Notes on the Vermont Constitution
This document contains my personal notes about certain portions of the
Vermont Constitution.
The full Vermont Constitution is also available
online. The Vermont Constitution Explained Page
may be of some interest as well.
Contact the Webmaster if you have
different interpretations of the text I touch upon. I may include a
“dissenting opinion” section in the future.
These notes were written by the Webmaster, and you can view his credentials.
Chapter I, Article 1 – All persons born free;
their natural rights; slavery prohibited
The Vermont Constitution, first written in 1777, was the first to abolish
slavery. Though it never mentions blacks (or Negroes, for that matter), and the
Article is general enough to mean that no citizen in Vermont shall be a slave to
anyone else without their consent, whether born here or not (note the curious
exception, though, for those under the age of 21), it is clear that Article 1 is
meant to abolish the specific slave trade of the time.
Vermont’s history is sprinkled with anti-slavery groups, events, and
individuals. It is well-known for being one of the last stops in the
Underground Railroad (see the Underground Railroad
Project for more info). That is not to say, however, that Vermont was or
is a state without prejudice.
The Vermont Colonization Society was formed to aid in the effort to create a
nation in Africa for freed slaves, and to bring civilization to that continent.
That nation, now Liberia, was partly colonized by 11,000 or so ex-slaves sent
overseas from Vermont. It was one of the stated goals of the VCS to send all
blacks back to Africa. Whether this goal was well-intentioned or racist is hard
to say – sensibilities were much different in the early 1800’s. The VCS clashed
with the Vermont Anti-Slavery Society, whose goal was the elimination of slavery
and the incorporation of blacks into society, rather than their removal.
Go to this point in the Vermont
Constitution.
Chapter I, Article 3 – Freedom in religion; right
and duty of religious worship
This article is in curious contrast to that of the United States Constitution’s 1st Amendment or even
that of, say, the Alaskan
Constitution (Article 1, section 4, which simply states “No law shall be
made respecting an establishment of religion, or prohibiting the free exercise
thereof”). If nothing else, it is curious in its length. But even more curious
is its admonition to all Christians that the Sabbath ought be observed, and
church attended. The inclusion of so much detail would seem to indicate that
the authors were attempting to ensure that prior abuses be specifically
prohibited (such as being compelled to attend services, help pay a minister, or
be denied a civil right on the basis of religion). The inclusion of the duties
of a Christian would seem to indicate a compromise of some kind on the verbiage,
perhaps to placate some religious bloc. Unfortunately, since this copy of the
Constitution has been “cleaned up,” it is hard to tell if this article has ever
been changed or replaced, though the language suggests that it may have come
from the original document.
Go to this point in the Vermont
Constitution.
Chapter I, Article 7 – Government for the people;
they may change it
The “common benefit clause” is one of the ways that gay couples who wish to
marry argue that bans on same-sex marriages should not be prohibited by
Vermont. The argument is that marriage is a common benefit which may not be
afforded one type of individual or family over others. The case went before
the Vermont Supreme Court in November 1998 and was decided in December 1999
(yes, more than a year later).
The Vermont Supreme Court’s decision is regarded as somewhat of a victory for
both the homosexual community and by groups opposing gay marriage. The decision
states that homosexual couples must be afforded the same rights and benefits as
married couples, though it did not require that the existing marriage statutes
be simply expanded to include same-sex marriage. Instead, it gave the
Legislature the opportunity to decide how to deal with the details. There are
basically two choices: either include gay couples in the existing marriage
statutes, or create a class of union for same-sex couples (and, perhaps,
heterosexual couples not wishing to marry) which affords them all the state
protections that marriage does. It is unclear of such a partnership would have
the same rights, benefits, and obligations as marriage at the federal level.
This decision is unappealable, since it relies on rights established in the
Vermont Constitution, and not the U.S. Constitution.
In January, 2000, the Legislature opened with the Baker case first on the
list of issues to deal with. After several well-attended meetings to hear
public sentiment, which was varied and advocating all possible decisions, the
committee, on February 10, 2000, decided on an 8-3 vote to recommend that the
full legislature pass a bill in support of domestic partnership over same-sex
marriage. After many close votes and packed public hearings, the Vermont House
passed a bill granting the right to Civil Union for same sex couples. The
Vermont Senate made several small changes to the bill, which were accepted by
the House, and on April 27, 2000, the governor signed the bill into law. The
first civil union licenses were issued with much fanfare on July 1, 2000.
An archive of news stories concerning
Civil Unions is available on this site.
