What about the Two Amendments and Three States that Got Away?
One of the unfortunate features about the ratification of the Bill of Rights is the widespread absence of documentary records from the state legislatures that made the decisions on whether or not to ratify these amendments proposed by the First Congress. There is virtually no detailed account of the debates that took place in the various state legislatures. But we know there must have been some debate because two amendment proposals were rejected. This silence is in contrast to the rather extensive documentation over the creation and ratification of the Constitution. See, for example, the multiple publication of what is now called Madison’s Notes of Debates as well as the nineteenth century work by Jonathan Elliott and the ongoing work since the 1980s by John Kaminski et al. There is sufficient, yet incomplete, coverage of the fate of Madison’s Bill of Rights proposals in the First Congress that were sent to the State Legislatures for ratification.
On October 2, 1789, President George Washington, at the request of the First Congress, sent the 12 amendments approved by the First Congress on September 25, 1789 to the executives of the 13 existing States. The President requested that the State Executives submit these 12 amendment proposals for adoption or rejection to their respective state legislatures. This Congressional request included sending the amendment proposals to Rhode Island and North Carolina even though they had not yet ratified the Constitution. On March 1, 1792, Secretary of State Thomas Jefferson announced that 10 amendments had been ratified by three-fourths of the state legislatures.
What happened in the intervening 29 months?
What we know is that Amendments Three through Twelve were adopted by the minimum 11/14 state legislatures necessary for adoption. Vermont had joined the union thus constitutionally changing the ratio to 11/14 from 10/13. Interestingly, however, Jefferson did not include Vermont in his official count. The Jefferson table suggests that he considered the ratification by 10 of the original 13 states to be the standard for adoption of the Bill of Rights. It turns out that 11/14, and 10/13, states supported Amendments Three through Twelve.
We also know that the First and Second Amendments of the original 12 amendments were not officially ratified. Nine of fourteen states voted in favor of the original First Amendment: Delaware and Pennsylvania voted “no.” Two more votes were needed for passage if we follow the 11/14 requirement. Eight of fourteen approved the original Second Amendment: New Hampshire, New Jersey, and New York voted “no.” Three more votes were needed for passage if we follow the 11/ 14 requirement. Although Massachusetts, Connecticut, and Georgia were not needed for the passage of Amendments Three through Twelve, could their vote have made a difference in the passage of the original First and Second Amendments? Yes, but we need to be cautious in coming to conclusions. Jefferson, Washington, and the Second Congress in 1791 never received any official notification that Massachusetts, Connecticut, or Georgia may have, or may not have, ratified any or all of the proposed Bill of Rights. But what ever did or did not happen in these three states did not prevent Jefferson from announcing the passage of Amendments Three through Twelve which then became officially the First Ten Amendments to the Constitution. When the Second Congress adjourned, the ratification of 10 Amendments by 11 States had been officially received by Jefferson, the Congress, and the President. The Constitution now contained a Bill of Rights.
Three States did not officially support the adoption or rejection of the Bill of Rights. This absence of official adoption or rejection in the 1790s was symbolically rectified in 1939 when the legislatures of Massachusetts, Connecticut, and Georgia ratified the Bill of Rights on the 150th anniversary of the Congressional signing in September 1789.
So what are we to make of these three states that apparently did not, officially at least, adopt the Bill of Rights between 1789-1791? Most importantly, would their official participation have made a difference to the possible passage of the original First and Second Amendments? What if we were able to recover reliable records that showed that these three state legislatures did meet and did pass most, if not all, of the original 12 Amendment proposals? Would this new information require a correction to the constitutional record?
For the original First Amendment—what we shall call “the Representation Amendment”—to be part of the Bill of Rights would have required two of the following three states to agree: Massachusetts, Connecticut, and Georgia. There is no existing evidence about what happened in Georgia. So everything depends on what we can find out about Massachusetts and Connecticut. For the original Second Amendment—what we shall call “the Congressional Pay Amendment”—to be part of the Bill of Rights would have required one of the following three states to agree: Massachusetts, Connecticut, and Georgia. There is no existing evidence about what happened in Georgia. So, again, everything depends on what we can find out about Massachusetts and Connecticut.
Bernard Schwartz in Volume Five of his Roots of the Bill of Rights (1971) indicates that both branches of the Massachusetts legislature in February 1790, after a couple of weeks of debate, approved nine of the twelve amendments proposed by Congress. They did not ratify the original First, Second, and Twelfth Amendments. This is confirmed in a report that appeared in the Providence Gazette and Country Journal dated February 13, 1790. But even though both branches supported nine amendments, this decision was not officially reported to the Secretary of the Commonwealth of Massachusetts. Jefferson wrote to Christopher Gore on August 8, 1791 to inquire about the 18-month-delayed status of the Bill of Rights in Massachusetts. Gore responded to Jefferson on August 18, 1791: “it does not appear that the (Conference) Committee ever reported any bill.” And their decision would not have changed the outcome of the original Congressional proposals.
According to Eugene Martin LaVergne, both branches of the Connecticut Legislature in 1790 actually ratified all 12 amendments. But the ratification document was misfiled in a 1780 rather than a 1790 folder and never reached Jefferson and the Congress. See Eugene M. LaVergene v. Rebecca Blank, Acting Secretary of Commerce, et al. No. 12-778. The main point of this discovery, however, is not primarily to correct the historical record but to correct the constitutional record. As I understand the claim, the “documentary find” means that all 12 amendments need to be included in the Constitution and not just Three through Twelve. The concern seems to be particularly focused on the original First Amendment.
There is no doubt that Connecticut’s role in the Constitutional record has been insufficiently recognized. But the restoration of that vital role is not enhanced by the discovery of a misfiled document. It would have required not only Connecticut to vote in favor of the First Amendment, but also either Massachusetts or Georgia. We know that Massachusetts voted against the First Amendment and we have no idea how Georgia voted. But even if we learn someday that Georgia voted in favor of the First Amendment, there is no need to revise the Constitutional record. The original First Amendment was intended to be effective until a certain number of representatives had been achieved. After that it was up to Congress to set the limit. And Congress followed the proportionality approach until roughly 100 hundred years ago. Then they set the limit at 435. But that can be changed by Congressional action rather than a battle over the Constitution. As far as the original Second Amendment is concerned, that is now the 27th Amendment ratified by three-fourths of the states on May 7, 1992.