Vail Daily column: What the Constitution says |

Vail Daily column: What the Constitution says

Editor’s note: This is the seventh part of a series.

The Bill of Rights. The Ten Commandments of the U.S. Constitution (although there were originally 12 — well sorta — which we will visit later). Sequentially, the Bill of Rights — the first 10 Amendments to the Constitution — follow first the Preamble, then the Articles — but in many eyes anyway, the BoR packs the biggest wallop.

If you’ve followed along with me till now, you’ll recall that the Preamble is the setup, the “we the People” stuff that established who we are, what we stand for and who we aspired as a fledgling nation to one day be. The Articles are the administrative stuff, establishing the structure of the government that would drive and support the rumbling train of the new nation.

Next, there is the Bill of Rights, the Big Ten of the Constitution, the most celebrated part of this most fundamental instrument of government, the cozy prairie home of the most-cherished guarantees of personal autonomy and individual freedom. The BoRs is where the rubber of the new paradigm of governance met the cobbled 18th Century roads and which continues to guide our paths into the fully budded 21st century.

Had this “first” First Amendment been adopted, the House would now consist of more than 6,000 members instead of the current 435. Criminy! Can you even conceive of the potential gridlock!

What, then, do they say?

Well, allow me to first cluster, then “de-cluster” for you. The Bill of Rights assures such guarantees as freedom of (and from) religion; freedom of speech; freedom of assembly; that bugaboo, the right to bear arms; freedom from police oppression; freedom from bearing witness against yourself; and freedom of the press. Most of these first 10 Amendments are blissfully short.

So let’s start at the beginning, which Julie Andrews taught us is a very good place to start. But, oh yeah, as I previously mentioned, there were originally 12 apostles of the Bill of Rights which were ultimately culled to 10? Where did the Waldos of the other two go? The short and sweet answer is that while Congress passed 12 proposed amendments, only 10 were ultimately ratified (or formally adopted) by the states. If you’re like me, you’re asking, “So what did the other two — the two that were not adopted — say?”

It is interesting to note that the two that were not ratified were the original Amendments one and two. So Amendment three became one, four became two and so on. So when you hear one pontificate that the First Amendment is first because it was the holiest of holies; well, not so much. What was preeminent to the Congress anyway were the two that were initially sunk.


Original Amendment One proposed a ratio by which to determine the number of people to be represented by each member of the House of Representatives. The original first amendment (not ratified) read:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Had this “first” First Amendment been adopted, the House would now consist of more than 6,000 members instead of the current 435. Criminy! Can you even conceive of the potential gridlock!


The second of the originally proposed 12 Amendments that was road kill on the way to ratification read:

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

To the sharp-eyed, this may look a bit familiar. Though not ratified at the time, the original second amendment finally made its way into the Constitution in 1992, ratified as the 27th Amendment, a full 203 years after it was first proposed. Some things, I ’spose, take time.

So, in the end (or at the beginning, I imagine, depending on how you look at things), there were the Holy Ten. And they began like this, with a single run-on sentence, with what we now know as the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Sort of a pocket Hercules of a little thing, isn’t it?


What the First Amendment says is that Congress may make no law endorsing one religion over another, that the United States shall be established as a secular nation. What is there, too, is that every American shall be free to practice the religion of his or her choosing or, importantly, to practice no religion at all. This is what is meant as freedom of — and freedom from — religion. Next, the First Amendment provides that speech may not be restrained, that one is free to speak one’s mind and heart and the press shall be equally free, open and uncensored. There is assured the right to assemble (peaceably, of course — there is not right to riot), and significantly, the right to level gripes against the government and “petition for the redress of grievances” against it.


What this meant was that if a citizen believed he or she had been harmed by governmental action, he or she had the right to seek to be made whole by the government that had wronged him. Not only did this mean that one had the right to seek compensation from the government if wronged but, perhaps more importantly, one had the right to be heard.

In the next part, we will pick up speed, starting with the much-debated Second Amendment and the right to bear arms.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, or

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