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About this blog: In January 2002 I started writing my own online "newspaper" titled "The San Ramon Observer." I reported on City Council meetings and other happenings in San Ramon. I tried to be objective in my coverage of meetings and events, and...  (More)

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The lost 11th Amendment

Uploaded: Mar 11, 2015
After I wrote my blog on the Bill of Rights I received an email from Scott Neuman, about my blog on Interpreting the First Amendment, where I described the Bill of Rights as the first ten Amendments. He wanted to correct the number of Amendments in the original Bill of Rights to 11 (actually 12, but more on that below).

"In fact, there are 11," Neuman wrote. "Strange but true. Bold truth shows why. Feel free to share."

I was puzzled by his claim of an eleventh Amendment. I looked up the 11th Amendment on the Government's Constitution website. It is on separation of Judicial Powers of the Federal Government from State governments. It was ratified in 1798.

Neuman said the original 11th Amendment, the one that was lost, was part of the first ten that were ratified in 1791, with the 11th ratified in 1792, but, Connecticut, the final state to ratify it, did not send it back to Congress and it was only discovered two years ago.

There is precedent for adding a lost amendment to the Constitution 200 years later. The 12th amendment from the original Bill of Rights was finally ratified in 1992 and added to the Constitution as the XXVII Amendment.

Article. XXVII
Proposed 1789; Ratified 1992; Second of twelve Articles comprising the Bill of Rights
"No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

So what was in the original 11th Amendment that has lain dormant for over 220 years? According to Mr. Neuman, "The amendment says we are to have one Representative in the U.S. House of Representatives for every 50,000 people in the USA per district per state. Article the First of the Bill of Rights is below, voted and created by our Congress to go out to the states:"

"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, 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."

But Mr. Neuman takes a big liberty with his interpretation of this lost Amendment. He changes the word in the last sentence from more to less, which he claims was a "scrivener's error." It was not.

This Amendment was NOT to limit the number of Citizens represented by each Congressperson. It was to limit the number of Congresspersons. Neuman's self-imposed change of more in the last sentence to less, alters what this Amendment was designed to do, keep the number of representatives down. Neuman cannot change a word because he doesn't like what it means.

The original clause in the Constitution that this Amendment would have replaced states, "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;"

The clause says, NOT EXCEED one for every 30,000. It does not say there must be one for every 30,000. The lost Amendment INCREASED the number to one for 50,000 or more, NOT less.

The Amendment was written exactly as intended and it would have reduced the amount of representation from one for 30,000 citizens to one for 50,000. Its purpose was not to limit the number of residents per Representative, but to limit the number of Representatives to Congress so the House of Representatives would not get too big.

As of now the number of Representatives in the Congress is 435. If the Constitution was changed to one representative for every 50,000 residents, that could increase the size of Congress to 6400.
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Comments

 +   1 person likes this
Posted by Frederick John LaVergne, a resident of another community,
on Mar 11, 2015 at 7:29 pm

Not the original "eleventh amendment"....it was the First of the proposed amendments in the "Articles of Amendment" - (not referred to as "the Bill of Rights" until much later)

The amendment was subject to a scrivener's error - you are entitled to your own opinion, but not your own facts.

A committee of six persons made the final proposals for three recommended last-minute changes.

Two were copied from the handwritten notes years later in the "Journals" and "Annals".

The change in the third place was ratified by voice vote, and involved changing "less" to "more" - and this is directly provided on our site, in Oliver Ellsworth's own hand - IN THE LAST PLACE BUT ONE...

That does not mean "the last place of the last line" - and, in fact, that argument has been used in the past to cast it aside, because it was mathematically imperfect. In the correct language, as voted in Congress, and as recorded by the same man who wrote the longest correctly punctuated and grammatically correct sentence in our canon law (article 27 of the Judiciary Act), in the image you can read for yourself. Beckley, the clerk, was a political appointee and a screw-up, with an HONORARY pbk and Degree from William & Mary.

There is more to this mistake, but the law is that what Congress proposed is the language of the Amendment - not what someone mis-copied on a broadside. The Ellsworth Report is the framework for this amendment.

Further - with the discovery by EML of Connecticut's and Kentucky's ratification, passage of Article the First into law is fact...not conjecture.

As a RATIFIED Amendment, it's no longer what we "may" do, "might" do, or even "should" do.

It is what we MUST do.

The Constitution was written to protect the things we DON'T always like - like the speech of another...or another's religious preference.

