Wednesday, January 9, 2013

Article The First


Article the First 


Sabotage or Clerical Error

In an earlier edition of this website, a case was made for ratifying the Constitution of 1787’s forgotten first amendment, Article the First, which remains before the States.   What follows in this is a retraction of that plea and an in-depth analysis of Article the First, based solely on primary sources.  This complete revamping of this site was necessary to correct certain errors in my previous edition and to examine the charge that the Bill of Rights’ original first amendment failed ratification due to political sabotage.  


Students and Teachers of US History this is a video of Stanley and Christopher Klos presenting America's Four United Republics Curriculum at the University of Pennsylvania's Wharton School. The December 2015 video was an impromptu capture by a member of the audience of Penn students, professors and guests that numbered about 200.

Checks and Balances

In 1787, the framers took the lessons learned over 13 years from both the state governments and three different unicameral United American Republics to enact a constitution peppered with “checks and balances.”  Most U.S. citizens know that this fundamental “check and balance” principle ensures that each branch of the government (executive, judicial, and legislative) exercises some measure of influence over the other branches. These Constitutional “checks and balances” were specifically designed to prevent any one branch from accumulating too much power while encouraging cooperation between branches as well as comprehensive debate on contentious policy issues. 

What citizens do not understand, however, is that the framers of the Constitution of 1787 and the Bill of Rights provided two additional checks on the federal government that were most potent but are currently defunct. In the last edition, this chapter argued that these rejected checks are primarily the reason why the states and citizens are disengaged from the federal legislative process and distrustful of Congress.


Constitution of 1787 Checks and Balances: "Nothing checks ambition better than ambition."   - Economic Home Runs,  page 28

The first forgotten check on the federal government can be found in the Constitution of 1787’s Article I, Section 3 and it states:  “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.”   In other words, Article I, Section 3 required each state’s legislative body, rather than its citizens, to choose its two U.S. Senators.[1]  This Senate provision was the original instrument that ensured “State Rights” in the legislative, executive and judicial branches of the federal government because all presidential nominations for executive and judicial posts take effect only when confirmed by the Senate, and international treaties become law only when approved by a two-thirds vote of the Senate.[2]

From 1789 until 1913, United States Senators served, essentially, as ambassadors of the individual states to the Federal Government.  Senators unequivocally represented their States’ interest and took instructions directly from the legislative branch of their respective state governments. The first significant example of state power in this regard was in 1788, when Patrick Henry, as a powerful member of the Virginia House of Delegates, used his voting block to thwart James Madison's aspirations for a seat in the United States Senate.   Henry then used his influence to draw-up a Virginia Congressional District that gave James Monroe the voter advantage over Madison in the House race between two future U.S. Presidents. In order to placate Patrick Henry’s anti-federalist supporters, James Madison was forced to promise that, if elected, he would introduce constitutional amendments.  Winning his home county of Orange 216 to 9, Madison won the election by 1,308 to 972 over James Monroe.

Madison questioned the necessity of a federal bill of rights but was forced to face the issue early in the first House session.  On June 8th, 1789, he introduced in the House proposed amendments that were primarily related to civil liberties rather than the structure of the government. Henry and the antifederalists believed Madison's proposals were a far cry from the Amendments that they had proposed at the ratification convention and, on August 13th, antifederalists introduced amendments changing the structure of the federal government and protecting the rights of the states from encroachment. The debate was vibrant and Representative Madison, due to Patrick Henry’s blocking of his election to the Senate, found himself the pivotal Congressman in framing what we now call the Bill of Rights.

Under the Constitution of 1787 Article I, Section 3, U.S. Senators were also actively engaged in the election of local State legislators. When Abraham Lincoln and Stephen Douglas traveled around Illinois in 1858 debating each other as they vied for a seat in the U.S. Senate, they weren't looking for votes from the citizens.  Douglas, the incumbent senator and Lincoln, who had served one term in the House, were seeking votes from the State Delegates and Senators in the Illinois legislature. For 124 years, State legislators, not lobbyists,[3] worked closely with U.S. Senators in drafting bills to be introduced in Congress. U.S. Senators spent the majority of their time in the Senate actually conducting the nation’s business, as opposed to today’s members whose schedules are consumed with fund raising-related duties.[4]  The 17th Amendment’s provision for direct popular vote elections, while purportedly giving “power to the people,” in fact stripped the States’ constitutional check over the Senate.[5]

A forgotten and failed check – a maximum citizen limit for Congressional Districts – is more multifaceted because, although loosely followed by Congress for 120 years, it was never enacted.  This original people’s check on the federal government was proposed by Congress on September 25th, 1789, as the first article in the HR/Senate 12-Amendment Resolution commonly known as the “Bill of Rights.”    Its first amendment, known as Article the First, proposed a 50,000 maximum citizen limit on Congressional Districts to ensure that the House of Representatives would be comprised of citizen-legislators who were personally known to their constituents.   Today, Article the First remains the only amendment in the Bill of Rights not ratified.

