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By Roz Rogoff

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.