You need to know all the facts. You're under-informed, as are many, because the promulgation of Article the First not only means BETTER representation of "We, the People", it breaks the duopoly...with a district size of only 50,000, you hardly need five million dollars to "BUY" your seat in Congress.

There is much more to this story, a tale that amounts to a modern-day treasure hunt - the search for the original supporting documents. It's been a many-year adventure, with exciting discoveries, and even a few moments of horror at the possibility of subterfuge.

YOU cannot change a word because YOU don't like what it means.

Ellsworth's report is readily available.

Here it is in digital form, in it's entirety.

Web Link


If you think the original PRINTINGS are infallible, perhaps you could explain why the bound volumes say "cruel and unusual IMPRISONMENTS"....including the copy that formerly belonged to George Washington, which the Daughters of Mount Vernon just paid 10 million dollars for at auction. They were a little shocked to learn of this mistake.

The scrivener's error is historic fact, well known in the circles of Constitutional Scholars...what was NOT known was the crossing of the 75% threshold for ratification.

That was discovered in 2011 by EML.

Click the link - read for yourself.

Not just "telling you" the truth....SHOWING YOU.

Had to shorten the post - the role of John Vining is also critical to the story - see the site Scott referenced in his post, unless they deleted it, again.

Frederick John LaVergne, "Democratic-Republican" for Congress, NJ CD3 2016

"Stand for what's right, or settle for what's left" - FJL


 +   1 person likes this
Posted by Frederick John LaVergne, a resident of another community,
on Mar 11, 2015 at 7:32 pm

I am sure you intend only to share the truth with your readers.

You are welcome to reach out to us to see the rest of the Story, Mz. Rozgoff.

I think you will be astonished, both at how this was locked away from sight for so many years, and for the positive implications it represents.

Give it a fair and balanced read...the whole story in exhaustive detail is due out any day.

Fred.


 +  Like this comment
Posted by Just do what is best!, a resident of Avila,
on Mar 11, 2015 at 9:09 pm

If it will make the USA strong like it was under Regan, lets make some change! 10,11,12 Amendments? Just do what is best to for our country.


 +  Like this comment
Posted by Cholo, a resident of Livermore,
on Mar 12, 2015 at 6:25 pm

I believe that it's impossible who was running the USA while President Regan was in charge. He had Alzeimers Disease as President:

Web Link

Ronald Regan Jr. has a good idea that the President exhibited symptoms of onset of the disease early into his presidency.


 +  Like this comment
Posted by Cholo, a resident of Livermore,
on Mar 12, 2015 at 6:26 pm

Correction: ...impossible to determine who was running the USA while President REgan was in charge.


 +  Like this comment
Posted by I miss you so much. , a resident of Another Pleasanton neighborhood,
on Mar 12, 2015 at 6:37 pm

Oh my good friend Cholo- where have you gone??


 +  Like this comment
Posted by San Ramon Observer, a resident of San Ramon,
on Mar 12, 2015 at 9:44 pm

San Ramon Observer is a registered user.

None of us here are qualified to diagnose President Reagan's medical condition when he was in office. He was diagnosed with Alzheimer's many years later.

Roz


 +  Like this comment
Posted by San Ramon Observer, a resident of San Ramon,
on Mar 12, 2015 at 10:52 pm

San Ramon Observer is a registered user.

Mr. LaVergne,

Here is exactly what James Madison wrote in Section LVIII of "The Federalist Papers."

"The people can never err more than in supposing that by multiplying their representatives beyond a certain limit they strengthen the barrier against the government of a few. Experience will forever admonish them that on the contrary after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views by every addition to their representatives." (Madison, 1788, p. 351)

That's what the Amendment was designed to prevent. It is designed to limit the number of representatives in Congress as the population grows. So "more" has to be the correct word.

Madison, J. Hamilton, A, Jay, J. (1788, republished 1987), Penguin Books.


 +   2 people like this
Posted by Cholo, a resident of Livermore,
on Mar 15, 2015 at 3:22 pm

reagan is deceased...may he rest in peace.

i don't believe that the record re: when reagan was diagnosed with alzheimers will ever be known. sooner or later somebody will pop up with a comment that he was also gay...just like pope benedict...who cares?

i believe that he did have alzheimers...not many folks if anybody truly cares what i do or don't believe...no harm in speculating...everybody else does...

shucks...reagan could have been a child molester...who knows? famous people get accused of everything.




 +  Like this comment
Posted by Scott Neuman, a resident of Dublin,
on Mar 15, 2015 at 7:20 pm

You are correct that Madison didn't want the amendment. He was most certainly not the only person working on the 12 Amendments but he did dislike this one. Sherman and our 2nd Supreme Court justice Ellsworth did want the amendment and it was voted in committee in 1789 after Madison comment to change the last More to less and move the More to the 2nd paragraph. In the second paragraph, the natural growth progression and representation mathematically work. Otherwise, it's just wrong.

