Research Notes

Article the First: Research Notes

Checks and Balances

The framers of the U.S. Constitution in 1787 incorporated lessons from earlier republics and state governments to create a system of checks and balances. This system ensures that executive, judicial, and bicameral legislative branches share power and influence over one another, preventing any single branch from dominating while fostering debate and compromise.

Two key citizen and state legislative checks on federal power, included in the original framework, were later nullified through different processes:

1. Article I, Section 3 of the Constitution mandated that state legislatures elect U.S. Senators, but this was repealed by the 17th Amendment, shifting senatorial elections to a popular vote.

2. Article the First proposed capping Congressional districts at 50,000 citizens to maintain close representation in the House, but it remains the only amendment from the 1789 Bill of Rights that was never ratified.

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

The Evolution of Article the First and Congressional Apportionment

Article the First, the original amendment proposed in the Bill of Rights, aimed to limit Congressional districts to 50,000 citizens, ensuring close representation in the House. Though not ratified, this principle guided House reapportionment after the first five censuses (1790–1830). However, by the 1840s, political shifts led to larger districts, with the Whigs and later Republicans abandoning the cap. By 1900, districts had grown to an average of 200,000 citizens.

In 1911, the House Apportionment Act modestly expanded the House to 433 members, adding two more for Arizona and New Mexico statehood. Despite concerns that larger districts undermined representation, Congress capped membership at 435 in the Permanent Apportionment Act of 1929, solidifying an enduring structure. Advocates like Republican Majority Leader John Q. Tilson supported the cap to prevent a perceived risk of an unwieldy House, while critics warned it surrendered Congressional power and ignored the spirit of Article the First.

The failure to reapportion after the 1920 Census marked a turning point, as urban and rural factions clashed over representation. Today, the fixed size of the House leaves districts averaging over 750,000 citizens, significantly reducing the connection between Representatives and their constituents.

Congressional District Growth Chart: 1790 - 2010

Congressional Reapportionment and Staff Growth

In 1941, Congress formalized the current formula for reapportioning House seats, maintaining the cap of 435 members established in 1929. This limit has persisted, except for a temporary increase to 437 members from 1959 to 1961, following the admission of Alaska and Hawaii as states.

Since then, the size of Congressional districts has ballooned, with each district now representing over 710,000 citizens—14 times the 50,000-person cap envisioned in Article the First. To address the demands of these larger districts, Congress has significantly expanded House staff. In 1910, the House employed 500 staffers; by 2016, that number had risen to over 12,000. This growth reflects the increasing workload required to service the needs of much larger constituencies, a far cry from the more personal and direct representation intended by the framers of the Constitution.

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
1979	18 + 4 part time = 22

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[1] Sources: "Chronology of House Clerk-Hire, 1893-1993," supra this report and U.S. Congress, House, Legislative Branch Appropriations Subcommittee, Legislative Branch Appropriation Bill: Fiscal Year 1994.  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  TheNumber of Congressional Staff Is the Real Problem by Daniel J. Mitchell -  Note:  In 1979 Congress allotted four part-time staff members to each member, which has counted as one full time staffer or 19 total for our calculations.

Growth of House Staff vs. Representation

Since 1910, the number of federally paid House staffers has risen dramatically from 500 for a population of 92 million to 12,300 for 308 million in 2010, reflecting a 2,420% increase. Meanwhile, the number of House Representatives grew modestly, from 394 to 435 members, a mere 9% increase.

In 2010, each Congressional district had 19 staffers and one Representative to serve 710,000 citizens. This equates to one public servant per 35,500 citizens, a ratio surprisingly close to the 1790s when one Representative served 37,700 citizens without staff. However, in modern districts, only 1 in 20 of these public servants is directly elected, diluting the accountability and connection between Representatives and their constituents. 

House of Representatives Staff	Totals
Committee staff	1,316
Personal Staff*	8,265
Leadership staff	202
Officers of the House Staff	463
1/2 of HR/Senate Joint committee staff	48
1/2 of General Accountability Office Staff	1,567
1/2 of Congressional Research Service Staff	329
1/2 of Congressional Budget Office Staff	124
Total HR Staff in 2011	12,314

Source: Brookings Institute, "Vital Statistics on Congress", August 2014 edition
* HR Personal paid Staff of 18 full-time plus 4 part time or 19 x 435 = 8,265

Today, 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]"

Furthermore, the vast size of Congressional districts forces Representatives to dedicate six to seven hours daily to soliciting donations and meeting with donors to fund their expensive, multi-million dollar re-election campaigns. A revealing 2013 report from the Huffington Post included a Democratic Congressional Campaign Committee slide outlining a "Model Daily Schedule" for incoming freshmen Representatives, highlighting this relentless focus on fundraising.

