The Bill of Rights’ Missing Amendment

By Hans A. von Spakovsky & Marc Wheat

Tuesday, June 16, 2026

 

As we celebrate the birth of our nation 250 years ago — a moment at which we declared our independence from a powerful monarchy that was oppressing the American people — a “decent respect to the opinions of mankind” (as it says in the Declaration of Independence) justifies our looking back at our Founding documents to understand precisely where we came from and where we are today in preserving our republican form of government. One of those is, of course, the Bill of Rights, a crucial document outlining Americans’ constitutionally guaranteed rights and liberties that was essential to the ratification of the Constitution itself.

 

In retrospect, it’s easy to acknowledge our Constitution and Bill of Rights as the great achievements that they are. We ought to go further, though, and recognize how our foundational documents could have been even better — particularly when one considers the threats to our liberties and prosperity that we face today from a bloated administrative state. Specifically, our Constitution would have been much benefited had one of the amendments that James Madison proposed to the First Congress not been dropped from the final version of twelve amendments that were adopted by Congress and sent to the states for ratification.

 

Most Americans today don’t realize that the House of Representatives actually approved 17 of the amendments that Madison originally proposed in August 1789. But the Senate passed its own versions of the proposed amendments, and both houses of Congress finally settled on twelve, which were sent to the states. Ten of those were ratified by the necessary three-quarters of the states by the end of 1791.

 

One of the two proposed amendments not ratified was an apportionment formula specifying the size of the population each House member would represent, initially set at one representative per 30,000. The other amendment that was not ratified, at least not by the end of 1791, said that any law passed by Congress to raise congressional salaries would not take effect until after an intervening election.  That amendment was not ratified until 1992, after a revival campaign started by a college student.

 

But there was one amendment that Madison originally proposed that was not sent to the states and which, looking at the problems and ailments of our federal government today, we can say without hesitation should have been in what ultimately became the indispensable Bill of Rights. Included in Madison’s proposal to the House on August 24, 1789, was the following, labeled as “Art. 16”:

 

The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.

 

The obvious purpose of this amendment was to prevent each of the three branches of government from intruding into the specific powers and authority given to the other two branches by the Constitution. Separation of powers is an essential principle in the Constitution, designed to ensure that the executive, legislative, and judicial branches check each other’s power.

 

But since the Progressive and New Deal eras, the federal government has abandoned the careful balance of power that the Constitution strikes among the three branches in significant ways — and in ways that the amendment might have prevented.

 

To give one such example, for decades, executive agencies have been exercising power reserved to the judiciary by Article III of the Constitution. For instance, the Securities and Exchange Commission (SEC) long adjudicated violations of the law or SEC regulations with in-house “administrative law judges” — an invented category of judge that was not part of the judiciary and incompatible with our separation-of-powers framework. It wasn’t until 2024 that the Supreme Court somewhat restored the proper role of the judiciary in SEC v. Jarkesy. In that case, the Court said the Seventh Amendment requires that a defendant be able to request a trial in an Article III court in certain cases, rather than be subjected to an in-house “trial” by an SEC employee.

 

The executive branch itself has not emerged from the constitutional breakdown unscathed. In 1935, the Supreme Court, in a case called Humphrey’s Executor v. U.S., wrongly bestowed Congress with authority over the executive branch, ruling that it could insulate the heads of certain federal agencies — arms of the executive branch — from presidential removal.

 

But Article II vests the entire executive power of the U.S. government in the president alone. Yet, for 90 years, certain government officials have purported to exercise executive power outside of presidential control. Fortunately, the Supreme Court appears poised to finally overrule this constitutionally erroneous precedent in Trump v. Slaughter and restore a president’s power to run the executive branch, including supervising (and terminating) the heads of executive agenices. If the president wins the lawsuit, the century-long progressive experiment of separating executive power from the president and putting it into the hands of unaccountable bureaucrats will be at an end.

 

Finally, the judicial branch has for too long ceded its duty “to say what the law is” to the same administrative state that exercised Congress’s lawmaking power without the constitutional authority to do so. Under the Chevron doctrine, courts deferred to agency interpretations of supposedly ambiguous statutes and, under another precedent, Auer v. Robbins (1997), even agency interpretations of their own “ambiguous” regulations. Just two years ago, the Supreme Court rightfully restored the power of the judiciary to interpret statutes for themselves in Loper Bright v. Raimondo, although it still hasn’t fixed the agency deferral problem (and there is no pending case that would give the Court that opportunity).

 

Had Madison’s proposed amendment been ratified, these attacks on the Constitution’s separation of powers might have been stopped in their tracks. At the very least, “Art. 16” would have given those attacking these violations of the Constitution in the courts more ammunition. The principle of nondelegation — that one branch cannot pass its powers off to another — is essential to America’s system of ordered liberty. Although the structure of the Constitution is the greatest safeguard of our freedom, it’s clear that this amendment would have immeasurably strengthened that structure.

 

The Supreme Court itself needs to take every opportunity it has in the cases that come before it to restore the strict separation of powers between the three branches that is outlined in our Constitution’s structure. It is also not too late to reconsider placing Madison’s nondelegation amendment in our Constitution to reinforce that imperative.