This article explains which 1789 proposals were not part of the initial ten, why their paths diverged, and where readers can check the primary documentary record for verification.
What rights not listed in the Bill of Rights means: a short definition and context
Why the phrase “Bill of Rights” usually refers to the first ten ratified amendments (rights not listed in the bill of rights)
The phrase “rights not listed in the Bill of Rights” refers to protections or proposals that were part of the constitutional conversation in 1789 but did not appear among the ten amendments that states ratified by 1791. Congress proposed a total of twelve articles in 1789 and sent them to the states; ten were ratified quickly and are now known as the Bill of Rights, while two were not part of that initial group. For the original text and the list Congress transmitted, consult the National Archives transcript.
How Congress originally proposed twelve articles in 1789
In September 1789 the First Congress approved a set of proposed amendments and transmitted them to the state legislatures for ratification. The package contained twelve articles in the official transmission, and that submission is the primary documentary basis for what scholars call the original 1789 proposals. For a careful description of the First Congress proposals and the legislative record, the Library of Congress provides a concise historical overview that traces the submission and the debate that produced the twelve articles. The U.S. Senate historical overview also summarizes the First Congress submission and its context.
Library of Congress summary of proposed amendments
Short answer: two of the twelve articles Congress sent to the states in 1789 were not part of the ten amendments ratified by 1791. These are the Congressional Apportionment Amendment, which remains unratified, and the pay-limitation article, which was ultimately ratified much later as the 27th Amendment. The primary transmission of the twelve articles is preserved in the National Archives record.
Quick answer: Which amendments were not included in the Bill of Rights?
The one-sentence takeaway is that the Bill of Rights refers to the ten ratified amendments of 1791, while two other 1789 proposals had different fates: one stayed pending for more than two centuries before ratification, and the other remains pending to this day.
U.S. Senate Historical Office on the 27th Amendment
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For the original text and ratification record, see the National Archives transcript and Library of Congress resources.
The text Congress transmitted on September 25, 1789 lists the twelve proposed articles in order and records the formal language used by the First Congress. Reading that transcript shows which measures the framers and First Congress members prioritized in the immediate postratification period of the Constitution. The National Archives preserves the full transmission, and the Library of Congress provides context that helps readers map the twelve articles to the ten ratified amendments and the two items that followed different paths.
Which of the twelve became the ten ratified amendments
Scholars note that of the twelve articles sent to the states, ten achieved the necessary state ratifications by 1791 and together were labeled the Bill of Rights. Those ten contained protections such as freedom of speech, religion, and the press, as well as protections against unreasonable searches and seizures and rights in criminal prosecutions. Two submitted articles did not reach the threshold of state ratification at that time and therefore were not part of the initial Bill of Rights as commonly referred to in modern usage. For a listing of the first ten, see a concise guide to the first ten amendments.
Library of Congress description of the First Congress proposals
The Congressional Apportionment Amendment proposed a numerical formula to limit the size of the House of Representatives and to set ratios between representatives and population over time. The original text shows the drafters intended a mechanism for expanding the House as the population grew while imposing upper ratios for representation. For the precise language of the article as sent in 1789, consult the National Archives transcript of the proposed amendments.
Congress proposed twelve articles in 1789; ten were ratified by 1791 as the Bill of Rights. The pay-limitation article later became the 27th Amendment, while the Congressional Apportionment Amendment remains unratified and pending.
Why did states stop short of ratifying this apportionment formula? Historians point to practical objections to the formula, the difficulty of projecting long term population growth, and the changing political priorities of state legislatures after 1789. Analysis from constitutional scholars discusses these practical and political factors and notes that the apportionment article never reached the number of state ratifications required to make it part of the Constitution. The Wikipedia entry on the Congressional Apportionment Amendment provides a concise summary of its ratification history.
National Constitution Center analysis of the apportionment amendment
The item remains technically pending in state ratification records because Congress did not include a time limit in the 1789 submission and because the required number of states never completed ratification. Modern treatments of amendment status therefore list the apportionment article as an unratified proposal from 1789 with continuing historical interest.
National Constitution Center analysis
The pay-limitation article and the long road to the 27th Amendment
Original proposal on congressional pay
One of the twelve 1789 proposals would have restricted how and when changes to congressional compensation could take effect, with the aim of preventing members of Congress from voting immediate pay raises for themselves. That article did not reach ratification with the first ten, but the text survived in state records and later became the basis for a renewed ratification movement in the late 20th century. The original package and its wording are recorded in the National Archives transmission of the 1789 proposals.
How and when it became the 27th Amendment
The pay-limitation article eventually became the 27th Amendment after a unique, intermittent ratification history that spanned more than two hundred years. State legislatures at various times acted on the proposal, and in the late 20th century several states completed ratification steps that left the proposal with enough state approvals to be certified in 1992. The U.S. Senate Historical Office summarizes that long path and the documentary record that led to final certification as the 27th Amendment.
U.S. Senate Historical Office on the 27th Amendment
Commentators and legal references also document how the 27th Amendment resurfaced in public attention during the modern era, and secondary legal resources describe how the amendment now sits in the text of the Constitution as a later-completed piece of the 1789 proposals.