 The combination of inexperienced staff and elected House members devoting 70% of their time to fundraising has created a competency vacuum. This gap is increasingly filled by seasoned experts funded by lobbyists and special interests. According to a report by National Public Radio, an estimated 11,000 lobbyists are actively involved in drafting the very bills that pass through the House of Representatives.

"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]

Number of Political Lobbyists and spending 1998-2016 - Center for Responsive Politics

Lee Fang’s article, "Where Have All the Lobbyists Gone?", highlights the pervasive influence of special interests on Capitol Hill. The piece includes a detailed graphic mapping these connections and reveals an astounding $3.2 billion in annual lobbying expenditures, illustrating the significant financial power lobbyists wield in shaping legislative priorities.

Fair use Graphic: Vidhya Nagarajan for the Investigative Fund at The Nation Institute

"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]

This laissez-faire approach to citizenship, which began when the public accepted the cap of 435 Representatives, has seeped into the very fabric of the House itself. Representatives have effectively ceded the "power of the purse" to Political Action Committees (PACs), corporations, political parties, and other special interest groups. Every two years, these lobbyists pump millions of dollars into Congressional campaigns to sway the 540,000 eligible voters in each district, ensuring the election and re-election of candidates who align with their interests. 

The biblical warning from Revelation—"So then because thou art lukewarm, and neither cold nor hot, I will spue thee out of my mouth"—has found new relevance in the stark partisan divide that dominates Congress today. Large Congressional districts demand immense sums of campaign funding, with the majority of financial support coming from lobbyists and political parties. These contributions are typically "hot" or "cold," sharply aligned with specific legislative agendas, leaving little room for compromise or middle-ground solutions. As a result, the House has evolved into a polarized institution, shaped by the extremes of campaign capital rather than the collaborative spirit of its past.

The U.S. Constitution mandates that “All Bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” This sentence was inserted into the U.S. Constitution to ensure that the power of the purse be controlled by the legislative body most responsive to the people, the House of Representatives. The blame for the National Debt, originates in the House of Representatives, which is supposed to be the legislative branch of, for and governed by the people.

The Impact of Article the First on Congressional Representation

Under an Article the First House of Representatives (HR), the 11,000 lobbyists currently dominating legislative influence would effectively be replaced by 5,716 additional Representatives. This change would reduce the legislative team from 23,435 (a mix of public servants and lobbyists) to 18,151 public servants, 33% of whom would be elected Representatives. This shift would dramatically enhance direct citizen representation in Congress.

Smaller Districts, Stronger Democracy

With Congressional districts capped at 50,000 citizens:

• Direct Voter Engagement: Each district would have approximately 38,000 eligible voters (76% of the total population). During presidential election years, candidates would need to engage with about 20,900 likely voters (55%), and only 13,382 voters (36.4%) during midterm elections.
• Grassroots Candidates: This smaller voter pool would enable citizens over the age of 25 to mount viable grassroots campaigns, similar to those in small-town mayoral races, without the need for millions of dollars in campaign funding.
• Lower Campaign Costs: Candidates could connect with voters through direct outreach, negating the necessity for expensive media campaigns or large-scale advertising.

Eliminating the Influence of Lobbyists and Media

Smaller districts would neutralize the financial stranglehold of lobbyists and special interest groups by dramatically reducing the cost of campaigning. With districts capped at 50,000 citizens:

• Reduced Lobbyist Power: Campaigns would no longer rely on large contributions from lobbyists, effectively eliminating their role in influencing Representatives through financial leverage.
• Diminished Media Influence: Media endorsements and expensive ad buys, currently essential for reaching 740,000 citizens in oversized districts, would become irrelevant. Candidates could interact with voters directly, fostering a more personal and democratic electoral process.

A Return to Citizen-Led Representation

An Article the First Congress would restore the House of Representatives to its original vision of being closely tied to the people. By drastically reducing the size of districts, campaigns would become more accessible, cost-effective, and representative of local concerns. Lobbyists and media would lose their disproportionate influence, replaced by Representatives who are truly accountable to their constituents.