In direct opposition to the spirit of Article the First, the 435-member limitation set on the House of Representatives was launched on August 8th, 1911, when President William H. Taft (R) signed the 62nd Congress’ Apportionment Act of 1911, increasing House membership from 391 to 433. The act also included provisions to add two more members when New Mexico and Arizona became states. The legislation took effect on March 13th, 1913, during the 63rd Congress (1913–1915). 

The bill’s modest increase of Representatives from the previous census was a direct result of members raising concerns that the House was growing to an unwieldy size. Republican Representative Edgar Crumpacker of Indiana, however, who chaired the House Committee on the Census, argued just the opposite:

Members are . . . supposed to reflect the opinion and to stand for the wishes of their constituents. If we make the ratio [of persons per Representative] too large the idea of representation becomes attenuated and less definite. The personal interest of the voter in his representative becomes less important to him, and we may lose something of the vital strength of our representative form of government. [6]

For the first time after a decennial census, Congress failed to re-apportion the House in 1920. Previously, the House had reapportioned itself in a manner that expanded the representation of the early Congresses. The methods for calculating apportionment by the 1920’s, however, caused the smaller rural states to lose representation to the larger urbanized states, whose population was growing. Additionally, Article the First had not been ratified to cap Congressional Districts at 50,000, so Congress was free to break the 120 year-old tradition: the Constitution of 1787 called only for at least one Representative per state and no more than one Representative for every 30,000 persons. A political battle erupted between rural and urban factions resulting in no reapportionment following the 1920 Census.

It was not until the eve of the next census that Republican Majority Leader John Q. Tilson of Connecticut took the lead in developing a House reapportionment plan for the 1930's. In direct opposition to Article the First, Tilson led the effort to pass the Permanent Apportionment Act of 1929, fixing the number of Representatives at 435. The House of Representatives Historian writes:

Signed into law on June 18, 1929, the Permanent Apportionment Act capped House Membership at the level established after the 1910 Census and created a procedure for automatically reapportioning House seats after every decennial census. Republican Majority Leader John Q. Tilson of Connecticut approvingly declared that the act dispelled the “danger of failing to reapportion after each decennial census as contemplated by the Constitution.” But opponents, such as William B. Bankhead of Alabama, who doubted its constitutionality, had earlier described the plan as “the abdication and surrender of the vital fundamental powers vested in the Congress of the United States by the Constitution itself.” [7] 

In 1941, the Democratic-controlled Congress adopted the current formula for reapportioning House seat districts, still limiting the House of Representatives to 435 members (See 54 Stat.L. 761, November 15, 1941); the House has remained at 435, except for a temporary increase to 437 Members from 1959 to 1961, after Alaska and Hawaii achieved statehood. 

Congressional Districts are now 14 times larger than the population cap proposed under Article the First.  Following the 2010 Census, the populations of Congressional District have soared to 710,767 citizens, and, every two years, House candidates spend millions of dollars for media sound bites designed to reach over a half-million voters whom Representatives can’t possibly ever know. Having created no additional House representation for over 100 years, Congress instead has employed over 12,000 “staffers” to conduct legislative business on Capitol Hill.  

