Bill of Rights

US Constitution of 1787

Bill of Rights


During the September Constitution of 1787 debates in the United States in Congress Assembled (USCA) and the subsequent States ratification conventions, opponents fervidly charged that The New Plan for the Federal Government would open the way to tyranny by the central government.  In the Congressional deliberations of 1787, USCA Delegate Richard Henry Lee led the effort for a "bill of rights" that would spell out the immunities of individual citizens, but the members voted to send the Constitution onto the 13 US States unaltered.

Several state conventions, in their formal ratification of the Constitution, asked for such a "bill of rights” by proposing amendments.  Other States ratified the Constitution of 1787 with the understanding that the amendments would be offered, leaving their construction to the new Senators and Representatives in the U.S. Congress.  On September 25, 1789, the First U.S. Congress under the Constitution of 1787 proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it.

The first of the proposed amendments, Article The First, which set the maximum of constituents for each Representative at 50,000, was not ratified due to a a House/Senate Conference Committee faux pas and still remains before the states for their consideration.  The second of the proposed 12 Amendments, concerning the compensation of Congressmen, is currently the last amendment to the Constitution of 1787, having been ratified on May 7, 1992 as the 27th Amendment.   Articles 3 to 12, however, were ratified by three-fourths of the state legislatures on December 15, 1791.  These articles now constitute the first 10 amendments of the Constitution, and are known as the Bill of Rights.  Exhibited here are:


 



The February 6, 1788 State of Massachusetts Ratification Resolution, which includes the call that nine “alterations and provisions be introduced into the said constitution.”  From the American Museum, Or Repository Of Ancient And Modern Fugitive Pieces, Prose And Poetica, for February 1787, pages 161-163.


Bill of Rights: A 1790’s printing of the September 25th, 1789, Act of the United States House of Representatives and Senate in Congress Assembled proposing 12 Constitutional Amendments: “Articles in addition to, amendment of, the constitution of the United States of America, proposed by congress, and ratified by the legislatures of the several states, pursuant to the fifth article of the original constitution.” Signed in type by Frederick Augustus Muhlenberg, Speaker of the House of Representatives, John Adams, Vice-President of the United States and president of the Senate. 



Dr.Naomi Yavneh Klos at the Bill of Rights Case





Article The First

The only amendment in the Bill of Rights that was not ratified  was Article the First, which was supposed to limit a Congressional District size to between 50,000 (House version) and 60,000 (Senate version) citizens.  What follows is a brief history of Article the First and why it was not ratified by the states.

 On August 24th, 1789 the House of Representatives (HR) passed Article the First  limiting a Congressional District to the maximum size of 50,000 citizens with the following language:
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 200, 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.
Journal of the First Session of the Senate of the United States of America: Begun and Held at the City of New-York, March 4th, 1789, and in the Thirteenth Year of the Independence of the Said States, New-York, Printed by Thomas Greenleaf, 1789, pages 103-104

Article the First, along with 15 other "Bill of Rights" amendments were sent upstairs to the Senate. Nine days later,  on September 2nd, the HR Article the First amendment was debated by the Senate.  This resulted with the Senate enacting its own version capping the House Congressional Districts at one Representative per a 60,000 citizen maximum rather than 50,000.  The resolution, which was easier to understand, also increased the total number of Representatives proportionately with the population every ten years:
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, to which number one representative shall be added for every subsequent increase of forty thousand, until the representatives shall amount to two hundred, to which one representative shall be added for every subsequent increase of sixty thousand persons.

Journal of the First Session of the Senate of the United States of America: Begun and Held at the City of New-York, March 4th, 1789, and in the Thirteenth Year of the Independence of the Said States, New-York, Printed by Thomas Greenleaf, 1789, page 114

On September 21st, the House and Senate agreed to establish a conference committee to resolve numerous Bill of Rights differences between the two legislative bodies.  Aside from the ten Amendments the House and Senate had agreed on, the HR/S Conference Committee was charged on combining the HR and Senate Article the First versions into one along with the elimination and/or reconstruction of fifteen additional amendments.   On September 24th, 1789, the Conference Committee issued this report, which managed to formulate  12 Amendments out of  26 for House and Senate's consideration:

