Article the first: The Founders’ proposal for a much larger House

The very first amendment proposed in our Bill of Rights has never been ratified.

The very first amendment proposed in our Bill of Rights has never been ratified.

The intended purpose of Article the first was to ensure that the number of Representatives would forever increase along with the total population. An arithmetically complex amendment, this proposal was affirmed by many states before a subtle, but fatal, defect in its formulation eventually became evident.

Article the first of the Bill of Rights

After the Constitution was proposed, many citizens believed that the success of the new republic would be predicated upon the number of Representatives in the U.S. House forever increasing in proportion to the nation’s total population.  In fact, that is what was promised by the founders.  For example, a prominent framer of the Constitution predicted, in 1787, that “the House of Representatives will, within a single century, consist of more than six hundred members”.1James Wilson, one of the signatories of the Constitution, speaking at the Pennsylvania ratification convention. See: Farrand’s Records, Volume 3, pages 159-160. November 30, 1787  Yet over two centuries later, Congress has granted only 435 Representatives to we the people, which brings us to the problem at hand.

Though the Constitution established the maximum number of Representatives at one for every 30,000 people, it failed to establish a corresponding minimum.  According to Federalist 55, this failure drew the most criticism of any provision in the proposed constitution.  James Madison (known as the “Father of the Constitution”) later confessed that he had “always thought this part of the constitution defective” when he introduced his proposal to rectify it as one of his several proposed amendments to the Constitution.

It is therefore not surprising that the very first constitutional amendment passed by Congress was intended to fix this defect by requiring a minimum number of Representatives proportionate to the total population.  Strangely, this proposal was never sent to the states for ratification. Instead, a seemingly identical but defective version was substituted for it, which effectively sabotaged the implementation of this solution.

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  • 1
    James Wilson, one of the signatories of the Constitution, speaking at the Pennsylvania ratification convention. See: Farrand’s Records, Volume 3, pages 159-160. November 30, 1787
  • 2
    National Archives: A Record-Setting Amendment
  • 3
    For example, a state with 10% of the total population should receive approximately 10% of the total Representation in the U.S. House.  The significance of this formulation was even more consequential at the time because it also determined the allocation of the federal tax burden to the states (until the 16th amendment was ratified in 1913).
  • 4
    For example, approximately 30% of the 85,000-word transcript from the New York ratification convention was devoted exclusively to this concern
  • 5
    Federalist 55: “Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed.”
  • 6
    Annals of Congress, House of Representatives, 1st Congress, 1st Session, 8-June-1789, page 457
  • 7
    Whereas the House’s first Article established the minimum House at 1:50,000 for all population levels above ten million, the Senate’s version would increase the size of the House at the rate of 1:60,000 for all population levels above seven million.
  • 8
    An elaboration of this history will be provided in a separate article.
  • 9
    To be published in September of 2022.
  • 10
    Recall that the Senate’s version proposed a fixed ratio of 1:60,000 which would have simultaneously overridden the Constitution’s maximum size while establishing an equivalent minimum size.
  • 11
    8,000,000 ÷ 30,000 = 266.7 → round down to 260.
  • 12
    8,000,001 ÷ 50,000 = 160.00002 → round down to 160.
  • 13
    The 1820 census tallied an apportionment population total of 8,969,878. Per the defective version of the first Article, the maximum size of the House would be that total divided by 50,000, or 179 Representatives. (This would have been less than the previous apportionment.) However, this version of the first Article also required that, for all population totals between eight and ten million, the minimum size of the House is 200, thereby creating a mathematical impossibility. As it turns out, in the absence of the proposed (and defective) first Article, Congress authorized a total of 213 Representatives, which was in compliance with the intended version of Article the first.
  • 14
    That is, deleted “nor less than one Representative for every fifty thousand persons’’.
  • 15
    The first time that the existence of this defect is identified in modern scholarship was in a paper by Professor Akhil Amar, who noted that the “amendment’s intricate mathematical formula made little sense”. See “The Bill of Rights as a Constitution” The Yale Law Journal, vol. 100, no. 5, 1991, pp. 1143.