Unadopted amendments to the Bill of Rights

- [Kim] Hi, this is Kim from Khan Academy. Did you know that what we call the First Amendment today was actually the third amendment in the original draft of the Bill of Rights? In fact, there were more than 200 proposed amendments which were whittled down to just 12. That's right, 12, not 10. So what were those two proposed amendments that weren't ratified along with the other 10? The unadopted amendments. To learn more, I talked to Fergus Bordewich. He's a writer and a historian, and the author of The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government. These unadopted amendments which weren't included in the Bill of Rights aren't nearly as well known, so what were they? - [Fergus] Well, to put it in context, there were more than 200 amendments originally proposed during the First Congress. James Madison had the responsibility of winnowing those 200 down to a manageable number. He compressed them finally down to 19, then to 17, and finally, to 12. Twelve were approved by the First Congress. Ten of them are the ones that we today call the Bill of Rights, but nobody then referred to them as the Bill of Rights. Madison and other members of the First Congress referred to them as adjustments of the Constitution, alterations of the Constitution, and sometimes as amendments, but the term Bill of Rights only came into use in the 20th century. - [Kim] Really, I had no idea. - [Fergus] Members of the First Congress often talked about the lack of a Bill of Rights, and they referred to Bills of Rights that some states had, but the first ten amendments to the Constitution were not treated as a Bill of Rights. In fact, those who most wanted a Bill of Rights said this isn't one. - [Kim] Okay, so we end up with 12 adjustments to the Constitution, but in today's Bill of Rights, there are only 10. So what were those other two? - [Fergus] One of them had to do with the apportionment of seats in Congress, how many seats would there be, and how many people would each member of the House of Representatives represent. That was one amendment. The other had to do with the method of providing salaries for members of the Senate and the House of Representatives. - [Kim] All right, so we have the text of these two unadopted amendments here. One says, after the first enumeration required by the first article of the Constitution, there shall be one Representative for every 30,000, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress that there shall not be less than 100 Representatives, nor less than one Representative for every 40,000 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 200 Representatives, nor more than one Representative for every 50,000 persons. Okay, so it seems like the general gist here is setting up a proportional arrangement about the House of Representatives. The other one's a little bit shorter. It says, no law varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. So you can't change how much Senators and Representatives get paid without an election in-between, so they can't raise their own salaries. So why did these two amendments end up on the cutting room floor? - [Fergus] Well, bear in mind that both of these were approved by Congress. Then they went out to the states, they had to be ratified by the states. The states ratified the other ten that we're all familiar with. They almost ratified the amendment having to do with the apportionment of seats in Congress. That ratification fell short by one state. The other one having to do with the salaries of Congress, although it was very uncontroversial, simply didn't generate enough interest to be ratified. The two amendments which failed to be ratified, were the only two that strictly do not have to do with rights. I don't think that there was a very passionate concern for them among the voting public. Did the Constitution need to be amended in order to establish a process for setting member salaries? Well no, it didn't. We know that it did not. Was it necessary to amend the Constitution to set a principle of apportionment? Well, apparently not. I think, by and large, Americans and our Representatives recognize principles that rise to the level of Constitutional amendment. With respect to these two amendments, neither of them really has to do with rights, and that's why we somewhat misunderstand them if we're always referring to a Bill of Rights, because these two are not rights. They're essentially more on the order of Congressional housekeeping. There was virtually no debate in Congress at all about the proposed amendment that would enable Congress to provide salaries for members. Everybody thought this is a pretty good idea. In point of fact, as we all know, in the 200 years plus since then, Congressional salaries have been raised by legislation when needed. It turned out that the amendment absolutely wasn't necessary, even though it was finally ratified in 1992. Now, there was a great deal of debate, however, over the apportionment of seats in the House of Representatives. In the first House of Representatives, there were only 59 members. They represented districts of widely varying size. For example, one representative from Georgia represented 16,000 people. A representative from the Maine district of Massachusetts, Maine was not a separate state then, represented 96,000. The sharpest debate was over how many individuals would a given member of the House represent. They had to come up with a number. It wasn't obvious what the number should be. The debate really was over whether each Representative would represent 30,000 or 40,000. This doesn't sound important today, but our country was much smaller, obviously much smaller, and these were fairly big numbers for the time. Those who argued for each Representative representing 30,000, wanted a larger House of Representatives. It was a more populist kind of idea. The people who argued most forcefully for it were anti-Federalists, that's to say, those were the people who really didn't like the Constitution at all. They didn't even want it. They wanted what they saw as a more democratic House of Representatives. More conservative members argued for a smaller House of Representatives based on the idea that the larger it would be, the less manageable it would be. James Madison himself was very hostile to the idea of a larger House of Representatives, arguing that it would be a step towards tyranny because a body too large would fall victim to demagogues. - [Kim] This is really fascinating, because even if we had gone with 30,000 or 40,000, today the House of Representatives would have more than 10,000 people in it. But today, we only have 435 Representatives in the House. How did we get from there to here? - [Fergus] Well, Congress did provide for the incremental increase in the size of congressional districts, knowing that