The First First Amendment

The United States Constitution was became effective in March of 1789, but many wished that it contained an enumerated list of rights which limited federal power. By September of the same year, the new government drafted a series of amendments aiming to meet this goal. Ten amendments to the Constitution were ratified in 1791. Today, as was true then, these amendments are collectively referred to as “the Bill of Rights.”

The first of these amendments, understandably referred to as “the First Amendment,” is expansive. It restricts the government’s power to regulate speech, religion, the press, the right to peaceful assembly, and the right of the people to petition the government: “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.” It is often considered a very important amendment, and correctly so. However, that conclusion should not be drawn by its ordinal rank as the first Amendment of many.

Why not? Because it was not drafted to be first. In fact, Congress sent twelve proposed amendments to the states, but only the ten we know as the Bill of Rights garnered enough support to be ratified.

The first proposed amendment (often called “Article the First”), the text of which can be found here, set forth the number of Representatives given the increasing population of the fledgling nation. In part, it set a cap on the number of Representatives, to no more than one per every 50,000 citizens. A federal statute caps the House membership at 435 members — well below the failed amendment’s cap. Article the First would have put the number of Representatives at more than 6,000 (as of the 2010 census).

The second proposed amendment regulated Congressional pay raises: “No law varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” It received the support of seven of the first 15 states. But over the next two centuries (!), slowly but surely, other states ratified the amendment, which, in its drafting, lacked an expiration date for ratification. On May 18, 1992, the text was deemed ratified and added to the Constitution — as the Twenty-seventh Amendment.

As proposed, what we today refer to as the First Amendment should have been the Third.

Bonus fact: The actual, modern Third Amendment restricts the government’s ability to house soldiers in private homes: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” In its nearly 220 years as law, it has never been addressed directly by the Supreme Court. In fact, only one significant federal court case has confronted the Amendment’s meaning.

From the Archive: The First American Flag Was Very British Looking: Self-explanatory, but surprising given the context of the American push for independence.

Related: “Origins of the Bill of Rights” by Leonard W. Levy. Four and a half stars on 10 reviews.