Our very last constitutional amendment — the 27^th Amendment — was ratified this week (May 7) in 1992 when Michigan became the 38^th state to approve it. Call it the long, lost, last amendment because it was originally proposed 203 years earlier, in 1789, when it was among the original 12 amendments Congress sent to the states for ratification.  The states subsequently approved 10 amendments, which became our Bill of Rights.

The two amendments that the states failed to approve were actually the first two proposed by Congress. The proposed First Amendment dealt with how to determine the size of the House of Representatives. The proposed Second Amendment — now our 27^th — prohibited Congress from voting itself a pay raise without an intervening election.

How an amendment that had been forgotten for 200 years finally became the law of the land is a fascinating story that begins with Gregory Watson, a student at the University of Texas, who was looking for a topic to write a paper on and stumbled across the un-ratified congressional compensation amendment.  He found that of the 11 states needed for ratification in 1789, six had already done so, and in 1873 Ohio had joined them, angered by Congress’s huge retroactive pay increase of that year.

Intrigued, Watson wrote a paper on the amendment’s history that included an analysis of how to get this long-dead amendment ratified.  His teacher, Sharon Waite, was unimpressed and gave him a “C” on the paper, but Watson still believed his cause had merit and so he began writing petitions to state legislatures, arguing his case. Astonishingly, the state of Maine bought his argument in 1983 and Colorado followed suit in 1984.

That caught the attention of state officials in Wyoming, who announced that their state too had previously ratified this amendment — in 1977 — also as a protest against a previous congressional pay raise.

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The American journey from being subjects of the King of England to a self-governing republic under the United States Constitution was a trip with many detours.  One of the most significant of those detours, the ratification of the Articles of Confederation and Perpetual Union, occurred this week (March 1) in 1781.  It gave America its first national government, and like most first stabs at something, there was room for improvement — as members of Congress quickly recognized.  Indeed, when they sent the Articles to the states for ratification back in 1777, they wrote an accompanying letter that said, in effect, “We know this isn’t perfect, but it was really hard to create a government that accommodated your 13 different sets of interests and priorities.”

The larger problem with the Articles, however, was that they were toothless.  Since the colonists had fought their revolution in great part because they wanted to rid themselves of a powerful “central government,” namely King George III and Parliament, they weren’t about to replace one such central power with another. As a result, the Articles gave most powers to the state governments, including the power to tax, regulate trade, issue currency and raise standing armies.  What’s more, the Articles made no provision for a strong executive — indeed, there was no executive at all, just a unicameral legislature that could ask the states for money and troops, but had no enforcement powers should the states refuse to comply (and they usually refused).

The inadequacies of the Articles were clearly recognized during the war, which America managed to win in spite of them, but in the war’s wake, serious Americans began re-evaluating the effectiveness of the Articles. Perhaps some were motivated by the fact that — adding insult to injury — the Treaty of Paris ending the war with England languished for months because the states never bothered to send enough representatives to Congress to approve it.  Under the Articles Congress had no power to command their attendance!

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Since government power and the Constitution are on everyone’s mind these days, and since the Constitution greatly interests me, I thought this week I would add my two cents.

First, the Constitution did not establish a democracy, it established a republic.  In a democracy the people rule, which means that our elected representatives would have to do whatever the majority of their constituents wanted them to do on a particular issue.  That could — and, in fact, before the Constitution was ratified, it did — threaten the rights of the many minority groups within the 13 states.  Protecting minority rights is one reason the Founders created the Constitution.

By contrast, in a republic, elected representatives are tasked with balancing what the majority wants against their own best judgments as experienced legislators.   The Founders had a healthy skepticism about the people’s willingness to subjugate their own self interests for the good of the whole so they created “auxiliary protections” (James Madison’s words) against pure democratic government.

Second, the Founders did not create a Constitution designed to keep government small. They created a Constitution designed to keep government limited, which is a very different thing.  As to those responsibilities that the Constitution assigned to the national government — foreign policy and national defense, for example — the Founders wanted the government to be big enough — to have enough power — to meet those responsibilities. But the Constitution also limits the government’s responsibilities; it gives it a finite number of enumerated powers and responsibilities, and the list is not long.  All other powers (there are specific exceptions) are supposed to belong to the states.

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