The Committees of the two Houses appointed to confer on their different votes on the Amendments proposed by the Senate to the Resolution proposing Amendments to the Constitution, and disagreed to by the House of Representatives, have had a conference, and have agreed that it will be proper for the House of Representatives to agree to the said Amendments proposed by the Senate, with an Amendment to their fifth Amendment, so that the third Article shall read as follows "Congress shall make no law respecting an establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances" And with an Amendment to the fourteenth Amendment proposed by the Senate, so that the eighth Article, as numbered in the Amendments proposed by the Senate, shall read as follows "In all criminal prosecutions, the accused shall enjoy the right to a speedy & publick trial by an impartial jury of the district wherein the crime shall have been committed, as the district shall have been previously asscertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; and to have compulsory process for obtaining Witnesses against him in his favour, & to have the assistance of counsel for his defence."

The Committees were also of Opinion that it would be proper for both Houses to agree to amend the first Article, by striking out the word "less" in the last line but one, and inserting in its place, the word "more," and accordingly recommend that the said Article be reconsidered for that purpose.
The conference committee had recommended adopting the August 24th House version changing only the word "less" to "more" in the second to last line ("by striking out the word "less" in the last line but one") in Article the First. On that same day, the 24th, the conference committee's report was delivered to the House of Representatives for their consideration.

United States Senator Oliver Ellsworth handwritten report of the Conference Committee's recommended changes to Bill of Rights including Article the First page one - Image Courtesy of the US National Archives.

United States Senator Oliver Ellsworth handwritten report of the Conference Committee's recommended changes to Bill of Rights including Article the First page two  - Image Courtesy of the US National Archives.

The House of Representatives Journals for September 24th, 1789, reported that the members debated the committee's report with one exception. The conference committee's recommended change of "less" to "more" in the second to last line ("by striking out the word "less" in the last line but one") was conveyed to House floor as changing the word "less" to "more" in the last place of the Article:

The House proceeded to consider the report of the committee of conference, on the subject-matter of the amendments, depending between the two Houses to the several articles of amendment to the Constitution of the United States, as proposed by this House:  Whereupon,

Resolved, That this House Resolved, That this House doth recede from their disagreement to the first, third, fifth, sixth, seventh, ninth, tenth, eleventh, fourteenth, fifteenth, seventeenth, twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth amendments, insisted on by the Senate: Provided, That the two articles which by the amendments of the Senate are now proposed to be inserted as the third and eighth articles, shall be amended to read as followeth :

Article the third. “Congress shall make no law respecting an establishment of religion, or prohibiting  the Free exercise thereof; or abridging tie freedom of speech, or of the press; or the right of the People peaceably to assemble, and to petition the Government for a redress of grievances.”

Article the eighth. “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.”

And provided also, That the first article be amended by striking out the word " less,” in the last place of the said first article, and inserting in lieu thereof the word "more."

On the question, that the House do agree to the alteration and amendment of the eighth article, in manner aforesaid, It was resolved in the affirmative, Ayes 37 Noes 14
The House  passed the 12 Amendments as proposed by the joint Conference Committee with the word "less"  was changed to "more" in the last place ofArticle the First rather than "less" being changed to "more" in the second to the last line.  This change rendered  Article the First a dysfunctional amendment.  


Article the First, along with the other 11 Bill of Rights amendments were delivered upstairs to the Senate chamber by the clerk that afternoon.  The Senate Journals record that Conference Committee's Article the First change of "less" to "more" in the second to last line ("by striking out the word "less" in the last line but one") was also reported on the floor with the change of the word "less" to "more" in the last place of the Amendment.  The Journals state:
And provided also that the first Article be amended by striking out the word “less,” in the last place of the said Article, and inserting in lieu thereof the word “More.”
Journal of the First Session of the Senate of the United States of America: Begun and Held at the City of New-York, March 4th, 1789, and in the Thirteenth Year of the Independence of the Said States,New-York, Printed by Thomas Greenleaf, 1789, page 148

Sadly, no one in the House of Representatives challenged the fact that changing the word "less" to the word "more" in its "last place" rendered Article the Firstimpotent. Consequently, Congressional Districts, after the nation's population reached 8,000,000 citizens would not be capped either at the House's 1/50,000 or Senate's 1/60,000 one member per maximum citizen ratio. Additionally, this change also created a math error that would eventually specify a minimum number of House seats greater than the maximum.

The subtle change of "less" to "more"  in the amendment's last line was also missed on the Senate floor resulting in that chamber passing the now ineffective Article the First on September 25th, 1789. 