Under an Article the First House of Representatives (HR), the dominance of the two-party political system would be significantly diminished. With grassroots campaigns tailored to smaller Congressional districts, candidates would no longer need to depend on the extensive resources and endorsements of major parties to mount viable campaigns.

This shift would open the door for independent candidates and smaller political parties to re-emerge and thrive. It would also enable new parties to surpass the 5% HR membership threshold, a critical factor in shaping legislative influence and fostering political diversity. Historically, this dynamic birthed and sustained numerous influential parties, including the Democratic and Republican parties, during the 18th and 19th centuries. An Article the First Congress would revitalize this pluralistic political landscape, restoring competition and diversity to the American political system. 

The Impact of Article the First on Gerrymandering

An Article the First House of Representatives (HR), with Congressional districts capped at 50,000 citizens, would fundamentally disrupt the practice of gerrymandering, which has plagued the U.S. electoral system since the early 1790s. The small size of these districts would eliminate the feasibility of manipulative redistricting tactics like "cracking" and "packing," effectively addressing a long-standing challenge to fair representation.

Originally published on March 26, 1812 in the Boston Gazette, this Elkanah Tisdale caricature satirizes the bizarre shape of a state senatorial district as a dragon-like "monster." The new district was created by Massachusetts legislature to favor the Republican Party candidates of Governor Elbridge Gerry over the Federalists. The Federalist newspaper editors, however, likened the district’s shape to a salamander, and replaced “sala” with Governor Gerry's last name, coining the now familiar political term, Gerrymander.  - Image from the Library of Congress

Historical Roots and Evolution of Gerrymandering

Gerrymandering, the manipulation of district boundaries to benefit political parties, began with the redistricting efforts of the Federalist and Republican parties after the 1790 Census. Over time, it evolved to include racial gerrymandering, which diluted or concentrated minority voting power, and bipartisan gerrymandering, where opposing parties colluded to protect incumbents.

By the 20th century, courts began addressing these practices, establishing legal standards for fair redistricting. Notably, the Voting Rights Act of 1965 provided federal oversight to combat discriminatory tactics like cracking and packing. Despite these efforts, the geographic integrity of districts has continued to erode, exacerbated by increasing district populations and more sophisticated redistricting methods.

Challenges of Modern Gerrymandering

Modern congressional districts, with populations averaging over 700,000 citizens, provide ample opportunity for political manipulation. Current redistricting standards mandate equal population across districts "as nearly as is practicable," but even slight deviations must be justified by consistent state policies. Additionally, federal rules require vigilance against racial and ethnic vote dilution, yet large districts make it easier for politicians to exploit boundaries to their advantage.

How Article the First Solves Gerrymandering

Capping Congressional districts at 50,000 citizens under Article the First would make districts small and geographically compact, rendering traditional gerrymandering strategies ineffective:

• Cracking and Packing Eliminated: Small districts would lack the population size to dilute or concentrate voting blocs without running afoul of the Voting Rights Act of 1965.
• Geographic Compactness Restored: Smaller districts naturally align with local communities, maintaining geographic and cultural cohesion that larger districts disrupt.
• Increased Representation: With significantly more Representatives, the sheer volume of districts would prevent manipulation aimed at protecting incumbents or consolidating party power.

Legal and Practical Implications

An Article the First HR would preempt the need for court-ordered redistricting plans, independent commissions, or alternative voting systems currently relied upon to mitigate gerrymandering. By reducing the size of districts, it simplifies the redistricting process and aligns with the traditional redistricting principle of compactness, as highlighted in studies like A Two Hundred-Year Statistical History of the Gerrymander by Stephen Ansolabehere and Maxwell Palmer.

Conclusion

By capping Congressional districts at 50,000 citizens, Article the First offers a structural solution to a centuries-old problem. It ensures fairer representation, protects minority voting power, and restores trust in the electoral system by dismantling the gerrymandering practices that have long distorted American democracy.

Impact of an Article the First HR on the Electoral College

The implementation of an Article the First House of Representatives (HR), with Congressional districts capped at 50,000 citizens, would significantly reduce disparities in the Electoral College and align it more closely with the popular vote, making presidential elections more competitive and equitable.

