The other ‘First Amend­ment’

The orig­i­nal mea­sure was in­tended to es­tab­lish Congress as the voice of the peo­ple

The Washington Times Daily - - OPINION - By Roger Beck­ett Roger Beck­ett is ex­ec­u­tive di­rec­tor of the Ash­brook Cen­ter (Ash­ at Ash­land Univer­sity in Ohio.

Ex­actly 225 years ago, on Dec. 15, 1791, the first 10 amend­ments to the Con­sti­tu­tion — the Bill of Rights — be­came the law of the land. One-hun­dred-and-fifty years later, in 1941, Pres­i­dent Franklin D. Roo­sevelt, who de­scribed the Bill of Rights as “the great Amer­i­can char­ter of per­sonal lib­erty and hu­man dig­nity,” is­sued a procla­ma­tion declar­ing Dec. 15 Bill of Rights Day. Ev­ery pres­i­dent since has con­tin­ued this prac­tice.

Most Amer­i­cans are fa­mil­iar with the Bill of Rights. What most Amer­i­cans don’t know is that the first Congress orig­i­nally pro­posed a slate of 12 amend­ments, one of which was never rat­i­fied and may de­serve a fresh look.

The orig­i­nal first amend­ment had to do with the size of Congress. This is the one that has not been rat­i­fied. The orig­i­nal sec­ond amend­ment had to do with con­gres­sional pay. It even­tu­ally was rat­i­fied, but not un­til 1992, as the 27th Amend­ment.

What we know to­day as the First Amend­ment — stat­ing that “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” — was third on the orig­i­nal list. What we iden­tify to­day as the Sec­ond Amend­ment was fourth, and so on.

The states prob­a­bly were right to re­serve ac­tion on the orig­i­nal first and sec­ond amend­ments, which were more struc­tural in na­ture than the rest of the amend­ments, which place lim­i­ta­tions on gov­ern­ment by “we the peo­ple,” guar­an­tee­ing that cer­tain in­di­vid­ual rights take prece­dence over the au­thor­ity of the state.

The lan­guage is mostly pro­scrip­tive. Gov­ern­ment is told that it “shall make no law” lim­it­ing free­dom of ex­pres­sion or the right of the peo­ple to as­sem­ble and seek “re­dress of griev­ances.” The right to keep and bear arms “shall not be in­fringed” by gov­ern­ment. The right of the peo­ple and their houses and ef­fects “to be se­cure … against un­rea­son­able searches and seizures, shall not be vi­o­lated” by gov­ern­ment. “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.”

The 12 amend­ments were sub­mit­ted to the states for rat­i­fi­ca­tion on Sept. 25, 1789. Be­tween Jan. 25, 1790 and Dec. 15, 1791, enough state leg­is­la­tures rat­i­fied the third through the 12th amend­ments for them to be­come part of the Con­sti­tu­tion. The first and sec­ond amend­ments were not ap­proved by enough states.

Which brings me back to the for­got­ten first amend­ment.

The orig­i­nal first amend­ment pro­posed set­ting the size of Congress at one rep­re­sen­ta­tive for ev­ery 30,000 peo­ple — in­creas­ing to one rep­re­sen­ta­tive for ev­ery 50,000 peo­ple as the coun­try grew. As the de­bates at the time made clear, the pur­pose was to guar­an­tee that the House of Rep­re­sen­ta­tives — the peo­ple’s House — would re­main close to the peo­ple.

The for­mula made sense in 1789, when the en­tire U.S. pop­u­la­tion was around 3.9 mil­lion. But one rep­re­sen­ta­tive for ev­ery 50,000 peo­ple may be im­prac­ti­cal to­day, pro­duc­ing a House of Rep­re­sen­ta­tives with more than 6,100 mem­bers, rather than the cur­rent 435.

But putting aside the im­prac­ti­cal­ity of the orig­i­nal first amend­ment, we should re­mem­ber that this is what the Framers put first. They thought Congress should be the first branch of gov­ern­ment, so they put it first as Ar­ti­cle I in the Con­sti­tu­tion. And they knew that keep­ing rep­re­sen­ta­tives close to the peo­ple would be crit­i­cal to the suc­cess of their ex­per­i­ment in self-gov­ern­ment, so they put it first in the orig­i­nal Bill of Rights.

One of the main com­plaints about Wash­ing­ton to­day is that it’s be­come a city of re­mote lawyer politi­cians, ca­reer bu­reau­crats and an im­pe­rial White House, all of whom are out of touch with “fly­over Amer­ica.”

The orig­i­nal first amend­ment was in­tended to firmly es­tab­lish that Congress would re­main the voice of the peo­ple. Per­haps it’s time to con­sider how we might re­claim that vi­sion.


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