To put these 12,000 staffers (almost 20 per House member) in context: Up until the 1890’s, House members were allotted no paid staff because their small districts’ voting population numbered less than 50,000 citizens per Representative.[8]  This changed in 1893, when House members were allotted one paid staff member each.  The following chart shows the growth of House staff from 1893 to 2013.[9]

Fiscal Year
Authorized Staff [1]
1893
1 to 2
1919
2
1940
3
1945
6
1949
7
1955
8
1956
9
1961
10
1965
11
1966
12
1969
13
1971
15
1972
16
1973
18




[1] Chart is taken from a 1993 Congressional Report and shows the increase in the number of staff for each member of the House of Representatives since 1893.  Before 1893 the House members paid for their own staff.  Since the 1919 staff allotment of two, the House of Representatives has been fixed at 435 Representatives.  For more information on House staff and salaries please read  The Number of Congressional Staff Is the Real Problem by Daniel J. Mitchell

Today, based on the 2010 census, the 19 paid public servants allotted for each Congressional District of 539,228 voters translates into one paid public servant per 28,380 citizens over 18.  Since 1910,  just before the first House Apportionment Acts were passed,  House staff has grown from 500 for a 92 Million Population in 1910 to 12,200 (2,420% increase) for a 308 Million Population in 2010 (342% increase), while the number of HR members increased from 394 in 1910 to 435 (9% increase) in 2010.


In 2015, Congressional Districts now exceed a population of 725,000 citizens and inexperienced staffers, usually not from their Representative’s home district, are overwhelmed by the current constituent base. According to the Washington Times, these 24 year old staffers are running the House of Representatives:

The most powerful nation on Earth is run largely by 24-year-olds.  High turnover and lack of experience in congressional offices are leaving staffs increasingly without policy and institutional knowledge, a Washington Times analysis of a decade of House and Senate personnel records shows — leaving a vacuum that usually is filled by lobbyists. Most Senate staffers have worked in the Capitol for less than three years. For most, it is their first job ever. In House offices, one-third of staffers are in their first year, while only 1 in 3 has worked there for five years or more.

Among the aides who work on powerful committees where the nation’s legislation takes shape, resumes are a little longer: Half have four years of experience. When Americans wonder why Congress can’t seem to get anything done, this could be a clue. It’s also a sharp difference from the average government employee: Unlike many state and federal workers with comfortable salaries, pensions and seemingly endless tenures, those in the halls of power are more likely to be inexperienced and overworked. Low pay for high-stress jobs with less-than-stellar prospects for advancement takes a toll on institutional memory and expertise.

While senators make $174,000, staff assistants and legislative correspondents — by far the most common positions in the Senate — have median pay of $30,000 and $35,000, respectively, significantly less than Senate janitors and a fairly low salary for college graduates in a city as expensive as Washington. Historical pay records were transcribed from book form by the website egistorm.

The size of committee and members’ staffs have remained the same over the past decade, and salaries have often not risen with inflation — or at all. The average legislative counsel in the House made $56,000 last year, less than in 2007. While pay for parking-lot attendants in the House increased from $26,000 to $49,000 in the past decade, pay for staff assistants, who make up the bulk of the House’s workforce, rose from $26,000 to $30,000. That puts them in the bottom fifth of the region’s college-educated workforce. [10]

Moreover, the combination of an inexperienced staff with elected members who spend most of their time fundraising has created a vacuum of competency that has been filled with seasoned experts paid by the money of Special Interest.  National Public Radio reports that 11,000 Lobbyists are writing the House’s bills:

It's taken for granted that lobbyists influence legislation. But perhaps less obvious is that they often write the actual bills — even word for word. In an example a week and a half ago, the House passed a measure that would roll back a portion of the 2010 financial reforms known as Dodd-Frank. And reports from The New York Times and Mother Jones revealed that language in the final legislation was nearly identical to language suggested by lobbyists.  It's been a long-accepted truth in Washington that lobbyists write the actual laws, but that raises two questions: Why does it happen so much, and is it a bad thing?[11]

Lee Fang’s "Where Have All the Lobbyists Gone?” not only provides a graphic  mapping out special interest influence on Capitol Hill but provides $3.2 billion annual estimate in lobbyist spending:

On paper, the lobbying industry is quickly disappearing. In January, records indicated that for the third straight year, overall spending on lobbying decreased. Lobbyists themselves continue to deregister in droves. In 2013, the number of registered lobbyists dipped to 12,281, the lowest number on file since 2002.

But experts say that lobbying isn’t dying; instead, it’s simply going underground. The problem, says American University professor James Thurber, who has studied congressional lobbying for more than thirty years, is that “most of what is going on in Washington is not covered” by the lobbyist-registration system. Thurber, who is currently advising the American Bar Association’s lobbying-reform task force, adds that his research suggests the true number of working lobbyists is closer to 100,000.

