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100 Yale L.J. 1131

Copyright © 1991 Yale Law Journal Company.

Yale Law Journal

March, 1991

100 Yale L.J. 1131

LENGTH: 41999 words

ARTICLE: The Bill of Rights as a Constitution.

Akhil Reed Amar [+]

[+] Professor, Yale Law School.


SUMMARY:

... To many Americans, the Bill of Rights stands as the centerpiece of our

constitutional order -- and yet constitutional scholars lack an adequate account

of it. ... The Virginia ratifying convention's declaration of rights followed a

similar pattern, invoking "the people's" rights to assembly, instruction, speech,

press, and arms-bearing -- political rights all -- but using "every freeman" and

"man" language in connection with a variety of civil rights involving due

process and criminal procedure safeguards. ... Finally, let us consider how the

Tenth Amendment elegantly integrates popular sovereignty with federalism....

It misses the many linkages between the original Constitution and the Bill --

the importance of earlier invocations of "the people" in the Preamble and

Article I; the connection between the free speech clause and the speech and

debate clause; the relevance of the enumerated power philosophy of Article I

for First Amendment absolutism; the subtle interplay between the militia and

army clauses of Article I and the Second and Third Amendments; the

implications of the Article III jury trial command for the Sixth Amendment; the

nonexclusivity of Article V signalled by the First, Ninth, and Tenth

Amendments; and so on. ...

TEXT-1:

To many Americans, the Bill of Rights stands as the centerpiece of our

constitutional order -- and yet constitutional scholars lack an adequate account

of it. Instead of being studied holistically, the Bill has been chopped up into

discrete chunks of text, with each bit examined in isolation. In a typical law

school curriculum, for example, the First, Ninth, and Tenth Amendments are

integrated into an introductory survey course on "Constitutional Law"; the

Sixth, Eighth, and much of the Fifth are taught in "Criminal Procedure"; the

Seventh is covered in "Civil Procedure"; the takings clause is featured in

"Property"; the Fourth becomes a course unto itself, or is perhaps folded into

2

"Criminal Procedure" or "Evidence" (because of the judicially-created

exclusionary rule); and the Second and Third are ignored. 1

When we turn from law school classrooms to legal scholarship, a similar

pattern emerges. Each clause is typically considered separately, and some

amendments -- again, the Second and Third -- are generally ignored by

mainstream constitutional theorists. 2 To my knowledge no legal academic in

the twentieth century has attempted to write in any comprehensive way about

the Bill of Rights as a whole. 3 So too, today's scholars rarely consider the rich

interplay between the original Constitution and the Bill of Rights. Leading

constitutional casebooks treat "the structure of government" and "individual

rights" as separate blocks 4 (facilitating curricular bifurcation of these subjects

into different semesters), and the conventional wisdom seems to be that the

original Constitution was concerned with the former; the Bill of Rights, the

latter.

In this essay I seek to challenge the prevailing practice by offering an

integrated overview of the Bill of Rights as originally conceived, an overview

that illustrates how its myriad provisions related to each other and to those of

the original Constitution. In the process I hope to refute the prevailing notion

that the Bill of Rights and the original Constitution represented two very

different types of regulatory strategies.

Conventional wisdom acknowledges that the original Constitution proposed by

the Philadelphia convention focused primarily on issues of organizational

structure and democratic self-governance: federalism, separation of powers,

bicameralism, representation, and constitutional amendment. By contrast, the

Bill of Rights proposed by the first Congress is generally read to have little to

say about such issues. Its dominant approach, according to conventional

wisdom, was rather different: to vest individuals and minorities with

substantive rights against popular majorities. I disagree.

Of course, individual and minority rights did constitute a motif of the Bill of

Rights -- but not the sole, or even the dominant, motif. A close look at the Bill

reveals structural ideas tightly interconnected with language of rights; states'

rights and majority rights alongside individual and minority rights; and

protection of various intermediate associations -- church, militia, and jury --

designed to create an educated and virtuous electorate. The main thrust of the

Bill was not to downplay organizational structure, but to deploy it; not to

impede popular majorities, but to empower them.

