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October 22, 2007 10:00 ET

The Mystery of the Bill of Rights' First Amendment

DUNWOODY, GA--(Marketwire - October 22, 2007) - Why the very first amendment proposed in the Bill of Rights was never ratified and how that failure put the U.S. House of Representatives on the path to oligarchy.

THE TWELVE BILLS OF RIGHTS

Very few people know that the Bill of Rights document drafted in 1789 contains twelve articles of amendment (not ten). Of those twelve, only the last ten were ratified to the U.S. Constitution prior to 1791. As a result, our Constitution's "First Amendment" had originally been proposed as "Article the third," and the "Second Amendment" was originally "Article the fourth," and so forth. And, to further confuse matters, the Bill of Rights' "Article the second" was not ratified until 200 years later -- as the 27th Amendment -- which finally limited Congress' ability to increase its own compensation.

However, "Article the first" -- the very first amendment proposed in the Bill of Rights -- was never ratified. A new report from Thirty-Thousand.org solves the mystery of this forgotten amendment: it was intended to ensure a much larger -- and truly representative -- House of Representatives.

ARTICLE THE FIRST...

The intended purpose of "Article the first" was to require a minimum number of Representatives proportionate to the nation's total population. Our Constitution does not prescribe such a minimum (other than one Representative per state); referring to this omission, James Madison stated that he had "always thought this part of the constitution defective." He also believed that an amendment establishing a minimum number of Representatives -- in proportion to the total population -- was necessary "to secure the great objects of representation."

In the absence of such an amendment there is nothing to prevent Congress from permanently freezing the number of Representatives or even making the House much smaller than it is now. "It is clear from the historical record that a majority of the framers of the Constitution and the Bill of Rights wished to prevent the establishment of an oligarchy in our House of Representatives," said Jeff Quidam, Thirty-Thousand.org's founder, "so perhaps that is why this amendment was the first of twelve in the Bill of Rights."

Though the National Archives' web site provides an image of the original Bill of Rights document showing all twelve articles, its "transcript" inexplicably omits (as of this writing) any reference to its first two amendments. However, they can be seen by downloading the high-resolution .jpg from their site and magnifying that image.

MOVING TOWARDS OLIGARCHY

From 1790 to 1910, the size of the House was usually increased every ten years as a result of population growth -- as was intended by the framers. The last permanent increase occurred when the number of Representatives was increased to 435 after the 1910 census.

After the next census, in 1920, Congress failed to reapportion the House (in violation of the Constitution); so the size remained at 435. Having become comfortable with that number, Congress passed an act in 1929 which made 435 the permanent size of the House. During the debates preceding the passage of that act, Missouri Representative Ralph Lozier stated that "The bill seeks to prescribe a national policy under which the membership of the House shall never exceed 435 ... I am unalterably opposed to limiting the membership of the House to the arbitrary number of 435. Why 435? Why not 400? Why not 300? Why not 250, 450, 535, or 600? Why is this number 435 sacred? What merit is there in having a membership of 435 that we would not have if the membership were 335 or 535? There is no sanctity in the number 435 ... There is absolutely no reason, philosophy, or common sense in arbitrarily fixing the membership of the House at 435 or at any other number."

WHY 435?

Is 435 the right size? If so, why? If not, should the House of Representatives be larger or smaller? If 435 was thought to be the appropriate size when the population was 91 million (per the 1910 census), should it be increased to reflect the fact that the total population has since more than tripled?

Thirty-Thousand.org believes that Americans would be better served by substantially increasing our number of federal Representatives; chief among the reasons for doing so is the need to achieve one-person-one-vote parity nationwide as well as the need to better reflect the diversity of the citizenry in the legislative branch.

Historical support for this position is provided by "Article the first" which, though generally overlooked by scholars, is both historically significant and quite interesting. This would-be first amendment was intended to establish a minimum number of Representatives proportionate to the total population; however, it was effectively sabotaged by an ostensibly minor modification made at the last minute by a joint House-Senate committee. In fact, this modification not only subverted the amendment's purpose, but it also introduced a mathematical defect which would have later rendered it inexecutable.

Largely because this subtle modification was generally unnoticed initially, "Article the first" was affirmed by every state except Delaware. Had the proposed amendment not been crippled then it might have eventually been ratified (as originally worded) and, as a result, we would now have approximately 6,000 Representatives!

Should there be 6,000 Representatives? Consider this: the population size of congressional districts in the U.S. varies widely with some districts nearly twice as large as others. As a result, the House is in egregious violation of the Constitutional principle of one-person-one-vote. In order to reduce the population difference below 5% -- between the smallest and largest districts nationwide -- the number of Representatives would have to be increased to over 6,300.

Surprisingly, no scholarly books or articles about "Article the first" have been published. Perhaps an unratified amendment is not worthy of scholarly attention even though it was affirmed by every state except one. Or perhaps it has been completely overlooked for other reasons.

THIRTY-THOUSAND.ORG

For additional information on, and substantiation of, all the foregoing please visit http://www.thirty-thousand.org.

Established in 2004, thirty-thousand.org is a non-partisan and non-profit organization which conducts research on, and educates the public about, the degradation of representative democracy in the United States resulting from Congress' longstanding practice of constricting the number of Representatives relative to the total population.

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