Why didn't the original 12 amendments make it into the Bill of Rights?
It’s a big day in American history as December 15 marks the moment that the states ratified the Bill of Rights in 1791. But did you know the Bill, as presented to the states, had 12 amendments and not 10?
On September 25, 1789, Congress approved a Senate-proposed version of a Bill of Rights first written by James Madison. Like any bill that goes through Congress, Madison’s initial proposal was rewritten and debated extensively.
The Bill of Rights wasn’t just any bill. It presented a huge, initial challenge to the newly ratified Constitution. Madison started off with 20 amendments with a separate preamble to the Bill of Rights. (You can read the Preamble on the National Archives website.)
The House of Representatives debated and changed Madison’s proposal and approved a version with 17 amendments. Then, the proposed Bill of Rights went to the Senate, where it underwent more extensive revisions, and emerged as a document with 12 amendments. Congress then approved the “final” Bill of Rights, as a joint resolution, on September 25, 1789.
But the 12 amendments didn’t all make it through the state ratification process. And in fact, the original First and Second Amendments fell short of approval by enough states to make it into the Constitution.
The original First Amendment stated a formula for determining the size of the House of Representatives based on the population of the United States in 1789. That amendment could still be revived, but it wouldn’t be practical in the year 2013. The original Second Amendment was about determining when Congress can change its pay. It took a very long time, but the original Second Amendment became the 27th Amendment when it was ratified in 1992.
Madison also wanted the original Bill of Rights inserted into the original articles in the Constitution at appropriate points. Congress decided to add them all, at the end of the document, as a list of amendments.