Consider, in this regard, Madison's famous assertion in The Federalist No. 51

that "[i]t is of great importance in a republic not only to guard the society

against the oppression of its rulers, but to guard one part of the society against

the injustice of the other part." 5 The conventional understanding of the Bill

seems to focus almost exclusively on the second issue (protection of minority

against majority) while ignoring the first (protection of the people against selfinterested

government). Yet as I shall show, this first issue was indeed first in

the minds of those who framed the Bill of Rights. To borrow from the language

of economics, the Bill of Rights was centrally concerned with controlling the

"agency costs" created by the specialization of labor inherent in a republican

government. In such a government the people (the "principals") delegate

power to run day-to-day affairs to a small set of specialized government

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officials (the "agents"), who may try to rule in their own self-interest, contrary

to the interests and expressed wishes of the people. To minimize such selfdealing

("agency costs"), the Bill of Rights protected the ability of local

governments to monitor and deter federal abuse, ensured that ordinary

citizens would participate in the federal administration of justice through

various jury-trial provisions, and preserved the transcendent sovereign right of

a majority of the people themselves to alter or abolish government and

thereby pronounce the last word on constitutional questions. The essence of

the Bill of Rights was more structural than not, and more majoritarian than

counter.

I. MODERN BLINDERS

Before we fix our gaze on the eighteenth-century Bill of Rights, let us briefly

consider how nineteenth- and twentieth-century events and ideas have

organized our legal thinking, predisposing us to see certain features of the

constitutional decalogue and to overlook others.

A. The Ideology of Nationalism

We inhabit a world whose constitutional terrain is dominated by landmark

Supreme Court cases invalidating state laws and administrative practices in the

name of individual constitutional rights. Living in the shadow of Brown v. Board

of Education 6 and the second Reconstruction of the 1960's, many lawyers

embrace a tradition that views state governments as the quintessential threat

to individual and minority rights, and federal officials -- especially federal

courts -- as the special guardians of those rights. 7

This nationalist tradition has deep roots. Over the course of two centuries, the

Supreme Court has struck down state action with far more regularity than it

has invalidated acts of coordinate national branches. 8 Early in this century,

Justice Holmes declared, "I do not think the United States would come to an

end if we lost our power to declare an Act of Congress void. I do think the

Union would be imperiled if we could not make that declaration as to the laws

of the several States." 9 Professor Thayer's famous 1893 essay on judicial

review also embraced an expansive role for federal courts in reviewing state

legislation, even as Thayer preached judicial deference to congressional acts of

doubtful constitutionality. 10 Holmes and Thayer had reached maturity during

the Civil War era, and they understood from firsthand experience that the

constitutional amendments adopted following the war -- particularly the

Fourteenth Amendment -- evinced a similar suspicion of state governments.

In fact, the nationalist tradition is far older than Reconstruction; its deepest

roots lie in Philadelphia, not Appomattox. One of the Federalists' most

important goals was to forge a strong set of federally enforceable rights

against abusive state governments, a goal dramatized by the catalogue of

rights in Article I, section 10 -- the Federalist forebear of the Fourteenth

Amendment. 11 Indeed, the very effort to create a strong central government

drew much of its life from the Federalists' dissatisfaction with small-scale

politics and their belief that an "enlargement" of the government's geographic

"sphere" would improve the caliber of public decisionmaking. 12 The classic

statement of this view, of course, is Madison's Federalist No. 10.

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Alongside this nationalist tradition, however, lay a states' rights tradition --

also championed by Madison -- extolling the ability of local governments to

protect citizens against abuses by central authorities. Classic statements of this

view include Madison's Federalist No. 46, his Virginia Resolutions of 1798, and

his Report of 1800. Heavy traces of these ideas appear even in the work of the

strong centralizer Alexander Hamilton. 13

The foundations of this states' rights tradition are even older than those of the

nationalist tradition -- indeed, older than the Union itself. During the fateful

years between the end of the French-Indian War and the beginning of the

Revolutionary one, it was colonial governments that took the lead in protecting

Americans from perceived parliamentary abuses. Colonial legislatures kept a

close eye on the central government; sounded public alarms whenever they

saw oppression in the works; and organized political, economic, and

(ultimately) military opposition to perceived British abuses. 14 The rallying cry

of the Revolution nicely illustrates how states' rights and citizens' rights were

seen as complementary, rather than conflicting: "No taxation without

representation" sounds in terms of both federalism and the rights of

Englishmen. 15

The complementary character of states' rights and personal rights was

dramatized yet again by the Virginia and Kentucky Resolutions of 1798-1800.

Self-consciously echoing their colonial forebears, legislators in these two states

sounded the alarm when they saw the central government taking actions that

they deemed dangerous and unconstitutional. 16 Like its predecessor, the

"Revolution of 1800" fused rhetoric of federalism and freedom: the Alien and

Sedition Acts were seen as violating both the First and the Tenth Amendments.