A loophole-ridden law, poor enforcement, the development of increasingly sophisticated strategies that enlist third-party validators and create faux-grassroots campaigns, along with an Obama administration executive order that gave many in the profession a disincentive to register—all of these forces have combined to produce a near-total collapse of the system that was designed to keep tabs on federal lobbying.

While the official figure puts the annual spending on lobbying at $3.2 billion in 2013, Thurber estimates that the industry brings in more than $9 billion a year. Other experts have made similar estimates, but no one is sure how large the industry has become. Lee Drutman, a lobbying expert at the Sunlight Foundation, says that at least twice as much is spent on lobbying as is officially reported. [12]

In summary, the failure to enact Article the First, the people’s check on the House of Representatives, has allowed powerful Congressmen to create enormous Congressional Districts that elevate their seats to a hallowed status while rendering impossible a successful grass roots campaign based on ideas and issues by a working class candidate.   21st-century door-to-door campaigning is fruitless except as a public relations stunt to attract traditional media coverage or produce a viral internet opportunity. The purchase and mastery of mass media, not personal contact, is the marketing mix that ultimately persuades 540,000 eligible voters to elect and re-elect House members.




The 1789 Congress’ bungling of Article the First has enabled powerful members of Congress to enact House Apportionment Acts that entrench incumbents while empowering special interests, the highly partisan two-party system, the media, and citizens of great personal wealth.  These House Apportionment Acts, more so than any other laws, are responsible for the people losing their check on the federal government.  If the citizens of the United States truly seek a mechanism to break the two-party stranglehold, end partisan politics, birth new political parties, and obliterate special interest influence over the House, then Article the First should be resuscitated.  

What happened to the Bill of Rights Article the First? 

On September 25th, 1789, the First Bicameral Congress of the United States proposed to the state legislatures 12 amendments to the Constitution of 1787.  This was a painstaking process because, only a year earlier, the States had proposed more than two hundred amendments during the Constitution’s ratification process.

When repetitious amendments are eliminated, over one hundred separate proposals can be identified. Most sought to change the structure of the federal government or the balance of power between it and the states, while others focused on protecting individual rights. [13]

The first group of amendments actually to pass were formulated by the House of Representatives (HR) on August 24th, 1789 and numbered 17 Articles. The first amendment concerned congressional apportionment and sought to limit congressional districts to a maximum size of 50,000 citizens.[14]

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.

The second set of 12 approved amendments was passed by the U.S. Senate between September 4th and 9th.  The Senate placed its congressional apportionment amendment as Article the First; it limited congressional districts to a maximum size of 60,000 citizens.

Article the First: 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.



Front and Back of the proposed Amendments to the U.S. Constitution broadside as passed by the House of Representatives and on August 24th, 1789. Images are from the National Archives of the United States.

Images are from the Records of the U.S. Senate National Archives
Samuel Otis, Secretary of Senate 12-Amendment Broadside with “ag” written in the margins of the Articles agreed to and lines through the articles that were changed by the HR-S CC. Images courtesy: Records of the Senate in the National Archives

The HR and Senate each elected the following members for a House–Senate Conference Committee to finalize all HR-Senate amendments “disagreed to:”  


  • Representatives: James Madison of Virginia, Roger Sherman of Connecticut and John Vining of Delaware. 
  • Senators: Oliver Ellsworth of Connecticut, Charles Carroll of Maryland and William Paterson of New Jersey[15]

On September 21st, 1789, a House–Senate Conference Committee (HR-S CC) convened to resolve the numerous differences between the two Bill of Rights proposals.  On September 24th, 1789, the HR-S CC submitted their recommendations to the House of Representatives and the Senate. The original committee report, written in the hand of Senator Oliver Ellsworth, was read in the Senate by Ellsworth:

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. [16]

This report was ordered to lie for consideration. [17]


Page two of U.S. Senator Oliver Ellsworth’s handwritten report of the Conference Committees recommending changes to the House version of Article the First. Images are from the Records of the Senate from the National Archives of the United States.

