The Off-Key Bard
History

This Day in History — Congress Passes the Bill of Rights

On this day in 1789

On September 25, 1789, Congress sent twelve proposed amendments to the states — not ten. One of the two that failed at the time became the 27th Amendment in 1992, 203 years later.

The Off-Key Bard stands in the First Congress of the United States, where the new Constitution has been in operation for only a few months. The government exists — but many Americans remain uneasy about what powers that government might someday claim.

"The Constitution created the government. Now Americans wanted clearer protections from it."

On this day in 1789, the First United States Congress approved a joint resolution proposing twelve amendments to the newly ratified Constitution and sent them to the states for ratification. This is remembered as the day Congress passed the Bill of Rights — but there's a wonderfully overlooked detail in the story: Congress didn't send the states ten amendments. It sent them twelve.

Two failed to receive the required ratifications. Ten became the Bill of Rights. And one of the two failures came back, two centuries later, in one of the stranger stories in American constitutional history.

Why the Amendments Were Needed

The Constitution had been signed only two years earlier, but its ratification had been deeply contentious. Anti-Federalists — opponents of the new document — argued that it gave the federal government substantial powers without explicitly protecting fundamental individual liberties. Several state ratifying conventions recommended amendments; others ratified only after supporters promised that a bill of rights would be quickly proposed. The promises helped get the Constitution ratified. The First Congress had to make good on them.

James Madison had initially been skeptical about the necessity of enumerating rights, reasoning that the federal government possessed only the powers granted to it by the Constitution and therefore couldn't logically violate rights it had no authority to touch. The ratification debates changed his mind. On June 8, 1789, Madison introduced his proposed amendments in the House — drawing on recommendations from the state ratifying conventions, Virginia's Declaration of Rights (authored by George Mason), the English Bill of Rights of 1689, and other existing declarations.

Madison originally proposed around 19 or 20 amendments. The House revised and reduced them, eventually approving 17. The Senate revised and reorganized them further, returning a list of 12. Both chambers agreed on September 25, 1789, and President Washington transmitted the twelve articles to the state legislatures for ratification.

The Twelve Articles

The first proposed article addressed the size of the House of Representatives as the national population grew, establishing a formula for apportionment. The second would have prevented any congressional pay raise from taking effect until after an intervening election of representatives had occurred. Articles Three through Twelve contained the protections that became the Bill of Rights — freedom of religion, speech, press, assembly, and petition; the right to keep and bear arms; prohibition on quartering soldiers; protection from unreasonable searches and seizures; due process and double jeopardy protections; rights in criminal proceedings; civil jury trials; prohibition on excessive bail and cruel and unusual punishment; a declaration that the listed rights did not constitute an exhaustive list; and reservation of unenumerated powers to the states or the people.

This means the amendment we now call the First — protecting religion, speech, the press, assembly, and petition — was actually Article Three in the package Congress sent out. What we call the Second Amendment was Article Four. The numbering shifted when the first two articles failed.

Article One — Never Ratified

The first proposed article failed to receive the necessary ratification and has never become part of the Constitution. The formula it proposed for House apportionment would actually have been superseded by population growth regardless — there is no practical upper bound it would have handled.

Article Two — 203 Years Later

The second proposed article — preventing congressional pay increases from taking effect immediately — also failed to receive sufficient ratification in the founding era and was generally understood to be dead. Crucially, however, Congress had set no expiration date on the proposal.

In 1982, a University of Texas undergraduate named Gregory Watson was writing a paper on the Equal Rights Amendment when he came across the forgotten Article Two. He argued in his paper that, because no expiration date had been set, the amendment was technically still pending ratification. His professor was unimpressed and gave him a C.

Watson spent the next decade writing letters to state legislators around the country, one by one, making the same argument. State after state ratified the dormant amendment. On May 7, 1992 — 203 years after Congress had originally proposed it — Michigan became the 38th state to ratify, crossing the three-quarters threshold. Article Two became the 27th Amendment to the Constitution.

Watson later received his A from the University of Texas. The transcript correction was made in 2017.

What the Bill of Rights Did — and Didn't Do

The ten amendments ratified on December 15, 1791 — when Virginia became the tenth state to ratify, completing the required three-quarters — established a foundational constitutional principle: certain individual protections would be explicitly enumerated and shielded from federal interference.

They did not, at first, apply to state governments. In 1791, the Bill of Rights constrained only the federal government. It took the Fourteenth Amendment, ratified in 1868 after the Civil War, to open the path for the Supreme Court to apply Bill of Rights protections against state and local governments through a process called selective incorporation — a development that continued throughout the 20th century and is still being litigated today.

Nor did the adoption of these protections mean the United States suddenly fulfilled their ideals for everyone. In 1791, slavery remained legal, women lacked equal political rights, and Indigenous peoples occupied a deeply contested position outside much of the constitutional system. The history of American constitutional rights would continue through amendments, legislation, court decisions, and generations of struggle over who possessed those rights and what they meant in practice.

But the amendments approved by Congress on September 25, 1789 established something enduring: a written declaration that government power would exist alongside written limitations on how that power could be exercised. The argument over what those limitations mean has not stopped since.

"A government formed, its powers defined,
Yet liberty remained in mind.
Twelve were proposed, and ten endured —
A promise written, though not yet secured."

History reminds us: September 25 is sometimes described as the day Congress "passed the Bill of Rights," but the distinction matters — Congress proposed the amendments; the states ratified them. On September 25, 1789, twelve amendments left Congress. Two years later, ten of them had become the Bill of Rights. And two centuries after that, one of the ones left behind finally made it in too.

Sources

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