17 Although many other state legislatures rejected Kentucky's open-ended

claims that a state could nullify a federal law, state legislatures as a whole

played a central role in the denouement of the new nation's first constitutional

crisis. Through their power to select Senators and presidential electors, state

lawmakers helped sweep the high-Federalist friends of the Alien and Sedition

Acts out of national office in the election of 1800, replacing them with

Jeffersonians who allowed the repressive Acts to expire.

Madison was quite careful to identify the limits, as well as the affirmative

scope, of states' rights. State governments could monitor the federal one, and

mobilize political opposition to federal laws seen as oppressive, but no state

entity could unilaterally nullify those laws or secede from the Union. 18

Moreover, Madison's scheme gave the federal government a crucial role in

protecting citizens from abusive state governments. Later spokesmen for the

states' rights position, such as John C. Calhoun, Jefferson Davis, and Alexander

Stephens, disregarded these vital limits to states' rights. Not only did their

arguments on behalf of nullification and secession misread the Constitution's

federal structure, 19 but these arguments were deployed on behalf of slavery,

the ultimate violation of human dignity. Once again, a war was fought on

American soil over intertwined issues of states' rights and human rights, but

with a critical difference. In sharp contrast to the Revolutionaries' rhetoric of

the 1770's, the Rebels' rhetoric of federalism in the 1860's came to be seen as

conflicting with, rather than supportive of, true freedom.

Twentieth-century Americans are still living with the legacy of the Civil War,

with modern rhetorical battle lines tracking those laid down a century ago.

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Thus, in the tradition of Thaddeus Stevens, twentieth-century nationalists

recognize the need for a strong national government to protect individuals

against abusive state governments, but often miss the threat posed by a

monstrous central regime unchecked by competing power centers. Conversely,

in the tradition of Jefferson Davis, twentieth-century states' rightists wax

eloquent about the dangers of a national government run rampant, but

regularly deploy the rhetoric of states' rights to defend states' wrongs. Sadly,

"states' rights" and "federalism" have often served as code words for racial

injustice and disregard for the rights of local minorities 20 -- code words for a

world view far closer to Jefferson Davis' than James Madison's.

What has been lost in this twentieth-century debate is the crucial Madisonian

insight that localism and liberty can sometimes work together, rather than at

cross-purposes. This is one of the themes that I hope will emerge from a fresh

look at Madison's Bill of Rights.

B. The Logistics of Incorporation

Through the Fourteenth Amendment, almost all the provisions of the Bill of

Rights have come to be "incorporated" against the states. 21 Although generally

sound, 22 the process of incorporation has had the unfortunate effect of blinding

us to the ways in which the Bill has thereby been transformed. Originally a set

of largely structural guarantees applying only against the federal government,

the Bill has become a body of rights against all government conduct. Originally

centered on protecting a majority of the people from a possibly

unrepresentative government, the Bill has been pressed into the service of

protecting vulnerable minorities from dominant social majorities. Given the

core concerns of the Fourteenth Amendment, all this is fitting, but because of

the peculiar logistics of incorporation, the Fourteenth Amendment itself often

seems to drop out of the analysis. We appear to be applying the Bill of Rights

directly; the Civil War Amendment is mentioned only in passing or not at all. 23

Like people with spectacles who often forget they are wearing them, most

lawyers read the Bill of Rights through the lens of the Fourteenth Amendment

without realizing how powerfully that lens has refracted what they see.

It is time, then, to take off these spectacles, and try to see how the Bill of

Rights looked before Reconstruction. Only then can we fully appreciate some of

its most important features, as originally conceived. And only after we

understand this original vision can we begin to assess, in a self-conscious and

systematic way, how much -- if any -- of this vision has survived subsequent

constitutional developments. 24

II. THE ORIGINAL BILL OF RIGHTS

Let us begin by considering two provisions that are not part of our Bill of

Rights, but were part of Madison's.

