Return the House of Representatives to the People
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The History of the First — and Now Forgotten — First Amendment  

a. The Bill of Rights Document

On September 25, 1789, the First Congress of the United States proposed twelve amendments for what would become known as the Bill of Rights. These twelve amendments attempted to address the arguments that had most frequently been advanced against the Constitution.

Of those twelve, only the last ten were ratified to the U.S. Constitution by 1791. As a result, our Constitution’s “First Amendment” had originally been proposed as “Article the third”, the “Second Amendment” was originally “Article the fourth”, and so on.


To further confuse matters, “Article the second” was not ratified until 200 years later — as the 27th Amendment. This amendment limited Congress’s ability to increase its own compensation.

However, “Article the first”, the very first amendment proposed in the Bill of Rights, was never ratified despite having been affirmed by every state except one.


b. The Two That Did Not Make It

As noted above, it was the first two (of the original twelve amendments) that were not ratified into the Bill of Rights. These are as follows:

  1. “Article the first...” specifically attempted to resolve the issue left open by the Constitution with respect to the minimum number of Representatives.
  2. “Article the second...” is self explanatory: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

Though these two proposed amendments appear to be dealing with entirely different subjects, they do have in common one important aspect: of the 12 articles, they are the only ones that, in effect, proscribed limitations on the Representatives themselves:

  1. “Article the first...” intended to control the size of a Representative’s district, and
  2. “Article the second...” intended to limit the ability of the Representatives to compensate themselves.

It is not widely known that Article the second was ratified as the 27th amendment over two hundred years after it was originally proposed.  This is an interesting story which is recounted in an essay by John Dean (“The Telling Tale of the Twenty-Seventh Amendment”).

c. Article the first...
Below is the only amendment — of the twelve articles proposed in in 1789 — that has never been ratified.
Article the first...

“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.”

Transcript of the Original Bill of Rights

The intended purpose of “Article the first” was to establish a minimum number of Representatives (in the U. S. House) relative to the total population. Our Constitution does not establish such a minimum (other than one Representative per state) and, during the Constitution’s ratification debates, the absence of a minimum was a considerable source of consternation. Perhaps that is why an amendment to define the size of the House of Representatives was the first one ever proposed to the Constitution.

Referring specifically to this omission, James Madison stated that he had “always thought this part of the constitution defective”. Furthermore, he believed that this amendment was needed “to secure the great objects of representation.”  

As it turns out, Article the first contains an inconspicuous mathematical defect which was introduced at the last minute by the joint-committee. Largely because this defect was not initially detected, the article was then affirmed by every state except Delaware. Had the amendment not contained this defect then it could have eventually been ratified and, as a result, we would now have approximately 6,000 federal Representatives in the U. S. House.

The full story and a complete analysis of the would-be first amendment is provided by the TTO report entitled: “The Minimum and Maximum Size of the U. S. House of Representatives” (download at this link) .

“If a nation expects to be ignorant and free ...  
      it expects what never was and never will be.”

– Thomas Jefferson

Created: 13-July-2004
Updated: 10-October-2007
© 2007
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