Did This New Jersey Lawyer Discover a Lost Constitutional Amendment?

This article was co-authored by G.C. Haskins.

Deep in the bowels of the Connecticut State Archives building rest several forgotten artifacts that could alter the destiny of the United States: evidence of a lost amendment to the Constitution, passed 225 years ago.

On Sept. 25, 1789, after months of heated debate, Congress gathered to vote on a final set of amendments to the newly approved U.S. Constitution. These amendments, which would forever be known as the Bill of Rights, affirmed a set of fundamental rights, including the freedom of speech and the press, the right to a fair trial, and the guarantee of states’ authority over all matters not explicitly granted to Congress in the Constitution.

Photo Credit: Shutterstock
Photo Credit: Shutterstock

Although most of us know of only 10 amendments in that first group, 12 were actually approved by Congress, including Article the First (AtF), which was meant to regulate the number of members in the House of Representatives so there would never be too few people controlling a nation of millions. Accordingly, Article the First established several tiers of representative ratios.

The final tier — as proposed in the Senate-approved version debated in August 1789 — stated the representation ratio for the House must never be “less than one Representative for every fifty thousand persons.” Today, there is roughly one representative for every 700,000 citizens.

On Sept. 24, 1789, just one day before Congress officially passed the Bill of Rights, Connecticut Sen. Oliver Ellsworth issued a report noting an agreement by Congress to correct an error in AtF. Congress agreed to change the word “less” in “the last line less one” of the amendment and insert “in its place” the word “more.”

The 12 amendments were passed by Congress the next day, and handwritten copies were ordered to be sent to all 13 states so their state legislatures could vote on the amendments as part of the ratification process.

However, the scribes who wrote the copies relied on false instructions reported in the House of Representatives’ official journal. In the House journal, Secretary of the Senate Samuel Otis erroneously declared the word “less” should be replaced “in the last place” in Article the First, rather than in the “last line less one,” which in modern language means “second-to-last line.” Every copy sent out to the states contained the wrong language, with the last passage now reading, “there shall not be … more than one Representative for every fifty thousand persons,” which is in total contradiction to what the Founding Fathers intended and voted on.

Several states agreed to ratify Article the First “as it was passed in Congress,” but three-fourths of the states must ratify an amendment before it officially becomes part of the Constitution, and for many years Article the First was thought to be one state shy of officially being ratified. Until now.

New Jersey resident Eugene Martin LaVergne, formally an attorney and politician, having discovered numerous errors in the popular histories written on the Bill of Rights, wondered if any states had ratified Article the First but had never reported the vote to officials in Washington, D.C. In 2011, he set out on an epic journey that took him to the National Archives, countless libraries and multiple state archives.

LaVergne claimed to have discovered records showing both houses in Connecticut’s General Assembly did in fact ratify Article the First in 1790. If true, that would mean AtF was ratified in 1791, when Vermont became a state and ratified all 12 amendments.

LaVergne was so convinced of his claim, he sued to force the federal government to recognize the amendment. The Third Circuit Court of Appeals rejected LaVergne’s suit, decreeing LaVergne did not have standing and the courts don’t have the authority to settle questions about whether amendments have been ratified. The court never disputed the accuracy of any of LaVergne’s historical claims.

In another strange twist, LaVergne has been embroiled in an ongoing legal battle in New Jersey, one that includes him being disbarred and convicted of unlawfully using a client’s funds. LaVergne says he’s innocent, and in an unprecedented move, an appellate judge has since released him from prison while the issue gets sorted out.

After hearing about LaVergne’s story, we began to investigate the veracity of his claims. Could there really be a lost amendment? After months of research and a trip to the National Archives, all the claims in LaVergne’s story checked out. Only one thing remained: Connecticut’s vote.

As we sifted through centuries-old documents in the dusty basement of the Connecticut State Archives, the story began to unfold before our very eyes. The Connecticut House of Representatives voted to ratify Article the First in October 1789, but the upper house in Connecticut delayed its vote until May 1790. In May, the upper house approved AtF, along with all the other proposed amendments, but now the House wanted to reject AtF because of the transcribing errors. The Senate rejected the idea the House could simply change its vote, and the two sides never agreed on a final position.

Legal experts consulted by LaVergne and by ourselves say a strong argument can be made that as soon as the upper house approved AtF, it officially became ratified in Connecticut, which means it’s now part of the U.S. Constitution as it was originally passed in Congress — without the scribal errors. Other legal experts say the Connecticut House had the right to reverse its vote. If the national government recognizes Connecticut’s ratification in 1790, the House of Representatives would have to expand from 435 representatives to more than 6,000 — a change that would alter America’s future forever.

Justin Haskins (Jhaskins@heartland.org) is editor of The Heartland Institute, a national free-market think tank headquartered in Arlington Heights, Illinois.
G.C. Haskins is a telecommunications expert and the founder of the Johnston Educational Foundation.

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