A. Lost Causes and Forgotten Clauses

1. Size and Representation: First Things First

The first Congress proposed a Bill of Rights containing twelve amendments, but

only the last ten were ratified by the requisite three-fourths of state

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legislatures, thereby becoming "valid to all Intents and Purposes, as Part of

[the] Constitution." 25 Thus, the words that we refer to as the "First"

Amendment really weren't "First" in the minds of the first Congress. Hear,

then, the words that began their Bill of Rights:

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. 26

This would-be First Amendment obviously sounds primarily in structure; it is an

explicit modification of the structural rule set out in Article I, section 2,

mandating that the "Number of Representatives shall not exceed one for every

thirty Thousand" constituents. 27 Had this original First Amendment been

adopted instead of narrowly defeated during the ratification period -- it fell one

state short of the requisite three-fourths -- it would no doubt be much harder

for twentieth-century citizens and scholars to ignore the Bill of Rights'

emphasis on structure, for the Bill would begin and end with obviously

structural provisions. As it stands instead, the fact that the most evident

structural provision (our Tenth, their Twelfth, Amendment) sits at the end of

the decalogue may mislead us into viewing it as an afterthought, discontinuous

with the perceived individual rights theme of the earlier provisions. The original

First Amendment suggests otherwise. It is not surprising that this Amendment

was first, for it responded to perhaps the single most important concern of the

Anti-Federalists.

Part of this concern focused on demography and geography -- on the

numerical size of the polity and the spatial size of the nation. Classical political

theory had suggested that republics could thrive only in geographically and

demographically small societies, where citizens would be shaped by a common

climate and culture, would have homogeneous world views, would know each

other, and could meet face-to-face to deliberate on public issues. Models of

such republics included the Greek city-states and pre-imperial Rome. 28

a. The Federalists' Contribution

The Federalists stood this orthodoxy on its head by claiming that a large and

modestly heterogeneous society could actually produce a more stable republic

than could a small city or state. Madison's Federalist No. 10 is today

recognized as the most elegant and incisive presentation of this revolutionary

idea, but in fact the entire introductory section of The Federalist Papers is

devoted to confronting the Anti-Federalist concern about size. In The Federalist

No. 2, Jay notes the many ways in which (white) Americans shared a basic

homogeneity that constituted them as one people, ethnically, culturally,

linguistically, historically, commercially, and geographically. Over the next

seven papers, Jay and Hamilton sketch the inability of small republics to

defend themselves against external threats while maintaining internal

democracy. This is primarily a geopolitical and military argument for an

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extended nation. Finally, Madison takes the stage in Numbers 10 and 14,

stressing the purely domestic reasons for preferring a large state. 29

Madison's first two Federalist Papers demonstrate the rich interplay among the

issues of national size, legislative size, and representation. (The last issue, of

course, had played a central role in the debates leading up to and growing out

of the American Revolution; anyone claiming that the new Constitution

vindicated rather than betrayed that Revolution had to address the subject of

representation head on.) Direct democracy, Madison argued, was impossible in

any society more expansive than a small city-state. 30 Even in tiny Rhode

Island, the mass of citizens could not assemble regularly to decide matters of

state; instead, citizens had to rely on a smaller body of government agents to

represent them. 31 Rather than cause for alarm, representation was a great

blessing in Madison's eyes. A small, select group of representatives could

"refine" 32 public opinion and produce more virtuous, wise, and stable

decisions. The image here is akin to skimming a small amount of cream (the

representatives) off the top of a bucket of milk (the polity). 33 Just as

representative systems were better (creamier) than direct democracies, so a

large society was preferable to a small one. In order to get the same absolute

amount of cream, we need skim an even thinner (and thus richer) layer off the

top of a bigger bucket. This last argument, of course, presupposes an absolute

numerical limit on the size of the legislature: no matter how large the polity,

the legislature could not expand beyond a certain number (just as direct

democracy could not expand beyond a certain size), after which deliberation

and discussion would be impossible. 34

Yet even Madison noted that the skimming principle should not be carried to

extremes: "By enlarging too much the number of electors [per representative],

you render the representative too little acquainted with all their local

circumstances and lesser interests. . . ." 35

b. The Anti-Federalists' Critique

Probably the deepest Anti-Federalist objection to the Constitution was that the

document took the skimming principle too far: Congress was too small, too

"refined." Indeed, this structural concern underlay most of the Anti-Federalists'

other arguments. Because the legislature was so small, the Anti-Federalists

feared that only "great" men with reputations over wide geographic areas

could secure election. 36 Thus, for Anti-Federalists, the Constitution was at

heart an "aristocratic" document, notwithstanding its ringing populist

proclamations ("We the People . . .") and the process of ratification itself,

which was far more democratic than the process by which the Articles of

Confederation and most state constitutions had been adopted. 37 Anti-

Federalists feared that the aristocrats who would control Congress would have

an insufficient sense of sympathy with, and connectedness to, ordinary people.

