The Lost Amendments

Alan Cai

October 28, 2022

In grade school, American students would be taught that the Bill of Rights contained the first ten amendments to the United States Constitution and that the first amendment was the right to religion, petition, speech, and assembly. This portrayal is not necessarily inaccurate per se, but it does not paint the complete picture of the situation.

Initially drafted by James Madison, the proposed Bill of Rights, or the first set of Amendments sent to the States for ratification, contains two more amendments than the ten originally ratified. Madison intended the amendments to be inserted into relevant parts of the Constitution. However, it was ultimately decided by Congress that amendments ought to be listed following the conclusion of the 1789 version. Thus, the first amendment listed under the constitution today was actually intended to be the third amendment and was the third addition to the constitution approved by Congress.

The first amendment to be approved by Congress was one regarding representative apportionment. Regarding representation, the ratified draft of the United States Constitution specified, “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative” (Article 1 Section 2). Superficially speaking, this would be an impossible task to have continued past the middle of the nineteenth century and undoubtedly would become a nightmare if still held in the present day in which this ratio would have resulted in over ten thousand representatives a staggering figure that by itself would exceed the maximum occupancy of the United States Capitol. Thus the necessity for an amendment was immediately evident for the new Congress. The first proposed amendment mandated that congressional apportionment ratios be increased to forty-thousand per representative when the number of representatives exceeds 100 and fifty-thousand per representative when the number meets 200. A balance between limiting the number of representatives for an efficient legislature and still adequately representing each representative’s constituents was a product of debate from the beginning of the Constitution’s writing process, and the disagreement as to the correct number of congressional delegates there ought to be was a factor in the delay and ultimate failure to pass the first proposed amendment.

Technically, the aforementioned amendment could still conceivably be added to the Constitution were enough State Legislatures to act upon it, albeit a very slim probability. Constitutionally speaking, the current apportionment of 435 total congressional representatives(determined based on Congressional statute) runs contrary to the Constitution. Therefore, one could make an argument that Congress’s operation today is illegal. Additionally, scholars later observed that the word choice of the amendment amounted to a mathematical error that rendered any congressional apportionment of the country between the population marks of 8 million and 10 million unconstitutional. The final part of the formula in which the discrepancy lies is as written: “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 less than one Representative for every fifty thousand persons.” (Amendment the First). Perhaps it would not take a sleuth to figure that once the nation reached 8 million and one people(thus requiring 201 representatives), the apportionment would still be illegal until the population reached 10 million as there would be less than one representative per fifty thousand people.

The second proposed amendment, also not ratified as part of the original Bill of Rights, stated verbatim “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” A college sophomore later launched a campaign that successfully resulted in the ratification of the amendment as the 27th and most recent amendment.

Early American history contained many major details that most citizens have rarely heard of. Scratching beneath the surface often unearths splendid gems that have the ability to translate into action. The purpose of history is not to learn from past mistakes, but to understand, comprehend, and act upon a broad plethora of knowledge.