population would increase. Everybody knew it was going to increase. Nobody in 1789 or 1790 could imagine a country of two hundred million people. The outermost number that they contemplated in 1790 was about 200. We now know it's 435. Over time in the 19th century, as we admitted more states, we added more population and more representatives. The politics of stopping it at 435 is frankly a little intricate. But at any rate, the number continued to increase through the 19th century into the 20th century. There was no reapportionment after the census of 1920. The Republicans who dominated in Congress at the time worried that reapportioning after 1920 would increase the number of Democrats. It became a partisan issue. There was no reapportionment until later in the 1920s, when it was stopped at 435. Since then, there's basically been a consensus that this is a manageable number. - [Kim] One of these amendments actually reappeared and was passed in 1992. Can you tell us a little bit about the story of this lost amendment? - [Fergus] Yeah, it's a cute story. A student at the University of Texas in the 1980s was writing a paper for history class and stumbled across this long forgotten amendment, and wrote about it, and was given, I believe, a C grade for it because his professor considered the subject irrelevant and inconsequential. His name was Gregory Watson. He was so, I think, frustrated by the grade but also inspired by the story of this forgotten amendment that he began to wage initially a one-man, a one-student lobbying campaign. Astonishingly enough, within a decade, nearly every state ratified that amendment, all but four states. So it has now since '92, been an amendment to the Constitution. Frankly, a not very relevant one because Congress has raised congressional salaries by ordinary legislation for more than 200 years. They didn't really need the amendment to do so. - [Kim] Looking back over the history of Constitutional amendments, you see that they kind of come in bunches. There are the ten that come immediately after the adoption of the Constitution. Then there are the Reconstruction amendments that come right after the Civil War. Then there are the Progressive-era amendments, ones like Prohibition or women's right to vote. Then there's been kind of a lull in Constitutional amendments This 1992 amendment is the 27th and final. So are there more amendments coming and if so, what might they be about? - [Fergus] Well, it's very difficult to amend the Constitution. That's one reason there are so few. There are other countries which have immensely long Constitutions and amend them all the time. We're extremely conservative as a nation historically in tampering with or altering our Constitution. Let's look at a couple of recent ones. There was the Equal Rights Amendment, an amendment to guarantee, across the board, equal rights to women, which almost passed. I believe it fell short by only one state, back in the 1970s. That came within a hair of being ratified. Another amendment that had some vigor in it in recent years was one to provide a voting member for the District of Columbia. The District of Columbia is not a state. It's a unique entity. The Constitution does not provide for the seat of government to be a state. So it's very tricky, legally and constitutionally, what is the District of Columbia. There was a proposed amendment that would enable D.C. to have a voting member. I think both of these amendments, which were proposed but were not ratified, may return. I do think at some point, D.C. will be given a status that enables it to have voting representation in Congress. I'm not sure what the formula will be. There is a renewed effort underway currently to reintroduce the Equal Rights Amendment. I think as women increasingly have a higher profile and more influence politically that the possibility of that one day becoming an amendment to the Constitution is foreseeable. - [Kim] One thing that we haven't discussed so far is that when the Bill of Rights originally was passed, it only applied to the federal government, not to the states. How does that intersect with these unadopted amendments? - [Fergus] Very important point. James Madison, who did more than any other member of Congress to shape what we now call the Bill of Rights, Madison argued that these amendments should also apply, and especially the protections of civil rights that we find in the First Amendment and others, that they should apply to states. He argued vigorously that they should be meant to apply to states. He failed, he wanted that to be explicit in the Bill of Rights. It is not, because the power of states rights within Congress was still so great in 1790, that states would not accept it. When did that change? The Reconstruction-era amendments, designed initially to provide rights for black Americans, for African Americans coming out of slavery, made clear that the Bill of Rights had to be applied across the board in states. Was it, practically speaking? No, it wasn't. In point of fact, those Reconstruction amendments were largely disregarded and ignored for many years, until the 20th century civil rights movement, particularly beginning in the 1950s, began to put federal muscle behind the enforcement of those amendments. - [Kim] And here, we're specifically discussing the 14th Amendment and its equal protection clause, which was passed after the Civil War to guarantee citizenship rights to African Americans but was really, as we know from the Jim Crow laws, something that existed on paper but not in reality. It took the work of civil rights groups and federal enforcement to make these rights that existed on paper, a reality. - [Fergus] Absolutely correct. It's really a modern notion. When I say modern, I mean a 20th century notion, that all Americans should expect to have equal rights in practice under the law. In the 19th century, equal rights were not enforced, regardless of what the Constitution or the Bill of Rights says. Without a federal government committed to it, they won't be enforced. - [Kim] So we've learned that there were more than 200 proposed amendments to the US Constitution, that James Madison whittled down to just 12. Of those, only ten were ratified at the time of the Framing. The unadopted amendments show us just how important ratification is to the amendment process. Even if an amendment is proposed and passed by Congress or a special convention of the states, to become law, three-quarters of the states must ratify it, which is really hard to do. What do you think the next Constitutional amendment will be? The Equal Rights Amendment? Representation for the District of Columbia, or something completely different? To learn more about the Bill of Rights, check out the National Constitution Center's interactive Constitution, and Khan Academy's resources on US government and politics.