Legal Information Institute overview of the Bill of Rights and related amendments
Why those two proposals were handled differently: politics, process and practicality
State-by-state ratification dynamics
Scholars point to differences in state-by-state ratification dynamics as a central reason the apportionment article and the pay-limitation article had different outcomes. State legislatures in the 1790s had varying priorities, and some provisions proved harder to secure quickly. The First Congress record and later historical summaries explain that incomplete or slow ratification accounted for the immediate exclusion of two articles from the Bill of Rights.
Library of Congress First Congress records
Political priorities shifted after 1789, and debates over representation, federal power, and procedural details made some states reluctant to ratify certain technical provisions. Scholars emphasize that procedural complexity and changing political calculations, not a single decisive motive, best explain why those two articles did not join the initial ten amendments.
National Constitution Center discussion of historical explanations
Rights people often expect in the Bill of Rights – but that were addressed later or by courts
Examples of rights addressed by later amendments
Many protections that readers commonly associate with constitutional rights were not spelled out in the 1791 texts but were added or clarified later. Significant examples include equal-protection guarantees and voting-rights expansions that arrived through later amendments such as the 14th and 15th Amendments, and other voting-related amendments that followed. Modern legal summaries provide an accessible map of how those protections were incorporated after the original Bill of Rights. For additional reading on constitutional rights, see the site’s constitutional rights resources.
Congress.gov resources on the Bill of Rights
How judicial interpretation filled gaps over time
In addition to later amendments, Supreme Court doctrine has interpreted the original text and applied it to new factual contexts, sometimes extending protections or clarifying limits. Legal reference sources explain how a combination of later amendments and judicial interpretation produced the broader set of constitutional protections commonly discussed today.
Legal Information Institute overview
How to verify which rights are and are not in the Bill of Rights: primary sources and ratification status
Where to find the original 1789 text and state ratification records
To confirm which articles were sent in 1789 and which were ratified, start with the National Archives transcript of the Bill of Rights proposals, then consult the Library of Congress pages on the First Congress, and where relevant review the U.S. Senate Historical Office notes on later amendment ratifications for items such as the 27th Amendment. You can also consult this site’s full text guide for the Bill of Rights and the Archives Prologue blog on unratified amendments.
Using those official institutional pages lets readers match the 1789 transmission language with later state ratification actions and with modern amendment texts. Congress.gov and the Senate Historical Office provide ratification timelines and documentary citations that are useful for step-by-step verification.
A frequent error is treating later amendments or modern summaries as if they were part of the original 1791 Bill of Rights. That can lead to incorrect claims about what the first ten amendments contained. To avoid this mistake, always check the date of a claimed amendment and compare the text to the 1789 transmission record in the National Archives.
Secondary summaries sometimes omit the two 1789 proposals or conflate the twelve original articles with later amendments that were adopted in the 19th or 20th century. Readers should prefer primary documents or authoritative institutional summaries to reduce the risk of these misconceptions.
Legal Information Institute overview
Conclusion: what the omissions meant then and what questions remain today
Summary of the two articles not included among the first ten
In brief, Congress proposed twelve articles in 1789. Ten were ratified by 1791 and constitute the Bill of Rights; the pay-limitation article later became the 27th Amendment, and the apportionment article remains unratified and pending in state records. The documentary record in the National Archives and the Library of Congress supports those facts.
Open questions about ratification and historical impact
Historians continue to debate how the two omissions affected later amendment strategy and what the long pendency of the apportionment article tells us about early constitutional politics. Readers interested in digging deeper should consult the primary sources and the constitutional scholarship that interprets them.
National Constitution Center analysis
Two of the twelve articles sent to the states in 1789 were not part of the ten ratified by 1791: the Congressional Apportionment Amendment, which remains unratified, and the pay-limitation article, which later became the 27th Amendment.
Yes. Because Congress did not set a time limit in the 1789 submission, the apportionment article technically remains pending and could be ratified by the necessary number of states, though it has not been completed to date.
Primary sources are available from official repositories such as the National Archives and the Library of Congress, which publish the 1789 transmission text and related First Congress records.
For readers seeking deeper analysis, the National Constitution Center and the U.S. Senate Historical Office provide useful commentary and ratification timelines.
References
- https://www.archives.gov/founding-docs/bill-of-rights-transcript
- https://www.loc.gov/rr/program/bib/ourdocs/BillofRights.html
- https://www.senate.gov/about/origins-foundations/27th-amendment.htm
- https://www.senate.gov/about/origins-foundations/senate-and-constitution/congress-submits-first-amendments-to-states.htm
- https://constitutioncenter.org/blog/unratified-apportionment-amendment-1789
- https://www.law.cornell.edu/wex/bill_of_rights
- https://michaelcarbonara.com/contact/
- https://en.wikipedia.org/wiki/Congressional_Apportionment_Amendment
- https://prologue.blogs.archives.gov/2020/01/23/unratified-amendments/
- https://www.congress.gov/resources/display/content/The+Bill+of+Rights
- https://michaelcarbonara.com/bill-of-rights-full-text-guide/
- https://michaelcarbonara.com/issue/constitutional-rights/
- https://michaelcarbonara.com/first-ten-amendments-to-the-constitution/