The Challenges of the Current Electoral College System

Today’s Electoral College structure is shaped by Congressional apportionment fixed at 435 House members. This cap has created vast inequalities between states in terms of representation per citizen. For example, smaller states like Idaho benefit disproportionately from their Electoral College votes compared to larger states like California, where each vote represents far more citizens. These disparities have amplified concerns over the fairness of presidential elections, with critics arguing that the current system undervalues populous states and inflates the influence of smaller ones.

While some advocate abolishing the Electoral College in favor of a popular vote, this solution faces insurmountable challenges. A constitutional amendment would require not only congressional approval but also ratification by three-fourths of state legislatures—a near-impossible task given the political and geographical divides in the United States.

How Article the First Levels the Playing Field

Capping Congressional districts at 50,000 citizens, as envisioned by Article the First, would address Electoral College disparities without the need for a constitutional amendment. This change would expand the House of Representatives to reflect population growth, ensuring a closer alignment between the Electoral College and the popular vote. Here’s how it would work:

• Idaho Example: With a population of 1.6 million and a 50,000 citizen cap, Idaho would have 32 Congressional districts. Adding its two Senate votes, Idaho would receive 34 Electoral College votes. This equates to one Electoral College vote for every 47,000 citizens.
• California Example: With a population of 38.8 million and the same 50,000 citizen cap, California would have 760 Congressional districts. Adding its two Senate votes, California would receive 762 Electoral College votes. This equates to one Electoral College vote for every 50,000 citizens.

Under this system, the difference in representation between Idaho and California shrinks dramatically, with only a 3,000-citizen disparity per Electoral College vote.

Comparison to the Current System

The current 435-member cap exacerbates inequities:

• California has 53 Congressional districts and two Senate votes, resulting in 55 Electoral College votes. This equates to one vote for every 705,000 citizens.
• Idaho, with two Congressional districts and two Senate votes, has four Electoral College votes. This equates to one vote for every 400,000 citizens.

The current system thus gives smaller states like Idaho a disproportionately larger voice in presidential elections. Under Article the First, however, this imbalance would be corrected, creating a system where representation is more proportional to the population.

Restoring the Framers’ Vision

The more equitable Electoral College system achieved through an Article the First HR aligns with the vision of the framers of the Bill of Rights. The original architects of the Constitution intended for representation in the House—and by extension, the Electoral College—to closely reflect the population. By implementing the 50,000-citizen cap, the United States would return to this principle, ensuring a fairer and more democratic process for presidential elections.

Conclusion

An Article the First HR offers a practical, constitutionally viable solution to the disparities in the Electoral College. By reducing the size of Congressional districts, it would eliminate the disproportionate influence of smaller states, align the Electoral College more closely with the popular vote, and restore balance to presidential elections. This reform embodies the vision of the framers and addresses the most pressing challenges of the modern electoral system.

National Collegiate Honor’s Council Partners in the Park Independence Hall Class of 2017 students at Federal Hall National Historic Park with Ranger holding the 1789 Acts of Congress opened to the 12 Amendment Joint Resolution of Congress issued September 25th, 1789.  The only amendment in the "Bill of Rights" that was not ratified is Article the First, which is still pending before Congress. Cintly is holding an Arthur St. Clair signed Northwest Territory document, Imani is holding the First Bicameral Congressional Act establishing the U.S. Department of State and Rachael is holding a 1788 John Jay letter sent to the Governor of Connecticut, Samuel Huntington,  transmitting a treaty with France. – Primary Sources courtesy of Historic.us

Is a Constitutional Amendment Required to Create an Article the First HR?

No, a constitutional amendment is not required to implement an Article the First House of Representatives (HR). The current cap on House membership at 435 representatives is established by the Permanent Apportionment Act of 1929, which is a federal statute rather than a constitutional provision. Congress has the authority to repeal or amend this law through a simple majority vote in both the House and Senate.

Under the Constitution, Congress retains the power to regulate the size of the House of Representatives. Article I, Section 2, Clause 3 of the Constitution states only that there must be at least one representative per state and that the number of representatives “shall not exceed one for every thirty Thousand.” Beyond these guidelines, the size of the House is determined by federal law, leaving Congress free to adjust it as needed to reflect population growth or other considerations.

