How Would Congress be Different if the States Did Pass the Original First Amendment?

We all know that the Bill of Rights enshrined in the Constitution contains ten amendments. However, it is less well known that the Bill of Rights sent to the states for ratification originally contained 12 amendments.

What we know today as the First Amendment – the one enumerating our basic freedoms of religion, speech, and so forth – actually appeared third on this list. The current Bill of Rights contains just ten amendments because the requisite number of states – three-fourths of those in the Union – only ratified amendments three through twelve.

So, what about those first two original amendments?

The original second amendment related to pay raises for members of Congress. It was proposed in September 1789, but it was not ratified until May 1992, after Alabama, Missouri, and Michigan approved it that month – making it our 27th Amendment.

The original first amendment, referred to at the time as Article the First, related to congressional apportionment – that is, how many members serve in the House of Representatives. Many of the country’s Founders – and especially the Anti-federalists who were afraid of the centralization of power in the hands of the few and were skeptical of the Constitution as drafted – believed that the number of representatives should increase along with the rise in population. Otherwise, if representation remained fixed while the population increased, each representative would have a larger and larger constituency, thus weakening the relationship between constituents and their representatives – the bond that is the essence of America’s republican form of government.

Here is the wording of the original amendment on congressional apportionment, as drafted by the conference committee in 1789 that reconciled the versions passed by the House and Senate:

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

In effect, this amendment created a formula to determine when to increase the number of representatives in the House. It stipulated that once the House reached 200 members, one should be added for every increase of 50,000 in the general population.

In the first session of the House, there were 65 representatives. That number increased over the years, and in 1911, Congress fixed the number of representatives at 435 (we briefly had 437 after Alaska and Hawaii entered the Union, but the number quickly returned to 435).

With 435 representatives for a country of 308 million, according to the 2010 Census, that amounts to one representative for every 700,000 people in today’s House. America’s lower house is the second least representative in the world after India’s Lok Sabha: with 545 seats in that chamber, there is one representative for every 2.2 million people.

If enough states had ratified the original first amendment, and there was an increase of one representative for every 50,000 people, we would have over 6,000 representatives in the House today. This figure would make it by far the largest national legislative body in the world: currently, the largest is China’s unicameral legislature, the People’s National Congress, which has 2,987 members.

However, as history tells us, the requisite number of states never did ratify this amendment. With 13 states in the Union, it needed ten approvals to cross the three-fourths threshold.

In March of 1791, Vermont joined the Union and approved the amendment, as did Virginia that December, making it the tenth state to ratify Article the First; however, Vermont’s statehood pushed the number of needed approvals up to eleven.

When Kentucky entered the Union in 1792, it too ratified the amendment, but its statehood pushed the number of requisite approvals up once more, this time to twelve. Since then, the amendment has languished: today, it would need ratification by 27 additional states to go into effect.

Or so we have been told.

In 2011, researcher Eugene Martin LaVergne discovered that in 1790, the Connecticut legislature did ratify the congressional apportionment amendment. LaVergne found that the document verifying the ratification procedure had been misfiled for the year 1780.

So, how did this go unnoticed at the time? Simply put, Connecticut never informed the federal government of its approval of the full Bill of Rights, but there are other factors – particularly, more clerical mishaps – that complicated the matter.

According to LaVergne, when scriveners prepared copies of the twelve Bill of Rights amendments to send to the states for approval, some of these printed copies contained typographical errors. For instance, in some copies, the tenth amendment (our eighth today) referred to “cruel and unusual imprisonment” rather than “cruel and unusual punishment.”

There were other such errors, including in the wording of Article the First. It is for this reason, according to LaVergne, that Delaware ratified every amendment but the one regarding congressional apportionment: it voted to postpone ratification of this amendment, he claims, until the error had been corrected.

Though Connecticut allegedly did ratify the Bill of Rights, its senators – who helped broker the all-important Connecticut Compromise at the Constitutional Convention – believed these mistakes sullied the ratification process. Senator Oliver Ellsworth thus wrote a letter requesting that the government correct several errors, and Senator Roger Sherman advocated that the state legislature rescind the amendments and pass the corrected versions, which it eventually did. (Connecticut did not ratify the current Bill of Rights, excluding the amendment on congressional apportionment, until 1939).

LaVergne argues that since Connecticut did indeed ratify the congressional apportionment amendment, it was, by 1792, approved by at least three-quarters of the states. On these grounds, the current apportionment of House seats is unconstitutional, he claims. He took this issue to a federal court shortly after his discovery.

However, the courts have argued that not only does LaVergne lack standing in this case – meaning he has not been personally injured or harmed and therefore cannot raise the case, but also that this issue is not justiciable – meaning the courts lack the authority to adjudicate the matter.

Justifying its claim that the matter is non-justiciable, when the Third Circuit Court of Appeals dismissed the case in 2012, it cited the 1939 case, Coleman v. Miller, believing the issue to be a “political question…with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.”

LaVergne has since called on David Ferrierno, the Archivist of the United States, to have the amendment introduced before Congress, but the movement to have this amendment recognized as part of the Constitution is yet to reach critical mass.

Matters of the law and principle aside, there are practical issues regarding the implementation of this amendment: increasing the size of the House to 6,000 members could make an already unwieldy body even more dysfunctional. Also, it would prove to be a monumental task to have 50 states redraw their congressional boundaries. California alone would have to produce a congressional map with over 700 districts.

Yet LaVergne’s supporters believe there are pragmatic reasons that justify the adoption of the amendment. They argue that having smaller districts will strengthen the bond between representatives and their constituents, renewing much-needed trust between politicians and voters and making representatives more responsive to local needs. A larger House could also prove to be a burden to special interest groups, which would find it more challenging to sway the outcomes of such a multitude of House elections or to successfully lobby thousands of lawmakers in order to get their preferred legislation passed.

Moreover, if the amendment is approved and adopted, it could be subsequently amended to make it more practical and to comport with the country’s current demography. It could be amended, for instance, to cap the House at 1,000 representatives (a measure supported by conservative commentator George Will back in 2001) – that is, only if clerical errors do not delay the process for another 225 years.

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About Andrew Gripp

Andrew Gripp received a B.A. in International Relations from the University of Delaware and an M.A. from Georgetown University, specializing in Democracy and Governance. His interests include U.S. and international politics, moral and political philosophy, science and religion, and literature. You can find him on Twitter @andrewgripp.
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