Will the Real "First Amendment" Please Stand Up?

[William Funk]

As a break from the abortion wars, this piqued my interest.  

According to The Constitution of the United States: Analysis and
Interpretation (1982 ed.), the resolution proposing the original twelve
amendments to the Constitution did not number them as Amendment No. 1, etc.
Rather they were Article I, Article II, etc. of the resolution.  Thus, the
faceless bureaucrat didn't renumber the amendments, because they were never
numbered as amendments at all.  All twelve were proposed on the same day,
and ten reached the necessary 3/4s ratifications the same day, Dec. 15,
1791.  Thus, they were numbered by the faceless bureaucrat in the order they
appeared in original resolution.  Interestingly, the 13th, 14th, 15th, and
16th Amendments were passed by Congress and ratified by the states
specifically identified by those numbers.  Apparently, they are the only
amendments passed with numbers attached.  

Sean suggests that "that the original cultural idea was to sequence in order
of presentation," but I don't know that.  I would have assumed that the
original idea would have been to sequence in order of adoption, and only if
more than one were adopted the same day would they be sequenced in the order
presented.  

But it's exam time, so I have a follow up question: if the 21st Amendment
repealed the 18th Amendment, why didn't the 18th cease to exist, so the 19th
would have become the 18th, and so on?  [Don't take this question
seriously].  

Bill Funk

Lewis & Clark Law School

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Friday, December 05, 2008 10:35 AM
To: conlawprof at lists.ucla.edu
Subject: Will the Real "First Amendment" Please Stand Up?

 

... would any of you be kind enough to answer a silly question for me?

 

When Congress sent what it called the Bill of Rights to state legislatures
to be ratified, the first two amendments, concerning representation in the
House and pay raises for members of Congress, didn't pass. Accordingly, the
Amendments that were passed were renumbered by, I assume, a clerk of some
sort. Hence, what we know today as the "First Amendment" was actually the
third when originally sent to the states. Well, somewhat recently (1992?),
one of the first two original amendments -- the one about pay raises --
finally passed. I presume it was again numbered by a clerk, because it
exists as the 27th Amendment today. 

 

I have three questions. One is completely moronic, the other only ignorant
and the third is devious. 

 

1. The moronic. Why isn't the 27th Amendment actually the 1st now, given
that it is highest in the order of amendments proposed, which appears to
follow logic of sequencing that they used in 1791 when the respective
amendments were passed?

 

2. The ignorant. Is there law regarding how amendments are numbered? Does
some statute give the right of a Congressional clerk's office (or something)
to do that? If one wanted to skip a number for, say, metaphysical reasons --
maybe wanting to avoid 666 or something -- or for political ones (e.g.,
avoiding 69), would this be allowed? Here's what I am asking: who numbers
these damn things anyhow and what governs the judgments?

 

3. The devious. Would an "originalist" say that the correct number for
amendment 27 is actually 1? I mean, the argument is that the original
cultural idea was to sequence in order of presentation, right? I mean, if 3
became 1 and 12 became 10 respectively, why would 2 go back to 27? If they
sequenced according to the order of approval (rather than of presentation),
the whole thing (1 through 10) would have been 1. 

 

Caveat: I realize that this is why philosophy is pointless. But if anyone
could shed light on 1 to 3 -- especially 2 -- I would be grateful.

 

Dr. Sean Wilson, Esq. 
Assistant Professor

Wright State University

New Website: http://seanwilson.org <http://seanwilson.org/> 

SSRN papers:  <http://ssrn.com/author=596860> http://ssrn.com/author=596860

 

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