The Path Forward

Implementing an Article the First HR, with Congressional districts capped at 50,000 citizens, would require Congress to:

1. Repeal the Permanent Apportionment Act of 1929: This would eliminate the current fixed cap of 435 members.
2. Enact a New Apportionment Law: This new law would establish Congressional districts with a maximum population of 50,000 citizens, as originally proposed in the unratified Article the First amendment.

Practical Implications

• No Need for State Ratification: Unlike a constitutional amendment, which requires ratification by three-fourths of state legislatures, changing the apportionment law is entirely within the purview of Congress.
• Return to Foundational Principles: By capping districts at 50,000 citizens, Congress would align representation more closely with the original vision of the framers, ensuring that the House remains a truly representative body of the people.

In short, the implementation of an Article the First HR is both legally feasible and procedurally straightforward. With sufficient political will, Congress could restore this critical element of representative democracy without the lengthy and uncertain process of amending the Constitution.

Why Wasn’t Article the First Ratified?

On September 25, 1789, the First Bicameral Congress of the United States proposed 12 amendments to the Constitution of 1787, intended to address concerns raised during the ratification process. Among them was Article the First, designed to regulate the size of Congressional districts by capping their populations. However, this amendment failed to secure ratification, leaving it as the only proposed amendment in the Bill of Rights never to become law.

A Crowded Agenda of Amendments

The path to proposing the Bill of Rights was arduous. During the ratification debates, the states had submitted more than 200 amendment proposals, reflecting a wide variety of priorities. When repetitious suggestions were eliminated, over 100 distinct proposals remained. Many sought to restructure the balance of power between the federal government and the states or to protect individual rights.

To address these concerns, the House of Representatives drafted and passed 17 articles on August 24, 1789. These included Article the First, aimed at limiting Congressional districts to a maximum size of 50,000 citizens, as follows:

Text of Article the First (House Version):
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.

Senate Adjustments

Between September 4 and 9, 1789, the Senate debated and amended the proposed articles. Their version of Article the First introduced a higher population cap, limiting Congressional districts to a maximum size of 60,000 citizens:

Text of Article the First (Senate Version):
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.

The House-Senate Compromise

A House-Senate Conference Committee was convened to reconcile differences between the versions of the amendments. The finalized version of Article the First, as submitted to the states, was intended to establish a maximum population cap of 50,000 citizens per Congressional district after the number of Representatives reached 200.

A Proposal Lost in Translation

Unfortunately, errors in drafting and ambiguous language led to confusion about the amendment's functionality. The final version of Article the First contained contradictory math, which would have made its implementation unworkable. For example, for certain population ranges, the required maximum number of Representatives was lower than the required minimum. This error, coupled with the complexity of the language, hindered ratification.

A Complicated Ratification Process

Out of the 12 proposed amendments, Article the First was sent to the state legislatures alongside the others. However:

• Many states prioritized amendments focused on individual rights over structural changes to Congressional apportionment.
• By the time the Bill of Rights was ratified in 1791, Article the First had not received enough support for adoption.

Why It Still Matters

Despite its failure, Article the First reflects the framers' intention to ensure closer representation for the populace in the House of Representatives. While the population cap envisioned by Article the First was adhered to during the early 19th century, Congress eventually abandoned the principle, capping House membership at 435 members in 1929. Today, Congressional districts average over 710,000 citizens, a far cry from the smaller, more accountable districts envisioned in 1789.

The failure to ratify Article the First underscores both the challenges of constitutional amendment and the ongoing tension between representation and efficiency in governance. Revisiting this unratified amendment offers a pathway to restore more equitable representation in the House, ensuring that it remains a body truly reflective of the people.

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

Images are from the Records of the U.S. Senate National Archives

The Conference Committee and the Path to Article the First

To reconcile differences between the House and Senate versions of the proposed amendments, a House-Senate Conference Committee (HR-S CC) was convened. This committee, comprised of notable figures such as James Madison, Roger Sherman, John Vining, Oliver Ellsworth, Charles Carroll, and William Paterson, sought to finalize the amendments, including Article the First, which proposed a cap on the population of Congressional districts.

The Recommendations

On September 24, 1789, the HR-S CC submitted its recommendations. Senator Oliver Ellsworth read the original report, which included a critical proposed change to Article the First:

Amendment to the First Article:
“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.”

This change intended to clarify Article the First, ensuring the population cap for Congressional districts would be flexible enough to accommodate population growth.

