First Amendment rights do not have primacy because they come first. The initial Congress submitted twelve amendments to the states, and our First Amendment was then the Third Amendment. The states in the eighteenth century, however, did not ratify the first two proposals, and the Third became the First. But, you ask, what about the two proposed amendments that were not ratified with the Bill of Rights? Each is an interesting story providing several lessons.
The first proposal, passed by a two-thirds majority of each house, said that after the initial census, “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.”
Got that? The Constitution mandated that the original House of Representatives have 65 members, and after the first census, it grew to 105. It continued to grow but was capped in the early twentieth century at 435 members where it now stands. But what if that proposal had been ratified? (And it almost was, falling one state short in 1792.) Its meaning has been debated, but since that proposed amendment did not take effect, we don’t have an authoritative reading. Some scholars, however, have maintained that the unclear language would require a House of Representatives today with as few as 800 and as many as 5,000 Representatives. We dodged a bullet that the first proposed amendment was not ratified, and we should learn that those early constitutional drafters like James Madison and his fellows were not unbridled geniuses with accurate crystal balls.
The second proposed amendment that did not get adopted with the Bill of Rights reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Here the language and purpose are clear. Our representatives should not be able to raise (or lower, ha ha) their pay until the voters have had the chance to consider the remunerative change. Clear, and to the real constitutional nerd, the language is recognizable. It is the text of the Twenty-Seventh Amendment, the last to have been adopted.
Say what? The proposed second amendment was largely forgotten after it failed to be ratified in the 1790s, but in 1982, Gregory Watson, a University of Texas sophomore, wrote a political science paper contending that the old proposal could still be ratified since it had no time limit for ratification. His essay received a “C.” His grader thought Watson’s thesis was farfetched, but Watson set out to show up his teachers. He lobbied state legislatures to adopt the proposed amendment and met with success. States ratified what was once labeled the Second Amendment, and the amendment was certified as ratified on May 7, 1992, as the Twenty-Seventh Amendment. A proposal submitted by Congress to the states in 1789 became part of the Constitution two centuries after it was first proposed because of an incredibly determined, or pissed-off, student. (Watson’s grade in the course was retroactively changed in 2017 to an A+.)
There are lessons here. One person can make a difference. A liberal arts education can have value besides asking about French fries. Modern politicians can be responsive. A poor grade can motivate some students. Perhaps there are other lessons to be drawn, but I’ll leave them to you.