The votes of the Representatives and Senators on the civil unions issue
played a prominent role in the elections of 2000, with several groups
concentrating political power to defeat Republicans and Democrats who supported
the measure. Many Vermont politicians lamented the outside influence that
brought negative campaign materials to some races for the first time.
Go to this point in the Vermont
Constitution.
Chapter II, Section 56 – Oaths of allegiance and
office
Recent speculation about the legitimacy of the oaths of office of judges and
other officers in Vermont, and hence the Constitutionality of their holding
office, recently prompted me to contact the Vermont Secretary of State for
clarification. This Section, as well as Article
6, Clause 3 of the U.S. Constitution, require oaths of office. The Secretary
redirected my inquiry to the State Archivist who said, to paraphrase:
Judges and other officers take oaths as required by the U.S. and Vermont
Constitutions. Neither document requires the taking of the oaths to be recorded
and filed. Traditionally, however, they were noted and filed in the Archives in
the Secretary of State’s office. For some recent years, there is no record of
the oaths in the Archives. It is not known if that meant that the oaths were
not recorded or if recorded oaths were misdirected and are in storage elsewhere.
Regardless, oaths were administered, and to avoid confusion in the future,
specific processes were put into place to ensure the oaths are recorded and
stored in the Archives.
Go to this point in the Vermont
Constitution.
Chapter II, Section 64 – Punishment at hard
labor
Interestingly, the Vermont Constitution mentions the death penalty several
times (here, the term is obfuscated with “sanguinary punishment”). In perusing
the Vermont Code,
I’ve only found one mention of the death penalty – in Title 13, Chapter 75,
section 3401; for treason. If I find any other references, I will note them
here – otherwise, Vermont is not a death penalty state. Title 13, Chapter 221
also has details about how and where an execution is to be carried out. The
method is electrocution. Interesting, if chilling, reading.
It is also
interesting to note that in Vermont’s treason statutes, it is a crime not to
report treasonous activity, punishable with five to ten years in prison and/or a
$2000 fine; upon notification of such activity, the accused is to be taken under
arrest without warrant, and taken immediately to a judge to answer the
charges.
Chapter II, Section 68 – Laws to encourage virtue
and discourage vice; schools; religious activities
This article was, in 1997, used by the Vermont Supreme Court to effectively
destroy Vermont’s existing property tax system. In a suit brought on the behalf
of a child in a property-tax poor town, the Court ruled that all Vermont
children have a right to an education, and that that education must be equal
across all towns. I don’t think anyone can argue that equal money necessarily
means equal education, but it an easy yardstick, and the Justices essentially
said that the state must come up with a way to ensure that all per-student
spending measures up to this imperfect yardstick. The result is that the
legislature has enacted a statewide property tax.
In this plan, the state will tax all property all towns at the same rate to
pay for schools. Towns may assess additional taxes to pay for municipal
services. Towns may also assess additional taxes to pay for “extra” schooling,
but if they do so, some portion of the additional tax must be put into the
statewide pool. For example, if Williston wants to spend an extra $1000 per
student, the tax must be raised to effectively raise $1250 per student – the
extra $250 goes to the state for redistribution (the figures are for
illustration only).
Some property-rich towns, where tax rates of 35 cents are not unheard of,
are not satisfied with the proposed $1.10 rate. Obviously, taxes in these towns
will be rising, and, in some cases, the amount per student will be falling. But
in poor towns where rates where very high, and per pupil spending very low, the
deal doesn’t sound so bad.
Obviously, there is a lot of mixed opinion – not all residents of rich towns
are opposed to a state-wide property tax, and not all residents of poor towns
support it. But something had to be done. The first reason is that the Court
has essentially said that not to do so is unconstitutional. The second is that
it is morally right.
The legislature had a few choices. They could do nothing and have the Court
dictate a plan; they could come up with a plan; or they could change the
Constitution. The first choice is hardly desirable to any party – the Court is
loathe to become a legislative body, and the populace would not likely be well
served if they, with no constituency to be accountable to, did so. The third is
also not desirable, as the Constitution is the basis of our state law, and not
to be tampered with lightly. The second choice, which is the one taken with Act
60, is the only reasonable course.
There are still a lot of issues to work out. How will the taxes be paid? How
will banks and mortgage companies handle escrow accounts? How many towns will
try to raise extra per pupil funds? Which towns will defy the law and face
sanctions, and what could those sanctions be? When will the first challenge to
the Court’s ruling and the legislature’s law come?