Was the First Amendment Proposed Ratified?

Is it true that the very first amendment proposed in the original Bill of Rights has never been ratified? I read about this on this article: http://enlargethehouse.blogtownhall.com/default.aspx

There are links on that page to supporting information, but this isn’t taught in the schools and the teachers don’t seem to know anything about it. The article also says the reason the amendment was never ratified is that it contains a defect!

Yes, “Amendment the First” existed and was never ratified. To ratify an amendment to the Constitution, you needed 3/4ths of the states to agree to the amendment. In those days, there were 14 states, so you needed 11 states to ratify for the amendment to become part of the Constitution. 10 states ratified. 1 state (Delaware) voted down “Amendment the First”. Three other states (Georgie, Connecticut, Massachusetts) chose not to vote on the proposed amendment, so “Amendment the First” did not have the votes to become a law.

Years later, Kansas would become the 11th state to ratify “Amendment the First”, but Kansas did not become a state until the 1850’s. By that time, the 3/4ths mandate had risen significantly due to the inclusion of so many new states, so having an 11th state ratify the proposed amendment did not meet the Constitutional requirements to make Amendment the First a law. The proposed amendment could still be ratified today, if enough states chose to do so. But with 50 states in the Union, the threshold to ratify “Amendment the First” now stands at 38 states. Therefore, 27 other states would need to ratify Amendment the First to make it a law.

This has happened before. The other of the original twelve proposed amendments that was not ratified at the time involved restricting the right of Congress to compensate themselves. This provision was eventually ratified in 1992 and became the 27th Amendment. So it’s possible that Amendment the First could be ratified sometime, but it’s unlikely given the large number of states that would need to take up the issue. This brings us to the question of why the proposed amendment has never been ratified in the past.

So why Was “Amendment the First” Not Ratified in 1789?

first-amendment-ratified

The original Constitutional process was a matter of intense debate and partisanship. Independence had been won only a few years before and the new American states were weakened by a weak currency and fractiousness between the states. Some leaders wanted a federal alliance and a central government to keep North America secure from the powerful European nations, while other leaders wanted no part of a federal government. To compromise, the states agreed to create a federal government, but limit its powers within a binding contract between the states, which became known as the Constitution. The Bill of Rights was a large part of that compromise.

When the Constitution was being debated, there were two major factions in the constitutional process: the Federalists and the Anti-Federalists. The Federalists supported a Constitution that would give the federal government certain powers. The Anti-Federalists wanted no Constitution, fearing it would disenfranchise the citizens of the country and give too much power to the President. The compromise the two sides came to was to create amendments to the Constitution that would specifically spell out the rights that the citizens of this country would have. Twelve amendments were proposed. Ten were ratified. These ten amendments became what we know as the “Bill of Rights”.

“Amendment the First” was the first proposed amendment, because the citizens of certain states (especially powerful New York) were opposed to congressional districts with more than 30,000 people. These people felt that local representation was important, so they wanted an amendment that assured their congressional districts would not be too large for them to remain in contact with their local representative. You also have to remember that communications were not nearly as efficient as they are now, so the 30,000 threshold took into account that their representative would be far away in a national capital (away from direct communication) much of the time and would be unlikely to travel to outlying communities when back in the home state, given it was more difficult to travel throughout a district in those days.

Still, Amendment the First did not receive the support to become a law. Instead, the constitutional representatives agreed that the issue would be negotiated in the 1st Congress. These men came up with a particular equation that would determine how congressional representation would be determined for well over the next century.

Apportionment and the First Proposed Amendment

The Apportionment Amendment (another way to say Amendment the First) called for no more than 30,000 voters per Congressional district, with the provision there would have to be at least 100 seats in the House of Representatives. If the population grew, that number would rise to 40,000 voters per district, but there would need to be at least 200 seats in the House of Representatives. Finally, there size of congressional districts could grow up to 50,000 voters per district if the population grew such that there were more than 200 seats in the House of Representatives. No other provisions were listed in Amendment the First. Since the amendment was not ratified, it became more a matter of tradition than law that congressional districts would be apportioned in this way. Today, each congressional district represents about 700,000 U.S. citizens.