The Divergence

The HR-S CC recommendations were reviewed by both chambers, and the House subsequently drafted its own resolution, ostensibly adopting the committee’s recommendations. However, a significant error crept into the process.

The House resolution substituted the HR-S CC’s language “in the last line but one” with “in the last place of the said first article.” This subtle change inadvertently introduced ambiguity into the final language of Article the First, making its implementation mathematically inconsistent and functionally impractical. The alteration rendered the amendment effectively dysfunctional, as it created contradictory thresholds for Congressional apportionment.

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

The Senate’s Approval

Despite this error, the Senate approved the House resolution on September 25, 1789, sending the flawed Article the First along with 11 other proposed amendments to the states for ratification.

A Missed Opportunity for Correction

The House’s departure from the HR-S CC language, coupled with the Senate’s approval of the flawed resolution, sealed the fate of Article the First. This oversight likely went unnoticed due to the complexities of the amendment’s language and the rush to finalize the Bill of Rights. The result was an amendment that, while innovative in its intent, was unworkable in its transmitted form.

Significance of the Error

The failure to adhere to the precise language of the HR-S CC recommendations highlights the challenges of early legislative processes. This incident underscores the importance of clarity and precision in drafting constitutional amendments, as even small deviations can have far-reaching consequences.

Despite its flawed ratification process, Article the First remains a compelling reminder of the framers’ intent to maintain direct and equitable representation in the House of Representatives. Its principles still resonate in debates over the size and structure of Congressional districts today.

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.

Transmitting 12 Amendments to the States

On September 24, 1789, the House of Representatives passed a resolution to formally engross and transmit the Bill of Rights—12 proposed constitutional amendments—to the states for ratification. This task was assigned to President George Washington, who was directed to send the amendments to the 11 ratified states, as well as Rhode Island and North Carolina, even though these two had yet to ratify the Constitution of 1787. The Senate approved the resolution on September 26, 1789, and the Bill of Rights was prepared for distribution.

The Clerk’s Role and a Fatal Divergence

The Clerk, following standard procedure, engrossed the amendments according to the exact language of the House/Senate Bill of Rights Resolution. However, this language diverged from the earlier House-Senate Conference Committee (HR-S CC) report, which had proposed critical adjustments to clarify and make Article the First mathematically and practically viable.

The failure to incorporate the HR-S CC’s recommended language, compounded by the procedural rush to finalize the amendments, effectively doomed Article the First. Despite its lofty intent, this amendment faced several flaws in its transmitted form that rendered it both inconsistent and impractical.

Analysis of the Fatal Flaws in Article the First

A 2007 analysis identified three key reasons why Article the First, as transmitted, was effectively "dead on arrival":

1. Redundant Maximum:
   The proposed amendment introduced a new formula for determining the maximum size of the House of Representatives, which was unnecessary. The Constitution of 1787 already provided a clear method for this calculation—"shall not exceed one for every thirty Thousand." The new maximum of one representative per 50,000 citizens would only take effect once the population reached 8 million. At that point, a discontinuous reduction in the maximum size of the House would have been required, creating an abrupt and problematic shift.

2. Irresolvable Math Error:
   The language of the transmitted Article the First introduced a mathematical contradiction. For certain population ranges, the required maximum number of representatives would fall below the required minimum, creating an irreconcilable conflict that could not be practically implemented.

3. Failure to Maintain a Proportionate Minimum:
   While the amendment defined a proportionate minimum size for the House as long as the population was below 8 million, it abandoned this proportionality beyond that threshold. This oversight contradicted the original intent of Article the First, which was to ensure a balanced and proportionate House size as the nation’s population grew. By failing to provide clear minimum standards for higher populations, the amendment created ambiguity and undermined its stated purpose.

The Legacy of a Flawed Article

These critical issues, combined with the one-word discrepancy introduced during the legislative process, meant that Article the First was effectively unusable from the outset. Its failure serves as a stark reminder of how procedural oversight and rushed legislative drafting can derail even the most well-intentioned efforts at reform.

While the Bill of Rights succeeded in securing many fundamental freedoms, the fate of Article the First remains a cautionary tale in legislative history—a reminder that clarity and precision are essential when crafting amendments that shape the future of a nation.

