Published on March 21st, 2012 | by Dr. Joel McDurmon39
The Original First Amendment
Nope. I am talking about the First Amendment. That is, the original First Amendment. And it was not about these freedoms—vital as they are—but rather about adequate representation in Congress.
A primary concern among some of the framers was that we would have enough people in the House to speak for the number of people they represented as adequately as possible. For, the larger a body of people to speak for, the less one person truly represents them. This means, therefore, that if we desire more accurate representation, we should have smaller constituencies. This means more districts and more representatives.
Sure enough, under the original First Amendment, instead of only 435 Representatives in Congress—as it has been since the Permanent Apportionment Act of 1929—we would have as many as 6,000. This is because the original First Amendment in the original Bill of Rights allowed for one Representative for every 50,000 people in the population ad infinitum.
Here’s the way that Amendment 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 not be 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.(1)
This is one of two proposed amendments in the original proposed Bill of Rights which were not adopted by enough of the States to come into effect.
So, granted, this “Amendment” cannot technically be called the First Amendment since it never passed. It was merely the First proposed Amendment. But the issue it addresses is highly important, and the fact that it fell only one State short of ratification shows that most of the early framers felt it was important as well. (In fact, only two of fourteen States—Delaware and Pennsylvania—actually refused it. Eight agreed to it, and four States simply did not return the call for any Amendments at all).
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In fact, the constitutional standard we got was 1 for every 30,000, which would mean up to 10,000 representatives! This, of course, was also trumped by the 1929 Act.
Granted, it is a valid concern whether it is desirable to have another 5,565—let alone 9,565—federal-level politicians running around, but the principle of adequate representation is vital to freedom. It was this principle that the proposed amendment sought to protect, and for this reason it is worth reviewing this original proposal: 1) it raises our awareness as to how vital the principle of adequate representation is, and 2) it forces us to question whether our relatively meager (in numbers) representative House is much more than the oligarchy so many of the framers predicted.
Oligarchy, Mobocracy, or Freedom?
What will come of this discussion is the contrast between two inevitable problems of a large centralized government as opposed to better representation under a decentralized political system. The framers abandoned the latter type of system, then spent their time arguing over which of the two problematic versions was best for the nation.
The issue of representation, and in particular the dangers of oligarchy or aristocracy, formed a central objection for the anti-federalist opponents of the Constitution. For example, Richard Henry Lee of Virginia called the legislature under the Constitution “dangerously oligarchic.” He argued that “smallness of number and great comparative disparity of power, renders that house of little effect to promote common good, or restrain bad government.” The proposed Constitution, said he, provided for “a mere shred or rag of representation.”(2)
The Federal Farmer explained the principle clearly: “full and equal representation, is that which possesses the same interests, feelings, opinions, and views the people themselves would were they all assembled.”(3) He thought the proposed arrangement in the constitution lacking in this regard since it centralized too great a nation under one small legislature: “it would be impossible to collect a representation of the parts of the country five, six, or seven hundred miles from the seat of government.”(4)
The Federal Farmer goes on to argue that truer representation would exist at the State and local levels, leaving the federal government few and far removed in that regard. And yet, “as to powers, the general government will have all essential ones, at least on paper, and those of the states a mere shadow of power.” He called this “an unnatural separation of these powers from the substantial representation of the people.”(5)
And therefore, unless the people shall make some great exertions to restore to the state governments their powers in matters of internal police; as the powers to lay and collect, exclusively, internal taxes, to govern the militia, and to hold the decisions of their own judicial courts upon their own lands final, the balance cannot possibly continue long; but the state governments must be annihilated, or continue to exist for no purpose.(6)
And of course, when only a few offices are available among millions of people, and gaining those offices depends upon commanding the attention and votes of those masses, then naturally the wealthiest members of society would have the advantage in gaming the system. Thus, the Antifederalists virtually equated oligarchy—the rule of the few—with Aristocracy—the rule of the wealthy.
Thus we hear various cries against the Constitution for setting up an inevitable Aristocracy. Melancton Smith of New York argued that “the influence of the great will generally enable them to succeed in elections.” Thus, a man stood little chance unless he had “military, popular, civil or legal talents.”(7)
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Partisan politics would develop and make the masses easy to control:
The common people will divide, and their divisions will be promoted by others. There will be scarcely a chance of their uniting, in any other but a great man, unless in some popular demagogue, who will probably be destitute of principle. . . .
From these remarks it appears that the government will fall into the hands of the few and the great. This will be a government of oppression.(8)
Thus the Antifederalists warned of strong centralized government, especially for a legislature, and instead promoted the idea of leaving most power at local levels where smaller constituencies would be better represented.
George Washington, also, was on the side of smaller constituencies while at the Convention, but only because he thought it would “lessen the people’s objections to the Constitution.”(9) Nathaniel Gorham of Massachusetts made a motion on constituency size for the very purpose “of lessening objections to the Constitution.” In his lone comment on the actual substance of the Constitution during the Convention, Washington himself agreed:
When the President rose, for the purpose of putting the question, he said that although his situation had hitherto restrained him from offering his sentiments on questions depending in the House, and it might be thought, ought now to impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place. It was much to be desired that the objections to the plan recommended might be made as few as possible— The smallness of the proportion of Representatives had been considered by many members of the Convention, an insufficient security for the rights & interests of the people. He acknowledged that it had always appeared to himself among the exceptionable parts of the plan; and late as the present moment was for admitting amendments, he thought this of so much consequence that it would give much satisfaction to see it adopted.
