What if you found out that there was a part of the Bill of Rights that WAS ratified, and yet has NEVER been applied?
Once you knew it was a part of our Constitution, could you do anything BUT uphold it, as an elected official sworn to do exactly that?
Hang on to your seats, folks – it happened.
Last fall, the ratification records of Connecticut and Kentucky as concerns the “Articles of Amendment” – what we, today, refer to as “The Bill of Rights”, were discovered hidden away in the drawers of the archives of those States.
In BOTH cases, the documents clearly demonstrate that “Article the First” had been passed in the affirmative by the Legislatures of those States.
By ANY counting, that meant that 12 of the then 15 States voted to ratify “Article the First”.
To become a part of the Constitution, an amendment must pass 75% of the States’ Legislatures. 12 of 15 are 80% - clearly over the 75% threshold.
Therefore, “Article the First” has been the law of the land for over 220 years.
Adhering to the Constitution AS IT IS is not something we “may do”, or “might do”, or “should do”…it is what we “MUST do”.
What does this mean to us, today?
“Article the First” set a ceiling on the size of Congressional Districts at perpetually no larger than 50,000 persons, once there were a total of more than 200 Representatives in Congress. This was to provide an assurance of proportional representation of the different States by population and of accessibility to one’s Representative for redress of grievances and proposal of legislation, as well as the many other benefits derived from consistent district size.
Questions:
Why would 12 of the then 15 States count, today, now that there are 50 States?
The Constitutional Law-Making process is different than the Civil or Criminal law-making process.
In simple terms, “ratification” is not “notification” – as I am fond of saying, “they’re different words – they even enjoy there own place in the dictionary.”
This position proves out in the Supreme Court Ruling in “Coleman v Miller” {Coleman v. Miller, 307 U.S. 433 (1939)}. In short, a vote in the State Legislature FOR ratification is self-enacting.
This was primarily to prevent outside forces from influencing a Legislative decision by preventing notification of Congress…remember, at the time the Constitution was penned, we were still a fledgling Nation, and there was a very real risk of invasion from without, and insurrection from within.
Didn’t the clock run out on “Article the First”?
Again, no. Under another peculiarity of the Constitutional law-making process, unless a specified time frame is given, the question remains open indefinitely…even unto the point that all the States could say “no”, then, over a period of time, as States changed their minds and voted “yes”, each would be added to the tally of affirmative votes, until a total sufficient to demonstrate 75% of the then States had ratified…again, not ‘notified’ – simply ‘ratified’. The case law for this is the well known “Dillon v. Gloss” – {Dillon v. Gloss 256 U. S. 368 1921} that every Constitutional Law student in Law School is drilled on.
It is this very law that allowed Greg Watson to pursue ratification of “Article the Second”, now known as the [27th Amendment], or, more informally, “The Watson Amendment”, which was fully ratified in 1992.
Isn’t there a “mistake” in the language of “Article the First”, and doesn’t it mathematically defeat the intent of the Article as proposed?
There IS a mistake in the copies transmitted to the States for ratification – both in the printed and the hand-engrossed copies.
Please review carefully what I have just said.
I have twice used the word “copies”. That is because there is no “original” version of the “Articles of Amendment” as proposed “in Congress assembled”. As both the Journals of the House and the Senate clearly note, several last-minute changes were made to the version eventually voted on – pared down over several weeks to only 12 Articles of Amendment. Specifically, a joint committee of three members of the House and three members of the Senate proposed on the last day – 09/24/1789, a language change to the “Eighth Article” (what we know as the [“6th Amendment”]), a change in the “Third Article” (our [“1st Amendment”]), and a “last-minute” change of “less” to “more” in body of the “First Article”.
According to Ellsworth, who sat on the committee, and who served as the acting “majority leader” in the Senate, (and his is the only record of the committee proceedings extant), the change was to have taken place “in the last line but one…”.
This bears repeating - “…in the last line but one…”. This means the “second-to-last line”, or, if you’re a grammar geek, like me, “the penultimate line”.
The mistake occurred when John Beckley, the Clerk of the House, made a ‘scrivener’s error’. He copied in his instructions to the “engrossing clerks” and the printers that the change was to have taken place “…in the last place of the last line”.
The “second-to-last line” is not the same as “the last line but one”…is it?
Yes, it’s not.
These fellows in Congress weren’t being “clever” in their speech…that’s how they actually SPOKE to one another in a formal setting.
Here is the text of “Article the First”, as transmitted to the States for ratification. You will see just how easy it is to be confused as to what was meant…and, in fact, it is more than likely that that’s exactly what happened in the several States’ Legislatures.