In addition, a recent post talks about Adams knowing the country would grow dramatically and wanted the amendment, 1 Representative for every 50,000 people per district.
2/9/15 - Not much to report. There was a private conversation that the founding fathers never planned on the country growing so large and than use it as an excuse to say we shouldn't follow the ratified Congressional Apportionment Amendment. To do that, we'd have to say the founding father never thought our country would grow large but in fact, John Adams stated in 1788 that "... Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, and which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind." Adams understood what would be the growth of our great country and so no reason to remove the lock of 1 Representative for every 50,000 people per district as a ceiling for the House of Representatives. Growth was coming and that lock was there for a reason


 +  Like this comment
Posted by Scott Neuman, a resident of Dublin,
on Mar 15, 2015 at 7:44 pm

Roz, so there are no misunderstanding. The Bill of Rights, as voted on by Congress and presented to the states to be ratified or not contained 12 Amendments. There is no dispute on that subject. The Archivist of the USA's own website displayed as such in the past. A screen capture is at Web Link.

We are told 10 of the twelve passed by 1791. What we were told is wrong. I won't go into why we are told only 10 past. All those people have died. What current history shows us is now known to wrong. One amendment ratified with Connecticut never being recorded as delivering their vote or their vote not being recorded. In fact, Connecticut did vote and approve all 12 amendments (the Pay Amendment had to wait till 1992 to have enough votes and worked hand in hand with the Congressional Apportionment Amendment). So you have enough states as of 1791 76%, voting for the amendment. 80% if you count Kentucky voting in 1792. All this is now certified history and can't be disputed. We have the original voting records, we have the original committee records and we know Blakely made a Scrivners error since Congress didn't approve what he copied. If it makes some of you happy, Madison got Blakely his job. It's considered Madison might have asked Blakely to screw with it buy as I mentioned, everyone with any knowledge is dead but hard Archivist copies tell us the true story and a change by laws of our country should be followed until such time as the 1 Representative for every 50,000 people per District is a constitutional law. What other Constitutional laws would you not like to follow. Stand for one, stand for all. We have ways to change our laws. We don't just ignore the Bill of Rights we don't like.


 +  Like this comment
Posted by Scott Neuman, a resident of Another Pleasanton neighborhood,
on Mar 15, 2015 at 8:09 pm

Roz, if you take a look at this 1789 mark up of the 17 proposed amendments, this version shows no "More". That was a mistake Ellsworth caught and corrected in committee to be placed in the 2nd paragraph, not the 3rd and Congressional records and Ellsworths papers support that. Regards. Web Link


 +  Like this comment
Posted by Scott Neuman, a resident of another community,
on Mar 15, 2015 at 8:17 pm

Lastly, here is a link from the Archives of the USA that shows the twelve amendments with the More in the wrong place. Web Link


 +  Like this comment
Posted by Frederick John LaVergne, a resident of another community,
on Mar 16, 2015 at 3:36 am

San Ramon Observer...While, on July 8th, 1789, Madison made clear HIS intention to limit the overall size of the House, he was not only shouted down by his fellows, he was threatened with bodily harm by James Jackson of Georgia, who was recorded in the diary of William Few to have threatened to drag Madison out into the street and shoot him down like the dog he was - no idle threat from a man who died from infection from his ninth successful duel, and who charged British cannon on horseback with a saber and single-shot pistol. Madison was the person who hired the clerk, Beckley, who made the Scrivener's error in sending instruction to the three "human copying machines", the scriveners hired to produce the copies in hand writing sent officially to the States' legislatures. Interesting to note, that the mistake creates what Madison wanted, by some interpretations, and calls to mind a story from the drafting and approval of the Declaration of Independence, were a kerfuffle took place between Jefferson and John Adams with respect to "inalienable" versus "unalienable". I will leave it to you to look at the images available of the parchment document to see what was written. The scene is memorialized in a musical, "1776", and concludes with "John Adams" saying - 'no matter, I'll just speak to the printer about it.' Why does that matter? Guess who ADAM'S clerk was? Madison.

