My last entry had to do with whether President Obama could unilaterally use the 14th Amendment to raise the debt ceiling. This prompted me to think about the handful of esoteric constitutional provisions that have faded into desuetude, been repealed by subsequent amendments or events, or otherwise been largely forgotten. The Constitution has two such examples that came to my mind: the first of these, found in Article I section 9, read that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” This provision reflected Congress’ reluctance to attempt to restrict slavery at the time of the Constitution’s ratification; in fact, this clearly was designed to ensure that Congress made no restrictions of the slave trade for at least 10 years after ratification. Another example, found in Article IV section 2, likewise had to do with slavery as well. It stated that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This unhappy provision also protected the slave trade, by precluding sanctary in free states for escaped slaves, but was superseded by the 13th Amendment as part of the Reconstruction Amendments passed in the aftermath of the Civil War.
The Bill of Rights (the first 10 Amendments) also contain an interesting relic. I mentioned in my previous entry the 3rd Amendment which stated that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” While clearly a response to the British policy of forceably garrisoning troops in civilian houses during the occupation of Boston and other cities, this amendment has thankfully slumbered quietly since its birth in 1791. While not terribly esoteric (nor terribly controversial, either), the most interesting amendment from a historical perspective is the most “recent”, the 27th, ratified in 1992. Why do I say the most “recent” in quotation marks? Because it was one of the proposed amendments to the Bill of Rights in 1789, but was not ratified until 203 years later. It states that “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.” This restriction on Congress’ power to set its own salary languished for two centuries–and was able to do so as it set no deadline for ratification–until the 27th Amendment was certified following its ratification by Michigan on May 7, 1992 which met the 38 state (or 3/4 majority) requirement. Interestingly, it later came out that the historical record had forgotten that Kentucky had ratified the amendment in June 1792, meaning that it was actually Missouri’s ratification two days earlier that had made the amendment official– nevertheless, Michigan still gets official credit for being the 38th state.
Massachusetts, by the way, still hasn’t ratified the 27th Amendment, making it one of only 5 such states.