During the debate tonight, Gov. Chris Christie made a typical constitutional law mistake:
I don’t think the founders put the Second Amendment as number two by accident. I don’t think they dropped all the amendments into a hat and picked them out of a hat. I think they made the Second Amendment the second amendment because they thought it was just that important.
That is entirely wrong. On September 25, 1789, the First Congress proposed twelve Amendments to the Constitution. (In what must have been a crazy legislative week, the Judiciary Act of 1789 passed the Senate on September 21, and was signed into law on September 24, 1789.)
In 1791, Amendments (or articles as they were referred to) three through twelve were ratified. “Article the first,” which discussed representation in Congress was never ratified. “Article the second,” which concerned congressional pay raises was ultimately ratified in 1992 as the 27th Amendment. “Article the third,” which talks about free speech and religion, became the First Amendment, but it was not the first proposed Amendment. Ditto for the right to keep and bear arms. It was proposed fourth, but became the Second Amendment because “Article the first” and “Article the second” were not ratified.
In class this morning, as I walked my students through the entire Constitution, I made this point very clear, that the First Amendment was originally Third. That lesson came in handy this evening.
I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here, here, here, here, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.
Disclosure: I advise the Rand Paul campaign.