The other ‘First Amendment’
The original measure was intended to establish Congress as the voice of the people
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.