“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 not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”(emphasis added in bold to denote location where change was made to “more”, and where it was supposed to have been made)
It was confusing enough in this form that the Archives of the United States actually issued a Press release on 12/07/2010 affirming the 50,000 per district interpretation, even with the mistake!
Not surprisingly, due to the present litigation, it has been removed from their website, but may be viewed in original form, here: http://www.scribd.com/doc/94194326/Bill-of-Rights-2010-US-Archivist
Full understanding of this is of critical importance, because what Ellsworth and the committee proposed, and what was “VOICE”-voted in the House and Senate, was NOT what Beckley sent to the States for ratification.
Here, again, we have another peculiarity of the Constitutional law-making process. It is the language as voted by the Federal Legislature that is law – not the “copies” sent out afterward, and not even what was voted on in the States’ Legislatures, that BECOMES the law.
As proposed and affirmed in the House and Senate, the language SHOULD read as follows: (What “Ellsworth’s Report” ACTUALLY says – with clauses separated for clarity, and with red text inserted for interpretation purposes only.)
“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 (sets a minimum of 100 Representatives thereafter, and creates a “floor” of 40,000 persons per District), 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.”(sets a minimum of 200 Representatives thereafter, and creates a “ceiling” of 50,000 persons per District)
What this does, in “English”, is create a situation where, once 200 Representatives are seated, they may Represent no LESS than 40,000, but no MORE than 50,000.
Most houses need a “floor” and a “ceiling”– so does “the People’s House”
Congress “built” one in 1789…and the States ratified it in 1792.
It is a very difficult puzzle to unravel, and we never expected to find evidence that “Article the First” was ratified, or that what we saw as defective language would turn out to be, in fact, a literal “mistake”.
Notwithstanding, “Article the First” IS ratified…and, further, it means what Ellsworth and the Senate and House meant it to.
LaVergne v Bryson, et al – Docket # 12-1171, the lawsuit compelling recognition of the fact of the ratification, and demanding that the correct interpretation be applied, has now been passed to the U.S. Supreme Court.
Now it’s up to YOUR Supreme Court to uphold the Constitution, as they were all sworn to do.
Will they?
Frederick John LaVergne, “Democratic-Republican” for Congress. NJ Third Congressional District
There is a small amount of irony to this. Oliver Ellsworth, possessor of the brilliant judiciary mind that recorded the original vote in Congress, had twin sons – one of whom married Noah Webster’s daughter. If they had had “Scrabble”, back then, it would have been brutal in that household – as it is in ours.
Ellsworth was also responsible for the creation of much of the Judiciary Act…wherein he penned a grammatically correct and perfectly punctuated sentence of 311 words (plus the “name of the district” to be inserted) – Article 27, historically broken into two sentences, one of 49 words, followed by one of 252 words…again, grammatically correct, and properly punctuated.
The Sentence reads as follows:
And be it further enacted, that a marshal shall be appointed in and for each district for the term of four years, but shall be removable from office at pleasure, whose duty it shall be to attend the district and circuit courts when sitting therein, and also the Supreme Court in the District in which that court shall sit, and to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty, and to appoint as there shall be occasion, one or more deputies, who shall be removable from office by the judge of the district court, or the circuit court sitting within the district, at the pleasure of either; and before he enters on the duties of his office, he shall become bound for the faithful performance of the same, by himself and by his deputies before the judge of the district court to the United States, jointly and severally, with two good and sufficient sureties, inhabitants and freeholders of such district, to be approved by the district judge, in the sum of twenty thousand dollars, and shall take before said judge, as shall also his deputies, before they enter on the duties of their appointment, the following oath of office: "I, A. B., do solemnly swear or affirm, that I will faithfully execute all lawful precepts directed to the marshal of the district of ____________ under the authority of the United States, and true returns make, and in all things well and truly, and without malice or partiality, perform the duties of the office of marshal (or marshal’s deputy, as the case may be) of the district of , during my continuance in said office, and take only my lawful fees. So help me God."
Try getting that one out in one breath. For comparison, the whole of Lincoln’s Gettysburg Address is only 271 words long.
It is probably safe to say that Ellsworth, who was present at both the decision to make the last minute change AND the actual vote as taken in the Senate would have correctly written down what he and his committee had proposed – and we have that documented in Ellsworth’s own hand in the report GIVEN to Clerk Beckley to transcribe.
http://www.archives.gov/exhibits/charters/constitution_amendment_27.html
“The “second-to-last line” is not the same as “the last line but one”…is it? Yes, it’s not.”
Looks funny to read it that way, doesn’t it?
Yes, it is.
See how I did that?
That was a little grammatical “gim-crackery” to illustrate my point. It is unfortunately a common practice in legislation to use “negative argument” in proposing a question for debate. (or in an election question… “there oughtta be a law”. Send me to Congress – there will be.)
Frederick John LaVergne