Page one of U.S. Senator Oliver Ellsworth’s handwritten report of the Conference Committees, recommending changes to the Senate’s Article the Third and Article the Eighth. - Images are from the Records of the U.S. Senate National Archives

While the U.S. Senate attended to other matters, the House of Representatives drafted and seemingly passed a resolution adopting HR-S CC’s recommendations and rushed it up to the Senate floor:

A Message from the House of Representatives: Mr. Beckley, their Clerk brought up the Amendments to the 'Articles to be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States;' and informed the Senate, that the House of Representatives had receded 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 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.”
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." [18] 


September 24th, 1789, House and Senate Journals. The person who was responsible for creating a HR Bill of Rights Resolution ignored the Conference Committees’ recommendation of the "last line but one" change in Article the First. Instead the word 'less" was ordered changed in the "last place" of the Article. The Senate, unlike the House, read the entire report into the record.
The HR Bill of Rights Resolution, however, failed to incorporate the HR-S CC penultimate line language “in the last line but one.” Instead, the House had substituted its own verbiage, “in the last place of the said first article,” rendering Article the First dysfunctional. Despite this serious divergence from HR-S CC’s recommendations, which no one apparently noticed, the Senate approved the HR Bill of Rights Resolution on September 25th, 1789.


Transmitting 12-Amendments to the States

On September 24th, 1789, the House passed a resolution that ordered the proposed Bill of Rights to be engrossed and transmitted by President George Washington to the 11 United States, plus Rhode Island and North Carolina (even though they had not ratified the Constitution of 1787).  The Senate approved the resolution on September 26th, 1789. The Clerk, rightly, inscribed the Bill of Rights according to the language of the approved HR/Senate Bill of Rights Resolution, even though it differed from the HR-S CC report; this divergence ultimately doomed Article the First to the dustbin of failed U.S. Constitutional Amendments. According to an analysis written in 2007, the engrossed Article the First with its one word change was dead on arrival for the following reasons:

1.    A Redundant Maximum: It imposed … a new formula for determining the maximum size of the House. This was clearly unnecessary given that the Constitution (drafted only two years earlier) already provided the method for determining the maximum size (“shall not exceed one for every thirty Thousand”). Moreover, the new and more restrictive maximum (of one representative per 50,000) would not be activated until the total population reached 8 million, at which point a significant & discontinuous reduction in the maximum size of the House becomes imposed. 
2.    An Irresolvable Math Error: It incorporated an internally contradictory math error in that — for a given population range — the required maximum would be below the required minimum.
3.    Failed to Maintain a Proportionate Minimum: Though the amendment proposed a proportionate minimum size as long as the total population remained below 8 million, beyond that number it effectively abandoned the need to define a minimum. This reversed the original intent of the amendment by eliminating the guidance for determining a minimum size for the House that would have been proportionally commensurate with our nation’s total population. [19]



The transmittal letter reads as follows:




United States, October 2nd 1789

Sir, In pursuance of the enclosed resolution I have the honor to transmit to your Excellency a copy of the amendment proposed to be added to the Constitution of the United States. I have the honor to be, With due Consideration, Your Excellency’s Most Obedient Servant,

George Washington  

                                         

Image from the U.S. National Archives



Engrossed 12-Articles proposed by the 1789 Congress to amend the Constitution of 1787 that was sent to the States for ratification consideration.  Article the First remains the only amendment, due to its dysfunctional form, not ratified by the States. Image is from the National Archives of the United States.


The dysfunctional Article the First has nevertheless since been ratified by 12 States:

Virginia on November 3, 1789; New Jersey on November 20, 1789; Maryland on December 19, 1789; North Carolina on December 22, 1789; South Carolina on January 19, 1790; New Hampshire on January 25, 1790; New York on March 27, 1790; Rhode Island on June 15, 1790; Pennsylvania on September 21, 1791; Vermont on November 3, 1791 and Kentucky on June 24, 1792.

Challenging the Dysfunctional Article the First

On September 25th, 2014, the 225th birthday of the Bill of Rights, each of the States’ Attorneys General was notified that their respective states had ratified the incorrect Article the First amendment to the U.S. Constitution  The response of the Attorneys General ranged from no reply to that of North Carolina, replying:



After reviewing your materials, it appears that, if the United States House of Representatives or Senate made a mistake on approving a proposed amendment, the remedy lies with the United States Congress, not the North Carolina Assembly.[20]   