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 amendments 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                                        

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 25^th, 2014, the 225^th 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]   

Efforts and Challenges Surrounding the Ratification of Article the First

Numerous efforts have been made to revive and ratify Article the First as originally transmitted to the states. These attempts, however, are doomed to failure because the 1789 Congress inadvertently sent a dysfunctional version of the amendment. To correct the amendment’s inherent flaws—such as the mathematical contradiction and ambiguities—a complete reintroduction and approval of a new amendment by Congress would be necessary before ratification by the states could proceed.

The LaVergne Legal Challenge: A Case for Implementation

In a recent legal effort, petitioner Eugene LaVergne, Esq. argued before a U.S. Federal District Court that Article the First should be implemented in its functional form, as it had been ratified by 12 states by May 10, 1790—meeting the 4/5ths threshold for ratification under early constitutional conventions. According to LaVergne, the amendment’s textual flaws arose from a misunderstanding during the legislative process.

Specifically, LaVergne asserted that the word “less” in the amendment’s second clause was mistakenly included. Instead, the clause was intended to describe a minimum floor of representation at 40,000 citizens per district, not a maximum ceiling. He noted that the Final Report of the House-Senate Conference Committee (HR-S CC) correctly recommended changing the word “less” to “more,” and this revision was purportedly approved by Congress. However, a clerk, misunderstanding the meaning of “penultimate” and the intended structure of the amendment, inserted flawed language into the final transmitted version.

The language discrepancy can be summarized as follows:

• First Clause: "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 Clause: "...after which the proportion shall be so regulated by Congress, that there shall not be 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 Clause: "...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 inclusion of the word "less" instead of "more" in the penultimate clause created a mathematical inconsistency, rendering the amendment unenforceable.

Judicial Rejection of the Challenge

The U.S. 3rd District Court of Appeals dismissed the case, LaVergne v. John Bryson, in 2012 without addressing the discrepancy between the HR-S CC report and the House/Senate Bill of Rights Resolution. The court did not rule on whether the transmitted version of Article the First reflected congressional intent or on the claims of procedural error during the legislative process.

ThirtyThousand.org’s Perspective: A Case for Sabotage

Advocacy group ThirtyThousand.org takes a more pointed view, suggesting that Article the First was “effectively sabotaged” during the legislative process. The group contends that a minor last-minute modification—introduced by the joint House-Senate Conference Committee—subverted the amendment’s purpose and introduced its mathematical defect. This flaw, they argue, rendered the amendment unenforceable and undermined its intent to maintain small and proportionate districts.

Their analysis highlights key discrepancies between the House and Senate versions of Article the First:

• The House’s version mandated a minimum ratio of one representative per 50,000 people, even at larger population levels.
• The Senate’s version set a slightly larger minimum ratio of one representative per 60,000 people.

The final transmitted amendment, however, introduced a mathematical contradiction that made it both confusing and impractical. Despite this defect, Article the First was ratified by every state except Delaware. ThirtyThousand.org argues that, if the amendment had been transmitted in its original form, it could have been successfully implemented, potentially resulting in 6,000 Representatives in today’s House.

Who is Responsible for the Flaw?

The question of whether Article the First was deliberately sabotaged or the result of clerical error has sparked debate for over two centuries. Some evidence suggests the flaw originated in the House of Representatives, which substituted its own language—"in the last place of the said first article"—for the HR-S CC’s more precise language, "in the last line but one."

Key observations:

1. The HR-S CC Senate members, including Senator Oliver Ellsworth, correctly entered their report into the Senate minutes, ruling out deliberate action on their part.
2. The House, unlike the Senate, did not record the HR-S CC’s report verbatim. This oversight allowed discrepancies to pass unnoticed.
3. The error was approved by all three HR-S CC members, including James Madison, a principal architect of the Bill of Rights.

Madison’s involvement raises suspicions. As the amendment’s author and a prominent constitutional framer, Madison had the expertise and authority to introduce subtle changes. His reluctance to champion Article the First later in his career, despite ample opportunity during his tenure in Congress and as President, adds weight to the theory that Madison may have intentionally undermined the amendment to avoid a House that grew too large for practical governance.

Conclusion: A Legacy of Error and Inaction

Efforts to ratify or implement Article the First in its current form are hampered by its structural flaws and the historical confusion surrounding its drafting and transmission. While groups like ThirtyThousand.org advocate for its revival or reinterpretation, the amendment’s fate serves as a cautionary tale of how procedural missteps and unintended changes can derail even the most well-intentioned reforms.

