What Happened to the Missing Two Articles of the Bill of Rights?

Feb 5, 2019 · 10 min read
Photo by Anthony Garand on Unsplash

There were actually twelve original articles in the first draft of the Bill of Rights, and only articles three through twelve were ratified, though they now represent amendments one through ten in the American constitution. What were articles one and two of the original Bill of Rights? And what happened to them? Interestingly, one of the two became an amendment to the Constitution much later.

Here is Article II from original Bill of Rights:

Article II — On Congressional pay. No law vary-ing the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.

This provided protection against congressional pay hikes, preventing a sitting Congress from giving itself a raise. Any increase in pay would not go into effect until the following House election. This proposal was resurrected 203 years later when it became the Twenty- Seventh Amendment to the Constitution in 1992!

The founding fathers predicted conflicts and provided a statutory basis to address the situation — such foresight! That means that eleven of those original twelve have now been passed, but what about the last remaining one?

Article I — Providing for a truly representative republican democracy. 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 be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.

The explosive growth of America’s population outstripped these visionary representation numbers. This was followed on by the abolition of slavery and women’s suffrage, which changed the demographic electoral equations dramatically. Nonetheless, the founding fathers expected the House of Representatives to continue to grow with the growth of the electorate. For over one hundred years the central government followed this formula, but then they stopped. Inexplicably, for a century the House of Representatives has been stuck at a little more than 400 individuals!

The House of Representatives was meant to be the People’s House. Despite popular belief, technically, America is not a democracy, but rather a representative republic. That means that the representatives, who are democratically elected over set periods, do the business of government as representative proxies.

At the beginning of the republic, to get each of the states to sign on to the new Constitution, each was given two votes in the Senate no matter the size of their populations, thereby making sure that each state was equal in that representative body. However, for America to be a true representative republic there had to be a legislative body that was based upon population. That body became the House of Representatives.

The framers of the Constitution and the Bill of Rights intended that the total population of Congressional districts should never exceed 50,000 to 60,000. This fact cannot even be debated as the text of the original article demonstrates that some threshold was on the mind of the Constitutional Convention, even if that threshold was never agreed on. Currently, the average population size of the districts is 700,000! That is a more than ten- fold deviation from a standard that was nearly cemented into the constitutional framework of the nation at its founding.

Clearly, the founding fathers recognized this ratio as vital to a functioning representative republic. George Washington agreed that the original representation proposed in the Constitutional Convention (one representative for every 40,000) was inadequate and supported an alteration to reduce that number to 30,000. This was the only time that Washington expressed an opinion on any of the actual issues debated during the convention.

In Federalist Paper №55, James Madison addressed the claims that a 50,000 to 1 representation ratio was insufficient by writing that the major inadequacies would be cured over time by virtue of decennial reapportionment based upon the census. Madison acknowledged that there were some inadequacies at the House level in the original Constitution, but that every ten years the census would allow for adjustments. Madison expected these inadequacies eventually to go away, not to be set in stone by the central government.

Instead, adding to this degradation of representation, in the early twentieth century, the United States government abandoned the principle of proportionally equitable representation. Prior to the twentieth century, the number of representatives increased every decade as more states joined the union and the population increased. However, the twentieth century brought something different.

In 1911, Public Law 62- 5 raised the membership of the House of Representatives to 433 with a provision to add one permanent seat each upon the admissions of Arizona and New Mexico as states. As provided, membership increased to 435 in 1912. However, in 1921, Congress failed to reapportion the House membership as required by the United States Constitution after the decennial census. Then, in 1929, Congress passed the Reapportionment Act of 1929, which capped the size of the House at 435. The count has been stuck at this 435 number ever since.

Freezing the count has led to inadequate representation. This inadequate representation has only become more inadequate as time as gone on. Two states have been added, since the Reapportionment Act of 1929 and yet the count stayed at 435! This arbitrary ceiling not only ignored new states, but also ignores the fact that the nation’s population has increased rapidly. Despite the population increase, the membership of the House of Representatives has stayed static for a century. If Washington, DC no longer seems to represent the will of the people. It is because it does not.

The population increase that has occurred since the early twentieth century warrants change in the size of the House, but it is not the only reason nor does that increase represent the biggest jump in voters. The actual number of eligible voters doubled immediately with women receiving the vote in 1920. This is about the same time that the number of representatives was frozen at 435. Certainly, this freezing seems to be a purposeful attempt to dilute representation. After all, doubling the number of voters should justify doubling the number of representatives to something approaching one thousand seats. If not that number, then a lesser increase would still be warranted.

The current size of 435 seats means one member represents on average about 650,000 people; but exact representation per member varies by state. Four states — Wyoming, Vermont, Alaska, and North Dakota — have populations smaller than the average for a single district. This one situation, that these low population states get better per capita representation in the House of Representatives than high population states, should be enough to call for a revamp of the size of the House of Representatives. The Senate’s two seat per state configuration serves the small states, but the House is where the populous states are supposed to have more representation, not less.