Journal of the First Session of the Senate of the United States of America: Begun and Held at the City of New-York, March 4th, 1789, and in the Thirteenth Year of the Independence of the Said States,New-York, Printed by Thomas Greenleaf, 1789, pages 150-151

It would not be until the ratification process that citizens became aware of the error and thus the states failed to ratify the feeble Article the First Amendment. Yale University Law Professor, Akhil Reed Amar, writes in his book The Bill of Rights: Creation and Reconstruction:
First, the amendment's intricate mathematical formula made little sense.  If the population rose from eight to nine million in a decade, the requirement that there be at least two hundred representatives would be inconsistent for every fifty thousand people.  In effect, the amendment required the population to jump from eight to at least ten million in a single decade.  The mathematical oddness of the text is confirmed by the lean legislative history that does exist. When initially passed by the House of Representatives, the amendment was worded identically to its final version with one exception: its last clause provided for "not... less than one Representative for every fifty thousand persons.  So worded, the proposal was sent to the Senate, along with all the other amendments proposed by the House.   When the Senate adopted a Bill of Rights whose wording and substance diverged from the House version, the two chambers convened a joint committee to harmonize the proposed Bills. At this conference, the word more was inexplicably substituted for less, and the conference paste-job was hurriedly adopted by both houses under the shadow of imminent adjournment, apparently without deep deliberation about the substitution’s (poor) fit with the rest of the clause. Thus it is quite possible that the technical glitches in the First Amendment’s formula became evident only during the later process of ratifying Congress’ proposed amendments.




Bill of Rights 1789 Joint House and Senate Conference Committee errs or sabotages the 1st Amendment and Congress follows - by Stanley Yavenh Klos, 2013

The Conference Committee error, or perhaps sabotage, was especially grave because it failed to limit a Congressional District to either 50,000 as passed on August 24th, 1789 by the House or 60,000 citizens as passed by the Senate on September 2, 1789. The language dysfunction crippled the ratification ofArticle the First resulting in it being the only amendment, out of the original 12 Articles, not ratified by the States. 


Thirty-Thousand.org provides an online work analyzing Article the First, which  includes an explanation why 11 out of 14 states (one short of the required 3/4ths), actually ratified the flawed amendment by 1792.  


Bill of Rights
Congressional Members
August - September, 1789

US House Representatives
State
US Senate
State
Huntington, Benjamin
Connecticut
Vice President
Sherman, Roger*^
Connecticut
Ellsworth, Oliver
Connecticut
Sturges, Jonathan
Connecticut
Johnson, W. Samuel*
Connecticut
Trumbull, Jonathan
Connecticut
Bassett, Richard
Delaware
Wadsworth, Jeremiah
Connecticut
Read, George*^
Delaware
Vining, John
Delaware
Few, William*
Georgia
Baldwin, Abraham
Georgia
Gunn, James
Georgia
Jackson, James
Georgia
Carroll, Charles
Maryland
Mathews, George
Georgia
Henry, John
Maryland
Carroll, Daniel*+
Maryland
Dalton, Tristram
Massachusetts
Contee, Benjamin
Maryland
Strong, Caleb
Massachusetts
Gale, George
Maryland
Langdon, John*
New Hampshire
Seney, Joshua
Maryland
Wingate, Paine
New Hampshire
Smith, William
Maryland
Elmer, Jonathan
New Jersey
Stone, Michael Jenifer
Maryland
Paterson, William*
New Jersey
Ames, Fisher
Massachusetts
King, Rufus
New York
Gerry, Elbridge^+
Massachusetts
Schuyler, Philip
New York
Goodhue, Benjamin
Massachusetts
Maclay, William
Pennsylvania
Grout, Jonathan
Massachusetts
Pennsylvania
Leonard, George
Massachusetts
Butler, Pierce*
South Carolina
Partridge, George
Massachusetts
Izard, Ralph
South Carolina
Sedgwick, Theodore
Massachusetts
Grayson, William
Virginia
Thatcher, George
Massachusetts
Virginia
Foster, Abiel
New Hampshire


Gilman, Nicholas*
New Hampshire
Executive Branch
Office
Livermore, Samuel
New Hampshire
President
New Jersey
Secretary of State
Cadwalader, Lambert
New Jersey
Secretary of Treasury
Schureman, James
New Jersey
Henry Knox
Secretary of War
Sinnickson, Thomas
New Jersey
Edmond Randolph
Attorney General
Benson, Egbert
New York