Ultimately, fixing Article the First to reflect its original purpose—capping congressional districts at 50,000 citizens—would require new legislation. This would necessitate bipartisan support in Congress, a daunting challenge in today’s polarized political climate. Yet the principle behind the amendment—ensuring proportional representation and citizen-driven governance—remains as relevant today as it was in 1789.

The Mystery of Article the First: A Case for Sabotage

The legislative history of Article the First suggests a deliberate or negligent effort to derail its purpose. The House Journals confirm that all three members of the House-Senate Conference Committee (HR-S CC)—James Madison, Roger Sherman, and John Vining—voted for the final resolution, which included a flawed version of the amendment. Given Madison’s prominent role and influence, he emerges as the most likely figure behind this bungling.

Madison’s Amendment and a Possible Motive

Madison originally proposed Article the First on the House floor on June 8, 1789, as part of his comprehensive amendments to the Constitution. His version aimed to ensure proportional representation by limiting Congressional Districts to 30,000–50,000 citizens:

“After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to [a specified limit]; after which the proportion shall be so regulated by Congress, that the number shall never be less than nor more than [a defined range], but each state shall after the first enumeration, have at least two representatives.”

This language reflects Madison’s intent to balance representation with practicality. However, political scientist Larry Sabato notes Madison’s reservations about allowing the House of Representatives to grow too large. Sabato explains:

“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 House of 1,000 members, with districts containing 300,000 constituents each, might strike a better balance. This view could have motivated him to quietly insert language into the final version of Article the First to undermine its strict 50,000-citizen cap.

Evidence of Madison’s Influence

Several factors point to Madison as the probable architect of the amendment’s failure:

1. The Resolution Originated in the House: The language change—substituting "in the last place" for "in the last line but one"—came from the House of Representatives, not the Senate, ruling out Senate members on the HR-S CC.

2. Madison’s Expertise: Madison, as a principal framer of the Constitution and author of Article the First, would have recognized the error in the amendment’s construction. His failure to address it suggests intent rather than oversight.

3. Position and Credibility: Madison’s role as a constitutional authority would have shielded him from suspicion, allowing him to introduce changes without raising alarms.

Missed Opportunities to Correct the Error

The flawed version of Article the First was transmitted to the states without correction. If Madison had not intended to sabotage the amendment, he had ample opportunities to address its issues:

• 1792: When Kentucky became the 12th state to ratify Article the First, Madison, as a powerful member of the House, could have rectified the error. Instead, he allowed the amendment to languish.

• During Washington’s First Veto: In 1792, President George Washington vetoed an apportionment bill that violated constitutional guidelines for district sizes. This moment could have prompted a reconsideration of Article the First, but Madison remained silent.

• 1811: As President, Madison could have championed his amendment during reapportionment following the 1810 Census. By then, Congressional Districts were nearing the 40,000-citizen maximum prescribed in Article the First. Madison’s failure to act raises questions about his commitment to the amendment’s success.

Was Sabotage Intentional?

Advocacy group ThirtyThousand.org argues that Article the First was “effectively sabotaged” by a subtle last-minute modification. This change introduced a mathematical inconsistency that rendered the amendment unenforceable. Their claim highlights two key points:

1. The House and Senate versions of the amendment diverged in their representation caps (50,000 vs. 60,000 citizens), and the HR-S CC’s revision complicated matters further.

2. The flawed language likely went unnoticed at the time but later undermined ratification efforts and practical implementation.

While Madison’s direct involvement remains speculative, his reluctance to address the amendment’s flaws suggests either deliberate sabotage or a quiet decision to let it fail.

Conclusion: A Legacy of Missed Opportunities

The failure of Article the First reflects both the challenges of early legislative processes and the influence of individual actors like Madison. The amendment’s original intent—to ensure proportional representation in the House—was clear. Yet its flawed transmission and subsequent neglect doomed it to irrelevance.

The irony lies in the caliber of those involved. The 1789 Congress included luminaries like George Washington, James Madison, Alexander Hamilton, and Thomas Jefferson, all of whom championed checks and balances to prevent undue concentration of power. Their vision for small, citizen-driven districts remains a cornerstone of democratic governance, even as Article the First stands as a reminder of how procedural missteps and political maneuvering can thwart such ideals.

[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 24^th, 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".

Edited: Open AI. (2024). ChatGPT [Large language model] - https://chatgpt.com