Many would argue that the current size of the House is one of practicality. They would argue that increasing the number of members would create chaos and nothing would ever be done in Congress. Libertarian- Socialism would argue that there is not much positive and useful being done right now, so how can the status quo be advocated?

The reforms libertarian- socialism advocates in American society and in the political system might seem quite dramatic. However, these reforms are based on the original precepts of the nation. It is quite illustrative of how far America has strayed from the original ideas of the founders. Arguing for a return to these principles sounds so revolutionary to many citizens, when they first hear of this proposed amendment to the Constitution, but it is a founding ideal.

Clearly, America should increase the size of the House; there is no question about that. It is only a matter of by how much to increase it. The objection that more than 435 would be impossible to manage is no longer tenable in the twenty- first century. Technology has advanced to the point that video conferencing is a viable option. Additionally, the amount of Congressional staff each representative has is a clue to what the true size of the House of Representatives should be. If these non- elected staffers were limited, it would free up quite a bit of space for real representatives of the people as well as the money to pay them.

Other democracies seem to get by with more than 435 members without chaos ensuing. The House of Commons in Britain, which was one of the first people’s bodies in the Western world, has more than six hundred members. Another great western democracy, Germany, has more than six hundred members in its Bundestag. These parliamentary bodies serve populations that are one- fifth the size of the American population. If Americans had similar representation, there would be three thousand members in the House. Without question, the United States has fallen behind the curve of representative democracy.

Libertarian- Socialism advocates an initial doubling of the size of the House of Representatives. This would be achieved by bisecting all current districts. Libertarian-Socialism further advocates increasing the House membership by 50 percent in five- year intervals leading to next census. This would still leave the United States far short of the original vision of its founders. A case could be made for continuing the increase the size until a one to fifty thousand ratio is achieved. Of course, by finally ratifying the last of the original articles that made up the Bill of Rights, this would be constitutionally mandated to happen.

Forcing a smaller ratio of people-to-representative will lead to more than two thousand House members. That is a big number, but the United States would thus begin to immunize the House of Representatives from the corruptions of money. With so many votes to swing a majority, it would become ever more impractical to influence the House via lobbyist money.

There would also be an increase in the number of voices that could be heard on the national stage. America has stagnated. The solutions to the nation’s problems seem insoluble only because of the narrowness of the vision of those in politics today. This narrow vision is directly related to the freezing of the House that has disenfranchised the individual voter.

An increase in the size of the House of Representatives is also an organic obstacle to gerrymandering. Gerrymandering leads to extreme views at the political representative level. Extreme views are required to win the gerrymandered districts. The smaller districts of an expanded House are harder to gerrymander. The smaller districts make irregular shapes an exception rather than the rule.

Indeed, for there to be an electable third party, or even a fourth party, this House expansion must happen. The House increase would begin the process of giving new political voices an opportunity to be heard. This is why the duopoly of Democrats and Republicans will fight tooth and nail for the status quo.

Additionally, the size of the House of Representatives drives the size of the Electoral College. The Electoral College size is determined by the number of seats in the House of Representatives and the number of seats in the Senate plus three extras for Washington DC. That puts 538 seats in the Electoral College. Consequently, with many more seats in the House of Representatives the nation would have smaller precincts in the Electoral College as well. The smaller precincts also make it more difficult to “game” elections.

Smaller precincts in the Electoral College give the people better representation due to the granularity that is provided. Of course, the smaller precincts are not going to necessarily bring about a fix to the popular vote not matching the Electoral College outcome. This popular vote disconnect is an anomaly that happened only once in the nineteenth century. Oddly, the twenty- first century has seen it happen multiple times, in the elections of George W. Bush and Donald Trump.

These divergences of the popular vote from the Electoral College certainly smell like election tampering. Technological changes are facilitating the gaming of the Electoral College. More and smaller precincts make this gaming more difficult. Conversely, the elimination of the Electoral College could make it easier to game the presidential election by making it completely unauditable. The smaller precincts allow for auditing the presidential election.

In the beginning, it made sense for each elector to go to DC representing the constituents from the home precinct. Travel and communication were not what they are today. Sending a responsible individual to report counts from particular precincts across country made sense at the beginning for these reasons. And though those reasons are no longer valid, citizens now have more reasons to doubt their will is making it Washington. The Electoral College precincts represent auditable chunks of the election that the people must not relinquish, so as to preserve this audability.

The process of electing national leaders is awash in money and corrupted by it. Americans know this, and campaign reform is regularly on the national agenda. However, no matter what laws are passed, real reform escapes the nation. Increasing the size of House of Representatives means it will take much more money to control voting majorities in a House with many hundreds of new members. Increasing the size of the House will bring about a kind of campaign reform along with all the other aforementioned benefits of the appropriate per capita representation for the people.

The United States may have to build a new legislative building, but that is no reason to listen to Democrats and Republicans whine about their lost duopoly. Spending money on this new larger House of Representatives is an intelligent use of funds. It is an honest investment in representation. An investment in a game- changing vision to return the United States to the citizens. An investment to help the people take their rightful place in the leadership.

Libertarian-Socialism: American Style

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