Floyd, William^
New York
Judicial Branch
Office
Hathorn, John
New York
Chief Justice
Laurance, John
New York
Silvester, Peter
New York


Van Rensselaer, Jeremiah
New York
Clymer, George*^
Pennsylvania
Fitzsimons, Thomas*
Pennsylvania
Hartley, Thomas
Pennsylvania
Hiester, Daniel, Jr.
Pennsylvania
Muhlenberg, Frederick A.
Pennsylvania
Speaker of the House
Muhlenberg, Peter
Pennsylvania
Scott, Thomas
Pennsylvania
Wynkoop, Henry
Pennsylvania
Burke, Aedanus
South Carolina
Huger, Daniel
South Carolina
Smith William L.
South Carolina
Sumter, Thomas
South Carolina
Tucker, Thomas Tudor
South Carolina
Bland, Theodorick
Virginia
Brown, John
Virginia
Coles, Isaac
Virginia
Griffin, Samuel
Virginia
Lee, Richard Bland
Virginia
Virginia
* Constitution of 1787
15 Signers
Moore, Andrew
Virginia
^ Declaration of Independence
Nine Signers
Page, John
Virginia
+ Articles of Confederation
Four Signers
Parker, Josiah
Virginia
** President of Congress
Three Presidents
White, Alexander
Virginia
United States President
Three Presidents

#
1789 Proposed Constitutional Amendments
Proposal Date
Enacted Date
1st
After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand ... until the number of Representatives shall amount to 200; after which the proportion shall be so regulated by Congress, that there shall not be less than 200 Representatives, nor more/less (in dispute) than one Representative for every fifty thousand persons
September 25, 1789
 Pending
2nd
Prevents laws affecting Congressional salary from taking effect until after the next election of the representatives.
September 25, 1789
May 7, 1992
3rd
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
September 25, 1789
December 15, 1791
4th
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
September 25, 1789
December 15, 1791
5th
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
September 25, 1789
December 15, 1791
6th
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
September 25, 1789
December 15, 1791
7th
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
September 25, 1789
December 15, 1791
8th
In all criminal prosecutions, the accused shall enjoy the right to a speedy & public trial, by an impartial jury of the State & district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
September 25, 1789
December 15, 1791
9th
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
September 25, 1789
December 15, 1791
10th
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
September 25, 1789
December 15, 1791
11th
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
September 25, 1789
December 15, 1791
12th
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


"Article The First" name as written in the engrossed 12 Amendments, now known as the Bill of Rights, passed by the first bicameral U.S. Congress - Image courtesy of the National Archives

Article the First as it appears in the Bill of Rights reads: 
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 200, 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.
Article The First's flawed text is memorialized in the engrossed 12 Amendments, now known as the "Bill of Rights,"which were passed by the first bicameral U.S. Congress on September 25, 1789. After months of contentious debate and revisions, the House of Representatives version of limiting Congressional Districts to no more than 50,000 citizens was passed, changing only one word, and became first amendment in the "Bill of Rights." It was approved by the most important Congress in United States history whose members included Vice President John Adams, Senator Richard Henry Lee, Senator Robert Morris, Representative James Madison, Representative Oliver Ellsworth, Representative Roger Sherman, Representative Daniel Carroll, Representative Elias Boudinot and House Speaker Frederick Muhlenberg. Working behind scenes with the members of Congress were President George Washington, US Treasury Secretary Alexander Hamilton, Secretary of State, Thomas Jefferson and Chief JusticeJohn Jay. Today, Article the First still remains before the States for ratification due to a Congressional gaffe that changed the wrong "less" word to word "more" in what would have been the First Amendment to the United States Constitution. - Image courtesy of the National Archives.

With Article the First in the dustbin of history, the number of citizens for each Representative increased, at a moderate rate, with each new census. It was not until the Apportionment Act of 1911 [1] and the subsequent Permanent Apportion Act of 1929 that Congress fixed the House of Representatives membership  at 435.  Since then, Congressional District populations have soared. In 2011, with the 2010 census complete, the official House member/citizen ratio (dividing the 2010 April US Census population of 309,183,463 by 435) reached 1 HR Member representing 710,767 citizens.  


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