There have been numerous efforts to ratify Article the First, as transmitted to the States, including this book’s first edition. Such efforts, however, will be fruitless due to the fact that the 1789 Congress sent the dysfunctional Article the First to the states.[21] Furthermore, efforts to change the word "more" back to "less" in Article the First, which would cap Congressional Districts at 50,000 citizens, would require Congress to approve an entirely new amendment before it could be submitted to the states for ratification.  Additionally, there was a recent legal challenge seeking a U.S. Federal District Court order that Article the First be implemented in its functional form because it was ratified by the necessary 4/5ths of the States on May 10th, 1790:    

Article the First was agreed upon and settled and was not even before the Joint Conference Committee, during the process it was noticed that there was a possible flaw in the text of “Article the First” at Line 2 (the second of the three Lines, or “Clauses”). With inclusion of the negative word “less” at Line 2, the 40,000 ratio was actually a “ceiling” ratio when in fact at Line 2 the 40,000 number was intended to be a “floor” ratio, so that once the growth or population progressed so that the Nation was at Line 2, the ratio would be between 40,000 and 50,000, but not “less” than 40,000. These were smart men, and they quickly realized that there was a simple way to correct this hard to recognize flaw so that the intent of what was actually approved would be guaranteed. All that had to be done was to exchange the new word “more” for the existing word of “less” in Line 2.

Indeed, the Final Report made such a recommendation, and this is what was voted on and approved by Congress as the final form of text of “Article the First”. However, thereafter some Clerk misunderstood the Final Report and did not know what a penultimate was (and apparently then incorrectly read the “Article the First” text linearly as printed in the Broadside, and not as the three “Lines” or Clauses referred to by the Joint Committee and understood by Congress) and took it upon themselves to paraphrase what they thought the Final Report meant when referring to the Final Report in the House Journal, rather than simply memorialize the verbatim  text of the actual Final Report that was voted on and approved. [22]

In other words the "less" in red was supposed to be changed to more.

First line - 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, 
Penultimate Line - 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, 
Last line - 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.

Although I do not agree with the claim, petitioner Eugene LaVergne, Esq. correctly explains how a functional Article the First would have emerged in the Bill of Rights had the House adopted  the HR-S CC penultimate line language “in the last line but one” verbatim in its resolution, instead of the substituting its own verbiage, “in the last place.”  

The Lavergne v. John Bryson federal case, however, was dismissed by the U.S. 3rd District Court of Appeals in 2012, which never ruled on the discrepancy between the HR-S CC’s Final Report and the HR/Senate Bill of Rights Resolution.[23]  

ThirtyThousand.org has a different take on the how Congress could have transmitted the dysfunctional Article the First to the States for ratification. They maintain Article the First was “effectively sabotaged”:

As passed by the House, Article the First would have required there be at least one Representative for every 50,000 people at larger population levels. The Senate’s version required one Representative for every 60,000.  However, the would-be first amendment 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. [24]

What happened to Article First is a debate that has fulminated for 225 years. This sabotage charge, however, caught my attention prompting me to ask the age-old question: Who did it and why? 

If Article the First was indeed deliberately sabotaged, we can rule out the HR-S CC Senate members because the committee’s recommendations were read on the Senate floor by Senator Oliver Ellsworth, the report’s author, and correctly entered into the minutes.  The House, however, unlike the Senate, did not enter the HR-S CC report into its records.  The House Journals record only:

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 thin House : Whereupon, 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:  … 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." [25] 



The House Journals also report that all three HR-S CC members voted for the bungled resolution. Therefore, any “sabotage” could only be traceable to Madison, Sherman and Vining.  Additionally, Article the First originated as Madison’s second amendment proposed on the House floor on June 8th, 1789:

Secondly: That in article 2st. section 2, clause 3, these words be struck out, to wit, "The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made." And that in place thereof be inserted these words, to wit, "After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress, that the number shall never be less than nor more than but each state shall after the first enumeration, have at least two representatives; and prior thereto.”

Larry Sabato, Professor of Political Science at the University of Virginia, offers a motive when he correctly maintains that:

Madison recognized the need for some upper ceiling on the number of House members: “A certain number [of representatives] seems to be necessary to secure the benefits of free consultation and discussion…On the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude.” From Madison’s perspective, a 1,000-member House of Representatives, with about 300,000 constituents per representative, would seem reasonable. [26]

Therefore, Madison becomes our prime suspect because he did not want too large of a House. He was also in a position of power and if he had misgivings over capping Congressional Districts at the 50,000 citizen limit, an obscure change in a complex resolution would be a most effective way to kill the amendment quietly.  Additionally, it stands to reason that only Madison could have changed the verbiage and gotten away with the sabotage:

1. The “last place of the said first article” resolution originated in the House, and thus rules out the three HR-S CC’s Senators.
2.  Had a clerk or one of the two other HR-S CC members constructed the dysfunctional resolution, author James Madison would surely have caught the error.
3. Only Madison, due to his ethos as a framer of the Constitution of 1787, could create a resolution with an error in the construction of his own amendment, and be above suspicion that chicanery was afoot.

