During the 1939 sesquicentennial of the Bill of Rights, this non-ratification was discovered, and several states belatedly ratified the Bill of Rights. This also led to a rediscovery of the pending 1st and 2nd articles of amendment. This was pointed out to enough legislatures, who eventually ratified it as the 27th Amendment.
Madison on June 8, 1789 proposed a number of changes to the Constitution. They were not laid out as separate items, but specified at certain places in the text that changes be made.
His version of the representation provision specified one representative per 30,000 until there were _____, and that then there should be between _____ and _____ members, and that each state should have at least 2 representatives.
On June 28, a select committee of the House reported a version that filled in the blanks with 100 and 175. That is, the number of members would grow with the population until there were 100 members, and then be kept in the range of 100 to 175. Each state was guaranteed one seat.
The version finally passed by the House on August 24, had converted the amendments to 17 Articles (along with the modern amendment numbering).
1. Representation (pending)
2. (27th)
3,4. (1st)
5. (2nd)
6. (3rd)
7. (4th)
8. (5th)
9, 10,(6th)
11,12 (7th)
13 (8th)
14.No
State shall infringe on right to jury trial, conscience, freedom of speech, or press.
15. (9th)
16, 17 (10th)
The 1st Article was similar to the form sent to the States, except that it said "nor less than one Representative for every fifty thousand". That is, it would have established the super large house.
The Senate on September 9 passed 12 articles, which provided one representative per 30,000 until there were 100; and then would add one per 40,000 until there were 200, and then would add one for every 60,000. If this had been adopted, the House would have over 1000 fewer members than under the House version.
The final version agreed to by the two houses converted the floor into a cap. Instead of requiring one representative for every 50 or 60 thousand, it restricted it so that there were not more than 60,000.
In ratifying the amendments, the States would pass resolutions to the effect that they had ratifieded all the articles of amendment except the 2nd; or had ratified, 3rd, 4th, 5th, ..., 12th. All 11 states that ratified in the early period did ratify 3 through 12. NH, RI, NH, and PA did not ratify Article 2. PA and DE did not ratify Article 1.
This left Article One pending with 9 of 14 states having ratified the floating cap on the number of Representatives. The count is now 9 of 50. So right now, Congress could increase the House size to 8700. Ratification of the pending 1st Article from 1789 would reduce this cap to 5800 based on a population of 290 million.
Article Two was only ratified by 7 of 14 early ratifiers. It was late ratifications that resulted in it becoming known as the 27th Amendment.
Soon after the early ratifications it became customary to number the amendments that were ratified as 1st to 10th.
The reason that there were ratifications of the Bill of Rights in 1939 was because it was the sesquicentennial of their being proposed in 1789.
Massachusetts, et al could have ratified the other two proposed amendments in 1939. They may not have known this or thought it a stupid idea. Since it was a symbolic action, they might have presented it as ratifying the first 10 amendments.
But out of the came an awareness that there were the other two pending amendments from 1789. Someone began campaigning for ratification and convinced a few legislatures to ratify. News articles of this time usually had some somebody in Congress declaring that the ratifications were invalid because, because, because, you can't. But eventually it was realized that it was a popular idea with little actual consequence, and Congress passed a resolution recognizing the ratification.