The article you read took the most extreme interpretation of the appointment amendment. If you limited the number to 50,000, there would be over 6,000 members of the U.S. House of Representatives. But in the resulting language adopted in the documents on the Apportionment Amendment by James Madison and later the 1st Congress, they set a fill-in-the-blank algorithm by which the number of representatives would be determined as the population of the country naturally grew. That is, as the population grew by every 60,000 people, new seats would be added to the House of Representatives, with the understanding that the number represented would increase, as well. If you take the words of the Framers of the Constitution (who were following James Madison’s first proposal) as an algorithm, the number of members in the House of Representatives would be around 1,600 members. The 1st Senate would later propose their own language about apportionment, and their algorithm would provide for around 800 members of Congress.

Or you can assume a static number, which would increase the number of seats in the House to around 6,000 in the original proposed amendment or 5,000 in the law proposed by the first Senate. What you need to keep in mind, though, is that none of these proposals ever won enough support to become a law. There is nothing arcane or conspiratorial in this fact. When a proposed change doesn’t have enough support, it doesn’t become law.

Apportionment in the 20th Century

When the Republican-controlled House of Representatives chose to set the number of seats in the House of Representatives at 435 in 1910, there appears to have been an understanding that the rapid growth of the U.S. population threatened to create an unwieldy legislature. When the Republican-controlled Congress disregarded its constitutional duty to increase the seats of Congress in 1920, this appears to have been recognition of the same. Given that the constant increase in the number of representatives would tend to limit or “water down” the power of the representatives already in existence, there might well have been self-serving interests in their actions. There’s no doubt that Americans’ votes are not as represented in the House as they were when there were only 30,000 citizens per district.

In an age with better communications and speedier transit, I think it’s interesting to discuss whether having a larger House of Representatives would be a good thing or not. I can see arguments for both sides. The website you linked to in your question seems like a partisan Republican website, and it seems to be suggesting that something nefarious is going on to keep the citizens of this country from being properly represented. If so, it needs pointing out that both Democrat and Republican congresses have chosen not to increase the size of the House of Representatives, so this shouldn’t be seen through the spectrum of partisan politics. If anything, this is the politician class of both parties agreeing to keep power limited to a small number in both parties.

Here are a few of the obvious arguments.

Arguments For Having More Seats in the House of Representatives

  • Better Representation – The fewer citizens represented by a congressman, the more responsive that congressman is likely to be to an individual constituent.
  • Less Power For the Congressman – More seats in the House means each representative would be less powerful. This is like the argument made by the linked article: no oligarchs.
  • Harder To Buy Off – Lobbyists would need to spread their campaign donations around to potentially 6,000 representatives, instead of 435. This might limit the power they have to influence large chunks of the representative class.
  • More Citizens in the Process – With more seats, the ability for an average person to run for Congress would seem to be greater. This might introduce more talent into the process and perhaps these talented unknowns might rise through the party structure, when otherwise they might never come to politics.

Arguments Against Having More Seats in the House of Representatives

  • Less Powerful Congressman – While your congressman is likely to be more responsive to your issues, that congressman would see his or her power watered down. Therefore, your representative would have less power in representing you.
  • More Expensive Campaigns – With several thousand more political campaigns every two years, the money to fund those campaigns would sky-rocket. This might create politicians more beholden than ever to the fewer campaign donors they would have.
  • Chaotic Political Scene – With up to 6,000 representatives, the House could become unwieldy and chaotic. Individual members wanting to stand out from the army of politicians would have to grandstand more in public, getting their face before the cameras.
  • Bigger Government – There would simply be more politicians in Washington D.C. Each of these men and women would need to justify their continued role in the capital, so each would be championing their program. This would naturally lead to more proposed laws and a more active federal government.

There are a lot of other pros and cons to passing the Apportionment Amendment and increasing the size of the House of Representatives. This is largely academic, but it’s good for the voters to think about the nature of their representation. Thanks for the question and I hope you continue to read AskDeb.