Unlike state legislators, "lordly" men in Congress would disdain their lowly

constituents, who would in turn lose confidence in the national government. In

the end, the new government would be obliged to rule through corruption,

force, and fear -- with monopolies and standing armies -- rather than through

mutual confidence. 38 Thus, Anti-Federalists rejected the novel logic of The

Federalist No. 10 in favor of more orthodox political science: because of the

attenuated chain of representation, Congress would be far less trustworthy

than state legislatures.

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The Anti-Federalists' lack of confidence in the federal legislature's ability to

truly represent the people made them all the more insistent on popular

representation in the judicial branch. Precisely because ordinary citizens could

not aspire to serve as national legislators, there was a vital need to guarantee

their role as jurors. This was especially true because national laws, adopted by

persons unfamiliar with local circumstances, would need to be modified in their

application by representatives better acquainted with local needs and customs.

39

The Anti-Federalists were not simply concerned that Congress was too small

relatively -- too small to be truly representative of the great diversity of the

nation. Congress was also too small absolutely -- too small to be immune from

cabal and intrigue. As Gilbert Livingston pointed out during the New York

ratifying convention, the extraordinary powers of the Senate were vested in

twenty-six men, fourteen of whom would constitute a quorum, of which eight

would make up a majority. 40 Although the House of Representatives looked

much better, with its initial allocation of sixty-five members, it could

conceivably end up even worse, as Patrick Henry noted in the Virginia ratifying

convention:

In the clause under consideration, there is the strangest language that I can

conceive. . . . "The number shall not exceed one for every thirty thousand."

This may be satisfied by one representative from each state. Let our numbers

be ever so great, this immense continent may, by this artful expression, be

reduced to have but thirteen representatives. 41

And of course, by logic similar to Livingston's, seven Representatives could

conceivably form a quorum, four of whom would constitute a majority!

Friends of the Constitution were not oblivious to these concerns, as Madison's

own language in The Federalist Papers shows. 42 Indeed, the "thirty thousand"

clause set the scene for a dramatic finale to the Philadelphia convention in

which George Washington, for the first and last time, took center stage to

address his fellow delegates on a substantive issue.

The date was September 17, 1787 -- the final day of the convention. Two days

earlier the convention had unanimously agreed to a final text and had

authorized the engrossment of the parchment for signing. 43 This final version

provided that the number of Representatives not exceed "one for every forty

thousand." Moments before the copy was finally voted upon and signed,

Nathaniel Gorham of Massachusetts "said if it was not too late he could wish,

for the purpose of lessening objections to the Constitution, that the clause . . .

might be yet reconsidered, in order to strike out 40,000 & insert 'thirty

thousand.'" 44 The irregularity of this eleventh hour motion only underscored

the importance of the issue. Equally irregular was the response of presiding

officer Washington, who had until then officially maintained a scrupulous

silence on all substantive issues:

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

9

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. 45

With the weight of its President behind the measure, the convention

unanimously adopted the amendment. An erasure was made in the parchment,

the word "thirty" was inserted where "forty" had been, and the document was

then finally approved and signed. Thus, even before the ratification struggle,

Federalist supporters of the Constitution were sensitive to the structural issue

of congressional size.

During the ratification debates Anti-Federalists seized upon the issue, taking up

Publius' challenge to frame their opposition in structural terms:

And the adversaries of the plan promulgated by the convention would have

given a better impression of their candor if they had confined themselves to

showing that the internal structure of the proposed government was such as to

render it unworthy of the confidence of the people. 46

[A]ll observations founded upon the danger of usurpation ought to be referred

to the composition and structure of the government, not to the nature or

extent of its powers. 47

Nowhere was the concern with size more evident than in the ratification

conventions themselves. Of the six states where conventions endorsed various

amendments prior to the meeting of the first Congress -- Massachusetts, New

Hampshire, New York, North Carolina, South Carolina, and Virginia -- all but

one (South Carolina) proposed a secure minimum size for the House of

Representatives. 48 This proposal was never placed lower than second on a

typically long list of desired amendments. Only one principle ever ranked

higher -- the idea of limited federal power that eventually made its way into

our Tenth (their Twelfth) Amendment. 49 In the words of leading Anti-Federalist

Melancton Smith at the New York ratifying convention, "We certainly ought to

fix, in the Constitution, those things which are essential to liberty. If any thing

falls under this description, it is the number of the legislature." 50

c. The First Amendment Compromise

Given all this, it is not surprising that the first Congress' First Amendment

attempted further fine tuning of the structure of representation in the lower

house. Nor is it surprising that Virginia, the home state of both Madison and

Henry, ratified this Amendment separately, weeks before approving the rest of

the Bill of Rights. 51 What remains to be explained is why the Amendment

failed, even by a single vote. 52 Although the legislative history on this point is

sparse, a close analysis of the text itself yields a couple of possible

explanations.

