Unratified Amendments

To date, the U.S. Constitution has 27 amendments. The first 10 are known as the Bill of Rights, then the rest generally protect and expand individual rights or outline how government works. Congress, however, has actually proposed 33 constitutional amendments to the states.

The Bill of Rights as proposed to the states containing 12 amendments, September 25, 1789. (National Archives Identifier 1408042)

Over the next couple of months we’ll be looking at the amendments that Congress proposed but were not ratified by a sufficient number of states (three-fourths of the states must pass an amendment for it to become law). The unratified amendments deal with representation in Congress, titles of nobility, slavery, child labor, equal rights, and DC voting rights. 

Today we’re taking a closer look at the earliest unratified amendment. In fact, it was the very first amendment ever proposed. Back in 1789, the first Congress drafted 12 amendments and sent them to the states for ratification. By December 15, 1791, enough states had ratified 3 through 12, which eventually became known as the Bill of Rights. Over 200 years later, the original second proposed amendment became the 27th Amendment in 1992. 

But what happened to the first?

The original first (proposed) amendment outlined how many representatives would be in the U.S. House of Representatives. It 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 that passed, we could have more than 6,000 representatives today compared to the 435 we currently have. 

Senate Revisions to House Proposed Amendments to the U.S. Constitution showing the original first and second proposed amendments, September 2-9, 1789. (National Archives Identifier 3535588)

The proposed amendment actually came within just one state of being ratified. But by December 15, 1791, when Virginia ratified amendments 2 through 12, it was still short, and action on it ceased. Since Congress did not put a ratification deadline on the proposed amendment, it could theoretically still be ratified. Since only 11 states have ratified it, however, it would need an additional 27 states to be adopted.

Since the amendment failed, Congress has been determining the size of the House of Representatives as they saw fit. In 1911, recognizing that the House of Representatives was expanding to unmanageable proportions, Congress decided to limit the number of members to 433. The number was fixed at 433 because it was the lowest number that would prevent any state from losing a member (as you can imagine, no state wanted to lose representation in Congress). 

Congress also allowed for the addition of one representative for each of the soon-to-be states of Arizona and New Mexico, which brought the total to 435. Exactly how those 435 seats would be divided among the states has been debated and altered, but the number remains at 435. The Reapportionment Act of 1929 reaffirmed the number.

14th Census by Clifford K. Berryman, Washington Evening Star, 12/18/1920. (National Archives Identifier 6011652)

The only time the number of representatives in the House changes is when a new state is admitted. When this happens, each new state gets one representative until the next census. This is what occurred when Hawaii and Alaska were admitted in 1959—the size of the House temporarily increased to 437 until the 1960 census.

So, unless the requisite states decide to pass the amendment, the House of Representatives will continue to be set at 435. 

Next we will look at the 1810 proposed amendment restricting U.S. citizens from receiving titles of nobility.

2 thoughts on “Unratified Amendments

  1. This is a good article. Gives an insight into how a well thought democracy works.
    For the states which didn’t pass the amendments, do they have to give a specific reason for not doing so? Or they are allowed to reject any amendments which they don’t like or deem acceptable?

    I love politics
    I hope to study political economics when I go to college!
    Love from Africa.

    1. States don’t have to give a reason for not passing a proposed amendment. Some states take no action and others will vote the amendment down and send in paperwork saying that the amendment did not pass in their state.

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