Article The First - Background and History

Background and History

The original drive for this amendment was aimed at controlling the size of electoral districts. The Federalists attempted and largely succeeded in defusing the issue through their acquiescence to amendments concerning the matter beginning with the Massachusetts ratification convention. A version of Article the First was prominent among the initial twenty or so amendments that were defined by the various ratifying conventions—hence it is known as Article the First. The assurance that these amendments would be addressed in the First Congress was essential to the ratification of the new Constitutional government.

By January 9, 1788, five states of the nine necessary for ratification had approved the Constitution: Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. But the eventual outcome remained uncertain in pivotal states such as Massachusetts, New York, and Virginia. On February 6, with Federalists agreeing to recommend a list of amendments amounting to a bill of rights, Massachusetts ratified by a vote of 187 to 168... In the next 2 months, thanks largely to the efforts of Madison and Hamilton in their own states, Virginia and New York both ratified while adding their own amendments. The margin for the Federalists in both states, however, was extremely close. Hamilton figured that the majority of the people in New York actually opposed the Constitution, and it is probable that a majority of people in the entire country opposed it. Only the promise of amendments had ensured a Federalist victory.

The original object of broader representation was compromised in the ratifying conventions in order to set forth a more concise request for amendment and, perhaps at the same time, to weaken it. Article the First was requested even ahead of a demand for what ultimately became the Bill of Rights. The electorate were concerned about both the size of electoral districts and the term of office in their House of Representatives. They wanted these districts to remain small and the term of office to remain brief, to better enable them to quickly remove representatives that did not act in such a way as the people desired. The people of the nation were already averse to constituencies (representative districts) as large as thirty thousand and there was much controversy over the issue during the ratification process. What would become Article the First and other amendments were called for by James Madison in the House on June 8, 1789. Madison's proposed text of the amendment was as follows:

After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to, after which the proportion shall be so regulated by Congress, that the number shall be not less than, nor more than, but each state shall after the first enumeration, have at least two representatives.

What emerged as the final House version of the amendment was as follows (emphasis added):

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 "more" 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 less than one Representative for every fifty thousand persons

Such an amendment would have created a membership in today's House of some 6000 plus members. That text (with the word "less") stands as the official House version of the amendment before the alteration by the joint committee.

The Senate took up the measure on September 2, 1789 and were resolved as to the following:

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 representatives shall amount to two hundred, to which one representative shall be added for every subsequent increase of sixty thousand.

This language would have set the membership of today's House at 5,000.

There is much speculation as to why the amendment was altered as it was when neither the House or Senate versions of the amendment had any such a limitation.

By 1791, the legislatures of a sufficient number of states had ratified the last ten of the twelve proposed amendments, which became the Bill of Rights, but not the first two.

The second of the twelve amendments, which concerned Congressional compensation, was ratified more than two centuries later in 1992 and belatedly became the Twenty-seventh Amendment.

Article the First, however, was ratified by the legislatures of only the following eleven states—just shy of the number which would have been required in the late 18th century.

1. Virginia on November 3, 1789
2. New Jersey on November 20, 1789
3. Maryland on December 19, 1789
4. North Carolina on December 22, 1789
5. South Carolina on January 19, 1790
6. New Hampshire on January 25, 1790
7. New York on March 27, 1790
8. Rhode Island on June 15, 1790
9. Pennsylvania on September 21, 1791 (after rejecting it on March 10, 1790)
10. Vermont on November 3, 1791 and
11. Kentucky on June 24, 1792

Although the act, on the part of state legislatures, of "rejecting" a proposed constitutional amendment has no legal recognition, such action does have political implications—the Congressional Apportionment Amendment was postponed by lawmakers in Delaware on January 28, 1790.

No action is known to have occurred with regard to this particular Amendment by legislators in Georgia or Massachusetts.

According to the Supreme Court's 1939 ruling in Coleman v. Miller, because there is no deadline for its ratification, Article the First is technically still pending before state lawmakers.

Currently, there are 435 members of the House of Representatives and six non-voting Delegates from the District of Columbia and the territories, which do not possess statehood status. The figure of 435 is set by statute (2 U.S.C. 2a & 2b) and the allocation of seats among the 50 states is calculated by using "method of equal proportions". The present statutes would comply with the article's final language so long as there are at least 50,000 people in each Congressional district; as apportioned after the 2010 census, even the smallest district (the lone district of Wyoming) far exceeds this number. Therefore, ratification of this article today would have no impact on the present Congressional apportionment process, though it could impact future changes to the process.