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The Original Bill of Rights Had 12 Amendments

How We Nearly Ended Up with 6,000 Members of Congress


2008 Republican National Convention: Day 2
Alex Wong/Getty Images News/Getty Images
Updated June 13, 2014
If you are fortunate enough to visit the Rotunda for the Charters of Freedom at the National Archives in Washington, DC, you can view the original government copy of the Bill of Rights as sent to the then 11 states for ratification in 1789. What might surprise you is that the original Bill of Rights contains 12 - not 10 -- amendments.

What is the Bill of Rights?

The "Bill of Rights" is actually the popular name for a joint resolution passed by the first U.S. Congress on September 25, 1789. The resolution proposed the first set of amendments to the Constitution. Then as now, the process of amending the Constitution required that the resolution be "ratified" or approved by at least three quarters the states. Unlike the 10 amendments we know and cherish today as the Bill of Rights, the resolution sent to the states for ratification in 1789 proposed 12 amendments.

When the votes of the 11 states were finally counted on December 15, 1791, only the last 10 of the 12 amendments had been ratified. Thus, the original third amendment, establishing freedom of speech, press, assembly, petition, and the right to a fair and speedy trial became today's First Amendment.

6,000 Members of Congress?

Rather than establishing rights and freedoms, the first amendment as voted on by the states in the original Bill of Rights proposed a ratio by which to determine the number of people to be represented by each member of the House of Representatives. The original first amendment (not ratified) read:
"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 two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons."
Had the amendment been ratified, the number of members of the House of Representatives could by now be over 6,000, compared to the present 435. As apportioned by the 2000 Census, each member of the House currently represents about 650,000 people.

The Original Second Amendment: Money, not Guns

The original second amendment as voted on, but rejected by the states in 1789, addressed congressional pay, rather than the right of the people to possess firearms. The original second amendment (not ratified) read:
"No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."
Though not ratified at the time, the original second amendment finally made its way into the Constitution in 1992, ratified as the 27th Amendment, a full 203 years after it was first proposed.

And So the Third Became the First

As a result of the failure of the states to ratify the original first and second amendments in 1791, the original third amendment became a part of the Constitution as the First Amendment we cherish today.

"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."

Delegates to the Constitutional Convention in 1787 considered but defeated a proposal to include a bill of rights in the initial version of the Constitution. This resulted in heated debate during the ratification process.

Federalists, who supported the Constitution as written, felt a bill of rights was not needed because the Constitution intentionally limited the powers of the federal government to interfere with the rights of the states, most of which had already adopted bills of rights. Anti-Federalists, who opposed the Constitution, supported a stronger federal government, which they believed could not exist or function without a clearly established list of rights guaranteed to the people. (See: The Federalist Papers)

Some of the states hesitated to ratify the Constitution without a bill of rights. During the ratification process, the people and the state legislatures called for the first Congress serving under the new Constitution in 1789 to consider and put forward a bill of rights.

According to the National Archives, the then 11 states began the process of ratifying the Bill of Rights by holding a referendum, asking its voters to approve or reject each of the 12 proposed amendments. Ratification of any amendment by at least three quarters of the states meant acceptance of that amendment. Six weeks after receiving the Bill of Rights resolution, North Carolina ratified the Constitution. (North Carolina had resisted ratifying the Constitution because it did not guarantee individual rights.) During this process Vermont became the first state to join the Union after the Constitution was ratified, and Rhode Island (the lone holdout) also joined. Each state tallied its votes and forwarded the results to Congress.

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