The editor makes a footnote here: “This was the only occasion on which the President entered at all into the discussions of the Convention.”(10) It must have been pretty important to him, then, at least just to get the thing passed.
The problem on the other hand, however, is the problem of democracy properly so-called. In a pure democracy, the voice of the majority wins, despite how partisan or mad it may be. But people tend to congregate in the cities. Thus, a large jurisdiction may come to be dominated by a single densely-populated city. Whereas the people living in the countryside may simply want to be free and left alone, the urban area will dominate the State’s politics. Thus, the population centers rule the world. It’s called democracy, but it’s really just organized mobocracy.
This is true for the nation as well, and the framers understood the problem. It was Luther Martin, a delegate from Maryland, who reported how if representation was too accurately proportional to State population it would allow some States “undue influence” over others. He calculated that in some cases, just a few States would be sufficient to constitute a whole quorum and thus create a national legislative faction that could control the majority of the other States.(11) Being right next door to the most populous State, Virginia, Martin was rightly sensitive to being sucked into the power of its legislative vortex.
With the Constitution’s “one for every thirty Thousand” standard, this is eventually what happened. It was the problem that eventually led to the Permanent Apportionment Act of 1929. The government’s website says, “Gradually, however, the method for calculating apportionment caused smaller rural states to lose representation to larger urbanized states.”
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The solution to both of these extremes is to have decentralized government like I have discussed in my essays on “County Rights” (here, here, and here). The essential powers of government need to be taken from Washington and deposited back at the local level where they belong—and better at the county or local levels than at the State, with the State serving as a buffer between the feds and the locals.
Oddly enough, it was on this principle of decentralization, very likely, that Pennsylvania rejected the original proposed First Amendment as it did (leading to its demise). It was not that they thought fewer representatives could speak adequately for larger contingencies of people. It was rather that they supposed the Federal legislature was not so constituted as to be getting involved in the type of legislation that touched directly on individuals’ lives to begin with. Thus, the local populations would not really need large numbers of representatives at the fedeeral level, but only at the level of the State legislatures.
This was the reasoning, anyway, of James Wilson as he argued during the Pennsylvania ratifying Convention:
Permit me to add a further observation on the numbers–that a large number is not so necessary in this case as in the cases of state legislatures. In them there ought to be a representation sufficient to declare the situation of every county, town and district, and if of every individual, so much the better, because their legislative powers extend to the particular interest and convenience of each; but in the general government its objects are enumerated, and are not confined in their causes or operations to a county, or even to a single state. No one power is of such a nature as to require the minute knowledge of situations and circumstances necessary in state governments possessed of general legislative authority.(12)
Wilson was right about how the principle should work, but wrong (or lying) to assume that the nationalists and the Constitution would really function in the way he state. And of course, history—both immediately and up until today—have proven he should not have trusted them.
The original proposed First Amendment sought to address the problem of inadequate representation in the Constitution. Many writers rightly saw the Constitution flawed in this principle and leading to aristocracy and oligarchy. But the proposed amendment itself was fundamentally flawed as it would have led to widespread mobocracies which were no better.
We can only begin to solve the issue when we see these two problems as two sides of the same fundamental problem: centralized power on such a large scale to begin with.
And deal with this problem we must, if we are ever to be as free as we claim to be. This issue of representation was the primary concern—number one on the list—of the men who wrote the original bill of rights. Of course they held the rights of speech, assembly, and religion as high as anything, but the issue of representation was the issue of the structure of power—and that would determine how well all those other rights would be protected into the future. And for this reason, it appears, they placed representation at the head of their list to consider.
I think we should, too. But I think it is not addressed by one more top-down, centralizing amendment. We need to rethink the fundamental structure of power and law in society altogether.
(For further study on the subject, there is a website dedicate to it. I have not covered the whole site, so I am not sure I can vouch for it all, but the basic info I have seen is certainly worth studying: http://www.thirty-thousand.org/)Endnotes:
- “Proposed Amendments and Ratification 1789,” in The Founders’ Constitution, 5 vol., eds. Philip B. Kurland and Ralph Lerner (Chicago and London: The University of Chicago Press, 1987), 5:40. (↩)
- The Complete Antifederalist, 7 vols., ed. Herbert J. Storing (Chicago: The University of Chicago, 1981), 5:114.(↩)
- Storing, 2:230.(↩)
- Storing, 2:230.(↩)
- Storing, 2:232–3.(↩)
- Storing, 2:233.(↩)
- Storing, 6:158.(↩)
- Storing, 6:158.(↩)
- Clair W. Keller, “The Failure to Provide a Constitutional Guarantee on Representation,” Journal of the Early Republic 13/1 (Spring 1993): 23.(↩)
- Farrand’s Records, 2:643–644. Keller incorrectly notes that this is on pages 443–444.(↩)
- Farrand, 3:197–199.(↩)
- Farrand, 3:160.(↩)