The Lost First Amendment
As this Heartland Institute article explained in November, 2015, an attorney in New Jersey named Eugene LaVergne spent years digging into the history of the original First Amendment. The very first article in our Bill of Rights – the article of amendment that was obviously most important to the Founding Fathers – was actually ratified in May, 1790. But the fact was buried in the Connecticut state archives for over two centuries.
The facts: the Connecticut House voted for the original First Amendment in October, 1789 and its Senate voted for its ratification in May, 1790, technically making Connecticut the 9th state that had voted for ratification out of 12 states at the time. That is exactly three-fourths of the states, the number required to ratify an amendment, according to Article V of the U.S. Constitution.
However, due to the transcribing error noted in the article above, by May 1790 the CT House claimed that it wanted to retract its earlier vote until the language could be corrected. As explained on page 6 of this book, the transcription error was not germane; everyone knew what was intended. Congressional districts could not be any larger than 30,000 people until the House reached 100 members; then no larger than 40,000 people until the House reached 200 members; thereafter, no larger than 50,000 people. That was the obvious design of the Founding Fathers.
Nothing changed when that same month (May 1790) Rhode Island joined as a state and its legislature also voted to ratify the original First Amendment. Now the Amendment had 10 votes of the 13 states at that time, more than the 75% required for ratification. Nor did Vermont’s joining the republic in March 1791 change anything. Its legislature also voted to ratify the original First Amendment; that was 11 votes of 14 states, or about 79%; still more than required. When Kentucky joined the republic in June 1792 and also voted to ratify, that made 12 votes of the 15 states – 80% of the states had ratified!
None of that matters now, as Mr. LaVergne learned when he brought a lawsuit in federal court. The circuit court ruled against him; then he brought his appeal in the 3rd U.S. Appellate Court in 2012. In this ruling, the court spends most of its time addressing LaVergne’s attempt to seek redress from present-day corrupt politicians, rather than from the State legislatures who alone have the constitutional power to provide relief, per Article V of the U.S. Constitution.
LaVergne’s silo of lawyer-hogswallop required that the court offer a similar trough of lawyer-hogswallop before finally, in Section II(e) of its ruling, offering seventh-grade civics: with respect to constitutional amendments, the courts lack jurisdiction.