Another factor supports Madison’s role as saboteur: once it became common knowledge that Article the First had been submitted to the states with the wrong one word change, why didn’t Madison act to have the error corrected during his eight year tenure as a powerful member of the House of Representatives? The ideal time to have repaired the dysfunctional amendment was in 1792, when the 12th State, Kentucky, ratified the dysfunctional Article, and George Washington cast the first Presidential veto, denying Congress the opportunity, based on the 1790 census, to create Congressional Districts below the constitutional minimum of 30,000 citizens.[27] Finally, in 1811, when the Republican Party controlled both houses of Congress and the 1810 Census apportionment created Congressional Districts at just under the 40,000 maximum prescribed in Article the First, why didn’t now President James Madison champion his amendment?  

If Thirtythousand.org is correct and Article the First was effectively sabotaged by the House on September 24th 1789, then this finger points to the amendment’s author, James Madison.

The members of this 1789 Congress included two future U.S. Presidents, three former Presidents of Congress, nine Declaration of Independence signers, four Articles of Confederation signers, and 15 U.S. Constitution Signers. Moreover President George Washington, Chief Justice John Jay, Secretary of State and Declaration of Independence author Thomas Jefferson, Secretary of the Treasury and U.S. Constitution signer Alexander Hamilton, Attorney General and U.S. Constitution framer Edmund Randolph, and Secretary of War Henry Knox worked behind the scenes to constitutionally cap Congressional Districts at the maximum of 60,000 or 50,000 citizens. Madison’s possible sabotage aside, their debates and letters make clear that the framers of the Bill of Rights wanted the House of Representatives to remain answerable to people through the mechanism of small districts devoid of any undue influence by special interests.  Even President James Madison, during the War of 1812 that raged 25 years after Article the First was proposed, worked with a House whose congressional districts did not exceed 50,000 citizens.

The 11 Amendments found in the Bill of Rights are a national treasure.  Perhaps the current Congress might draw yet again upon the wisdom of the Congress of 1789, assembling a new Conference Committee to formulate a functional Article the First that caps Congressional districts somewhere between the 50,000 to 60,000 citizens originally proposed.  With the passage of such an article, the States can recommence the national debate on whether the only amendment not ratified in the 1789 Bill of Rights should become the 28th Amendment to the Constitution of 1787.