First, the Amendment's intricate mathematical formula made little sense. If the

10

population rose from eight to nine million in a decade, the requirement that

there be at least 200 Representatives would be inconsistent with the

requirement that there be not more than one Representative for every fifty

thousand people. In effect, the Amendment required the population to jump

from eight to at least ten million in a single decade! The mathematical oddness

of the text is confirmed by the lean legislative history that does exist. When

initially passed by the House of Representatives, the Amendment was worded

identically to its final version with one exception: its last clause provided for

"not . . . less than one Representative for every fifty thousand persons." 53 So

worded, the proposal was sent to the Senate, along with all the other

amendments proposed by the House. When the Senate adopted a Bill of Rights

whose wording and substance diverged from the House version, the two

chambers convened a joint committee to harmonize the proposed Bills. 54 At

this conference, the word "more" was inexplicably substituted for "less," and

the conference paste-job was hurriedly adopted by both houses under the

shadow of imminent adjournment, apparently without deep deliberation about

the substitution's (poor) fit with the rest of the clause. 55 Thus it is quite

possible that the technical glitches in the First Amendment's formula became

evident only during the later process of ratifying Congress' proposed

amendments.

Second, and related, what the First Amendment promised in the short term --

increased congressional size -- it took back in the long run. Its final clauses

established a maximum, not a minimum, on congressional size. Even worse,

this maximum was more stringent than that in the existing Constitution. In

effect, the Amendment dangled the bait of more "democracy" now in exchange

for more "aristocracy" in the future. Some committed democrats may have

been wary of snatching that bait. Tellingly, not a single state ratifying

convention had proposed a stricter constitutional maximum on the size of the

House. 56

Why, then, did the joint House-Senate committee insert a maximum? The lack

of extant records of the committee's deliberations requires us to speculate, but

the most plausible culprit is James Madison, one of three Representatives (the

other two being John Vining and Roger Sherman) appointed by the House. As

we have seen, 57 Madison's Federalist Papers presupposed an absolute

maximum on the size of the legislature:

Sixty or seventy men may be more properly trusted with a given degree of

power than six or seven. But it does not follow that six or seven hundred would

be proportionably a better depositary. And if we carry on the supposition to six

or seven thousand, the whole reasoning ought to be reversed. . . . In all very

numerous assemblies, of whatever characters composed, passion never fails to

wrest the scepter from reason. Had every Athenian citizen been a Socrates,

every Athenian assembly would still have been a mob. 58

Unsurprisingly, when Madison initially offered up to the first Congress his

proposed amendments to the Constitution, he integrated both minimum and

maximum: "the number shall never be less than , nor more than ." 59 Although

the full House eventually rejected the idea of a maximum, 60 Madison may well

have seen his appointment to the joint committee as a chance to slip his pet

provision back in -- especially given the previously expressed views of fellow

committee member Sherman in support of his earlier provision. 61

11

A final, more obvious explanation for the failure of the First Amendment

focuses on Delaware, the only state that ratified the last ten amendments

while rejecting the first. 62 Since each state was guaranteed at least one seat in

the House of Representatives, Delaware, with its small population and limited

room for growth, had selfish reasons to favor as small a House as possible --

indeed to endorse the hypothetical congressional bill that Patrick Henry had

conjured up in the Virginia ratifying debates decreasing the size of the House

from sixty-five members to thirteen. 63 Under Henry's nightmare bill, Delaware

could achieve equality of representation in both branches, as its delegates had

strenuously urged in the Philadelphia convention during the summer of 1787. 64

Prior to the convention, the Delaware legislature had gone so far as to issue

binding instructions to its delegates to oppose all attempts to modify the one

state, one vote rule of the Articles of Confederation. 65 This political explanation

for Delaware's vote against the original First Amendment gains added support

from the conduct of Delaware Representative Vining. When an early version of

Madison's First Amendment initially came up for debate on the floor of the

House of Representatives, Vining unsuccessfully sought to amend it in a way

that would assure small states more than proportional representation in an

expanded House. 66

Whatever Delaware's reasons for ultimately rejecting Madison's First

Amendment, we do well to remember that only a single state -- and a tiny one

at that -- stood between the ten "success stories" of Amendments III-XII, and

the "failure" of Amendment I.