ALMOST everyone thinks he knows about the Bill of Rights, but there’s a bit more to it than most people have been taught. You, dear reader, undoubtedly knew these things already, but you may find this post to be of assistance when informing others.
According to this page at the Library of Congress: Transcript of Bill of Rights (1791), the Bill of Rights has a Preamble — as does the Constitution.
The Preamble is three paragraphs long. The first paragraph is about the intent of the Bill of Rights, which makes it of vital importance; the other two are merely procedural. There’s also a “header” of sorts, indicating the date and place of Congress’ session; that’s of historical interest only, but we’ll toss it in for completeness:
This is the Preamble, with just a bit of bold font added by us for emphasis:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Considering that it describes the reason for having a Bill of Rights, there’s no excuse for any textbook’s ignoring the Preamble.
Not only is the Preamble often omitted from textbook copies of the Bill of Rights, it’s usually ignored that there were originally twelve amendments proposed, not ten. According to this page at the Library of Congress: The Bill of Rights:
On September 25, 1789, the First Federal Congress of the United States proposed to the state legislatures twelve amendments to the Constitution. The first two, concerning the number of constituents for each Representative and the compensation of Congressmen, were not ratified.
Unlike the undeserved oblivion into which the Preamble has been cast, it’s understandable that the first two proposed amendments are ignored in textbooks — they weren’t ratified by the required number of states.
Although these things are ignored, they’re not forgotten. The image is faded, but at the website of the National Archives you can see the original congressional document approved by Congress, complete with the Preamble and all twelve proposed amendments: Image of Bill of Rights.
Here are the first two amendments which didn’t make it through the ratification process. The text is from Transcript of Bill of Rights (1791) at the Library of Congress website:
Article the first. 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.
Article the second. No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
What happened to those two? The original first amendment was never ratified, which is probably for the best — we’ve outgrown a 200-member House. The second was eventually ratified on 07 May 1992 when the last of the necessary number of states finally approved it. It only took 200 years, but the original 2nd is now the 27th Amendment to the Constitution. Here’s a Wikipedia article on it: Twenty-seventh Amendment.
In view of the history, it’s amusing to encounter the uninformed babble of some journalists and preachers who attach a mystical significance to “their” amendment’s being The First. Although it pains us to contradict their fantasies, we nevertheless delight in pointing out that what is now the First Amendment was originally intended to be the third. That was its place in the sequence of amendments which the authors of the Bill of Rights sent to the First Congress; and that was its sequence when passed by Congress and sent to the states.
If all twelve amendments had been ratified by the states, what we now know as the First Amendment would be number three — a digit lacking the magical, numerological significance to raise its importance above the rest. That doesn’t even slow down the “First Above All Others” kooks.
A few years ago at another website, we tried to explain this to a creationist who was in some kind of ecstatic trance about the “fact” that religion had been listed first. She was always in a trance about something, but that day it was the “special” position of the First Amendment. “Ooooooo, the Framers deliberately made it number one!” Her response to our explanation and links was:
[W]ith all due and sincere respect, the “scientific method” is not the tool of choice for deliberating and deciding these issues. As long as you stay in that rut, you will continue to miss the entire point of the Framers’ exercise.
That’s typical of the creationist brain in action. Their irrationality isn’t limited to science rejection. However, back to the topic at hand:
Of the first ten amendments to be ratified, we’re particularly enamored of the last two — now numbers Nine and Ten. They’ve always been part of the Bill of Rights, but — like the Preamble — they’re too often overlooked. We’ve discussed them in detail here: Open Letter to Sonia Sotomayor, but they make even more sense when considered together with the Preamble.
Anyway, dear reader, those are the “lost” parts of the original Bill of Rights. While we’re poking around in dusty, historic documents, we’ll mention a few of our oldie-goldie posts: Of Plymouth Plantation: “Every Man for His Own Particular”, and then The Virginia Statute for Religious Freedom, and then Is America a “Christian Nation”? That should keep you busy for a while.
Update: See Amendments After the Bill of Rights.
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