[1] This important check of the States over the U.S. Senate was overturned by the Progressive Republicans when they voted to send the Constitution’s Seventeenth Amendment to the States for ratification on May 13, 1912. 
[2] Constitution of 1787, Article II, Section 2, Clause 2
[3] See discussion, below.
[4] Ryan Grim and Sabrina Siddiqui, Call Time For Congress Shows How Fundraising Dominates Bleak Work Life, Huffington Post, 01/08/2013 - "The amount of time that members of Congress in both parties spend fundraising is widely known to take up an obscene portion of a typical day -- whether it's "call time" spent on the phone with potential donors, or in person at fundraisers in Washington or back home. Seeing it spelled out in black and white, however, can be a jarring experience for a new member, as related by some who attended the November orientation.” 
[5] The Editorial Board, Dark Money Helped Win the Senate, Sunday Review Editorial, New York Times, 11/8/2014 - "The next Senate was just elected on the greatest wave of secret, special-interest money ever raised in a congressional election. What are the chances that it will take action to reduce the influence of money in politics? Nil, of course." 
[6] House of Representatives Historian, The 1911 House Reapportionment, http://history.house.gov/Historical-Highlights/1901-1950/The-1911-House-reapportionment/, retrieved online 12/26/2014
[7] House of Representatives Historian, The 1911 House Reapportionment, http://history.house.gov/Historical-Highlights/1901-1950/The-1911-House-reapportionment/, retrieved online 12/26/2014
[8] United States Census Bureau, Reports and statistics from the 1890 census, Males of Voting Age table, page clxxviii.
[9] Chart is taken from a 1993 Congressional Report and shows the increase in the number of staff for each member of the House of Representatives since 1893.  Before 1893 the House members paid for their own staff.  Since the 1919 staff allotment of two, the House of Representatives has been fixed at 435 Representatives.  For more information on House staff and salaries please read  The Number of Congressional Staff Is the Real Problem by Daniel J. Mitchell
[10] Luke Rosiak,  Congressional staffers, public shortchanged by high turnover, low pay,  The Washington Times - Wednesday, June 6, 2012
[11] Alisa Chang, When Lobbyists Literally Write The Bill, National Public Radio, November 11, 2013
[12] Lee Fang, "Where Have All the Lobbyists Gone? On paper, the influence-peddling business is drying up. But lobbying money is flooding into Washington, DC, like never before. What’s going on?" The Nation, March 10-17, 2014.
[13] The First Federal Congress Project, Birth of the Nation: The First Federal Congress 1789-1791, Amendments to the Constitution, http://www.gwu.edu/~ffcp/exhibit/p7/, retrieved 12/23/2014.
[14] Journal of the First Session of the House of the Representatives: New-York, Printed by Thomas Greenleaf, 1789, pages 103-104.
[15] John Agg, History of Congress, exhibiting a classification of the proceedings of the Senate, and the House of Representatives, from March 4, 1789, to March 3, 1793, embracing the first term of the administration of General Washington, Philadelphia: Lea & Blanchard 1843, page 169
[16] Conference Committee Report." Creating the Bill of Rights. Ed. Kenneth R. Bowling and Helen E. Veit. Baltimore: The Johns Hopkins University Press, 1991. 49-50. Print. manuscript source: National Archives Original Manuscript, National Archives of the United States
[17] 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 145. 
[18] 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. 
[19] Thirty-thousand.org, Analysis of “Article the first...”, online publication, 2007 - http://www.thirty-thousand.org/pages/article1_analysis.htm, retrieved December 31, 2014.
[20] Karen A. Blum, North Carolina Special Deputy Attorney General, typed letter signed to Stanley Klos, dated October 9, 2014
[21] Article the First, in its dysfunctional form, remains pending before state lawmakers because like Article the Second, which was ratified in 1992, there is no time limitation on Article the First. Today, with the 12 state approval, the legislatures of 28 more states could ratify Article the First, for the amendment to become constitutional. 
[22] See Thomas H. LeDuc, “Connecticut and the First Ten Amendments to the Federal Constitution,” S. Doc. No. 75-96, at 2-3 (1937); see also David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995, at 108 & n.76 (1996) (noting that “over the course of three sessions” in Connecticut, “one house or the other approved most of the amendments but the other failed to concur”)
[23] Eugene Lavergne, Plaintiff-Appellant, v. John Bryson et al., Defendants-Appellees, U.S. Court Of Appeals Third Circuit, No. 12-1171: “This is a pro se challenge to the constitutionality of longstanding aspects of the process for apportioning the House of Representatives.  Plaintiff invoked the jurisdiction of the district court under 28 U.S.C.§ 2284(a).  On December 16, 2011, the district court entered a final judgment dismissing plaintiff’s suit.  A5-A6.  On January 17, 2012,plaintiff filed a timely notice of appeal from that judgment.” http://redistricting.lls.edu/files/NJ%20lavergne%2020120416%20exec.pdf
[24] Thirty-thousand.org, Analysis of “Article the first...”, online publication, 2007 - http://www.thirty-thousand.org/pages/article1_analysis.htm, retrieved December 31, 2014.
[25] Journal of the First Session of the House of the Representatives: 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, September 24th, 1789. 
[26] Larry Sabato, Expand the House of Representatives, Democracy Journal of Ideas, Issue #8, Spring 2008.
[27] On 5 April, 1792, the president decided to veto the Apportionment Act of 1792 (1 Stat. 253) and returned the bill to the House of Representatives with the two objections that "there is no one proportion or divisor which, applied to the respective numbers of the States will yield the number and allotment of representatives proposed by the Bill" and that "the Bill has allotted to eight of the States, more than one [representative] for thirty thousand." Congress, after receiving Washington's veto message, the first in U.S. history, threw out the original bill and decided, on 10 April 1792, to apportion representatives at "the ratio of one for every thirty-three thousand persons in the respective States".




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