Read Elliot's for more of the story. The intention was to make a natural progression, beginning at 40k (reduced to 30k by voice vote in the original Constitution body by recommendation of none other than George Washington - in fact, you can even see on the original where "40,000" was scraped off the vellum and replaced with "30,000". This was done because it was not mathematically impossible for Delaware to find herself with no seat at the table, were 40,000 to remain the minimum). Under Article the First, the language read as a mathematical progression from 30,000 per district, raised to 40,000 max when 100 members in the house, with a floor of 30,000, and again, and FINALLY, raising the "ceiling" to 50,000 and "floor" to 40,000 once the number of Representatives reached 200 or greater. That's what the ORIGINAL language, as proposed, voted, and approved - and as appears in the handwritten notes of Oliver Ellsworth, linked to above.


 +  Like this comment
Posted by Frederick John LaVergne, a resident of another community,
on Mar 16, 2015 at 3:44 am

What Madison preferred was not what was voted - Ellsworth proves that. So does Math.

The Federalist Papers are only held in high esteem because they were sold as a text book by Harvard University - there are also Anti-Federalist Papers...but they don't necessarily support the agenda being presented by that august body, the History Department at Harvard...who, by the way, didn't know in the 1930's that Massachusetts never ratified the Articles of Amendment. In fact, they "post-ratified" in a ceremonial sesquescentennial celebration - as did three other States - two of which were unaware they had already done so. (perhaps three)

In fact, Harvard owns no copyright on the Federalist Papers, themselves - only on their commentary.

If you're taught from a textbook, and the textbook is wrong...how accurate is your knowledge going to be? Go to the source material...not the "annals" or "journals" transcribed nearly 40 years after the fact.

If you think scrivener's errors don't happen, why does the Washington Copy of the "Laws of the United States" reference "Cruel and Unusual IMPRISONMENTS"? In fact, Jefferson's copy has it lined through and corrected in the margin. Guessing he or his nephew caught it. Certainly looks like TJ's handwriting.


 +  Like this comment
Posted by Frederick John LaVergne, a resident of another community,
on Mar 16, 2015 at 3:51 am

Madison's Statement you mention is one of the very reasons why Richard Henry Lee of Virginia proposed to run James Monroe, a war hero, against Madison for the House Seat...

Madison held his draft of the Constitution initially to be "perfect", and was taken to task for it - it was only by promising to propose amendments HIMSELF - a "Bill of Rights" - and some finagling by his clerk, Beckley, mentioned above - that he squeaked by Monroe for the seat...and, as he KEPT that promise, it was he who proposed that amendments be considered - proposed in June of 1789. Again, when he tried to limit the HOUSE as the Senate was limited, he met with fierce - nearly violent - opposition - and, on the surface, he backed down. Did he and Beckley take that next step after the fact? We'll never know. We DO know the real language. That is what was proposed...that is what was voted in Congress. Just because someone got the bumper sticker wrong, it does not change what is the law.

In fact, further proof that the transmitted copies are wrong is in the Delaware records. Stay tuned. Book coming with detail.


 +  Like this comment
Posted by Frederick John LaVergne, a resident of another community,
on Mar 16, 2015 at 3:56 am

The "Journals" and "Annals" 'clean up' the exchange between Jackson of Georgia and Madison with the statement "Several desultory comments were noted to pass between the gentleman of Georgia and the gentleman of Virginia."

Wm. Few, who sat with Jackson, would certainly be in a position to record what was said.


 +  Like this comment
Posted by San Ramon Observer, a resident of San Ramon,
on Mar 16, 2015 at 12:23 pm

San Ramon Observer is a registered user.

Scott & Fred,

I have moved on to other subjects of greater interest to my local readers. You two can continue to argue your Constitutional positions without me.

Roz


 +  Like this comment
Posted by Rhel, a resident of Pleasanton Meadows,
on Mar 16, 2015 at 10:28 pm

Rhel is a registered user.

Oh, I was enjoying that!


 +  Like this comment
Posted by David, a resident of Danville,
on Mar 17, 2015 at 6:45 pm

Frederick,
In your first post on this subject you say "IN THE LAST PLACE BUT ONE" as what was written by Ellsworth, but your own link to the image of his handrwritten notes proves that you misquoted him.

In fact, he clearly wrote "in the last line but one", not "in the last place but one". The "last line but one" means "the line before the final one" according to the Cambridge Dictionary ... Web Link

So, what Ellsworth really said, in his own handwriting, is that the word should be changed from "less" to "more" in the line prior to the last line of the article.

This seems very clear and directly contradicts your opinion on the whole subject.


 +  Like this comment
Posted by San Ramon Observer, a resident of San Ramon,
on Mar 17, 2015 at 7:34 pm

San Ramon Observer is a registered user.

David,

Thank you so much for catching that.

Roz


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