self-actualization resulted in something especially sweet. He experienced the satisfaction that comes with overcoming the doubts of others together with the realization of a very public and especially meaningful accomplishment. He was a quintessential underdog—doubted and then vindicated. The US Constitution, the ultimate “unmoved mover,“ was altered only because of the persistent actions of one person. If there ever were a tailor-made anecdote for a professor’s final class, this is it (I tell the story regularly). Apparently, one person’s actions can have significant effects on macroconditions in society.

FINDING PEACE AND HAPPINESS BEYOND ACADEMIA

As Gregory Watson was celebrating in May 1992, Sharon Waite was far from Austin and far from feeling celebratory. She had long since left Austin and academia to return to her hometown of McAllen, Texas, in the Rio Grande Valley. In 1992, she was feeling introspective and restless. As it happens, her class with Watson in 1982 had been her last. That year, she met Joe Waite and they returned to “the valley” to run a ranch and a citrus farm, with perhaps some teaching for her at a local university.

A ranching and farming life in borderland Texas suited Waite, but it was a million miles from where she had been. Like many specialized professions, those in higher education live and work in a highly cloistered environment, and their skills and knowledge can feel irrelevant outside of the ivory tower. This feeling of disconnect may be similar to that of other cloistered professionals (e.g., those in the military) who find adaptation to civilian life challenging.

In this light, it is interesting to revisit Waite’s life path. She had graduated at the top of her high school class (and voted “most studious”). After considering a small liberal arts education at Smith College (an idea ultimately quashed by her father), she enrolled at UT at Austin, where she was part of a bourgeoning—and now storied—elite undergraduate honors program (Plan II). In some ways, Waite had her Smith experience under Plan II. She credits the program for preparing her for the rigors of a top-tier graduate school. After graduation from UT, she entered the PhD program in political science at the University of North Carolina in Chapel Hill, where she wrote her dissertation on the organization and influence of the Chinese military. Ten years and two kids later, she was back in Austin, lured to UT by a former professor at North Carolina who had moved on to chair (and rebuild) the Government Department. By 1980, she was teaching at her alma mater. For many scholars, it does not get any better than that.

Returning to citrus farming in the Rio Grande Valley marked an abrupt shift, both culturally and professionally, from an academic trajectory. Waite has an engaging, open personality and is comfortable straddling these different worlds. However, she also wrestled with colliding worlds and worldviews, which were not always easy to reconcile. She found that her deep knowledge of 1960s China was not particularly relevant—and sometimes awkward—in her new life. She recalls a moment in which a family member arranged a breakfast with another professor (“of something,” she was told). At the breakfast, her family member prodded her—innocently—to “tell us about China.” She found herself tongue-tied and a little embarrassed by the question. “It was as if I were a dancing bear asked to perform,” she observes ruefully.

Moreover, farming and teaching did not make for an easy combination. Waite had imagined that she could hire on at UT, Pan American—a regional campus in the UT system. However, academic jobs being few and far between, the department had no need for a China scholar. Meanwhile, the citrus business was booming, albeit after several setbacks. After two “hundred-year” frosts in six years and early struggles in the 1980s, she and Joe had built a thriving farm. In 2011, Joe was named the “Citrus King” by the Citrus Growers Association, which earned him roles (in regal costume) in parades as well as incessant ribbing from his wife and family.

By the early 1990s, Waite was feeling out of sorts professionally. Years of arduous study had left her with little to show for them. She found herself staring at an enormous stack of notebooks that she had produced during graduate school and thought, “All that wasted.” In this context, the news of Watson’s achievement came as a miraculous and providential bolt of lightning. She received a telephone call in 1996 from Steve Frantzich, a political scientist who covered the story in his work on citizen participation (Frantzich Reference Frantzich2008). Waite was stunned by the news. She struggled to recall Watson and the spring semester of 1982. The next day, she called Watson to congratulate him and hear his story. As a political scientist, she understood his miraculous feat as well as anyone. Indeed, she and her teaching assistant had explicitly written off the idea as pure fantasy 14 years earlier.

So how does (and did) Waite react to this turn of events? With a smile and a laugh. She recognizes that Watson’s triumph brought a smile to her face at precisely the moment in her life when she needed it—and she understands her humble and inadvertent role in the series of events. Waite is gratified to be, as she put it, a “footnote to a footnote of history.” She laughs, “I may have done more than any professor I know to influence the Constitution of the United States through an absolute fluke.”

Indeed, Waite has become philosophical about paths and turning points, and she is well past any professional angst. She remains close to many of her former high school classmates, which has allowed her to observe that lives can turn out differently from what she would have predicted. She jokes that many of her classmates who wanted no part of being voted “most studious” are now very successful professionals. She may have been at the top of her high school class, but to what end she wonders? She views Watson’s C-minus in much the same way. His grade was anything but a constraint on future success; it may have been the opposite. A refreshing way to think about this disconnect is that there are on-ramps back to professional and educational success, even for those who exited somewhere along the way.

EPILOGUE

Sharon Waite and Gregory Watson have spoken with one another only once, during Waite’s congratulatory call to him in 1996, but their paths would cross again. In one of my conversations with Waite, I asked her—knowing what she now knows—if she would have given Watson a different grade on his 27th Amendment proposal paper. “Are you kidding me? A-plus!” she responded. Two weeks later, I submitted a grade-change form to the UT registrar, with Sharon Waite’s signature and written explanation for a change from C to A+. The registrar called me to confirm the change and to note that 25 years is almost certainly a university record for time lapsed before a grade change. However, just as there was no statute of limitations on the enactment of the 27th Amendment, neither is there one for grade changes at the university. The registrar also reminded me that UT does not grant grades above an A. Watson’s grade would become the first and only A+ in UT history, which seems only appropriate.