McClaughry: Revive the Council of Censors

by John McClaughry

In the wake of American Independence, the 13 former colonies set out to fashion constitutions for their new states. So, too, did the freemen of the New Hampshire Grants, the Republic of Vermont.

At the founding convention in Windsor in 1777, the most popular constitutional model was that of Pennsylvania, adopted the preceding year. Historians refer to Pennsylvania’s as the most radical of the First Wave of constitutions, because it championed democratic rule by the people, exalted legislative power, and gave short shrift to separation of powers and checks and balances.

Chapter I of today’s Vermont Constitution, today’s Bill of Rights, mirrored Pennsylvania’s. It also included an unique feature of Pennsylvania’s, establishment of a Council of Censors “that would assure that the freedom of the commonwealth may be preserved inviolate forever”. Pennsylvania omitted the Council from its more conservative “Second Wave” constitution of 1789, but it remained in Vermont’s constitution until 1871.

John McClaughry

The idea behind the Council was that some body of respected citizens should be charged with reporting to the General Assembly, governor and freemen if the legislative and executive branches of the government “had performed their duty as guardians of the people, or assumed to themselves, or exercised, greater powers than they are entitled to by the constitution.” It also was to judge whether taxes had been justly laid, revenues properly spent, and laws duly executed.

The Council was composed of thirteen men (none of them legislators) elected every seventh year for one year terms. The Council had power to impeach officials and to call a constitutional convention. It could recommend changes in the law to the legislature, but its main value was to raise and discuss issues relevant to the constitution and operation of the people’s government.

A major cause of the Council was ending the unicameral General Assembly and replacing the Executive Council with a 30-member Senate, which the Constitutional Convention adopted on a fifth try in 1836 (116-113!).

Advocating for two great issues finally led to the Council’s extinction in 1870. One was proportional representation in the House, in place of the historic one town-one vote rule. That was accomplished under a Federal court order in 1965.The other was women’s suffrage. The 1870 Constitutional Convention voted down that outlandish Council of Censors proposal 233 to 1.  Half a century later (1920) the U.S. Nineteenth Amendment settled that question.

So much for the life and times of Vermont’s original Council of Censors. The idea of the Founders, however, is worth reexamining.

The Vermont Constitution’s Bill of Rights is a splendid manifesto of 18th Century liberalism, affirming our democratic form of government, the protection of one’s property and the right to self defense, the freedoms of speech, press, assembly and debate, jury trials, and the inviolate accountability of elected officials to the people.

How well are we observing those constitutional principles today? Remember, our Constitution is the “rule book” for living in a free society, agreed to by our forebears and their descendants to this day. If legislators responding to fashionable causes and interest group pressures go too far in diminishing our rights, would it not be useful for a high-prestige, non-political Council of eminent men and women to come together every seventh year, or more often, to assess our fidelity to our constitutional principles, and recommend corrective action?

My proposal is to legislate a statutory, not constitutional, Council of Fidelity, composed of say 13 distinguished citizens of judicious reputation. They would meet for a year every seventh year (or less), take stock of our fidelity to the Constitution, and issue recommendations to the legislature for changes that we might need to keep faith with our rule book as we travel further into the issues and challenges of the 21st century.

This may seem to some as a conservative scheme, as it rests upon the principles of the ancient – but still in force – 1786 Constitution. The Council might object to land use regulation that confiscates the value of a person’s property without offering just compensation, or to legislation stripping freemen and women of their Article 16 right to “bear arms for the defence of themselves and the state.”

But such a Council might also recommend that women should have a far reaching right to abortion (an issue now settled by the “reproductive autonomy” Amendment of 2022.)  Or that law officers should be held more accountable for invasions of people’s and prisoner’s rights (qualified immunity).

The Council’s task would be to stimulate a recurring debate over great principles and how today’s Vermonters choose to recognize and protect them.

It wouldn’t cost much, and I daresay the Council’s work would promote a healthy debate about the future of our state and its fidelity to our guiding principles.

Categories: Commentary

10 replies »

  1. This might be an option but finding thirteen judges every seven years, that weren’t liberal and that construed the constitution to what they wanted, would be difficult in this state. Also you would have to have a legislature that would listen to the people unlike what we have now that change the laws to what they perceive is right!

  2. Re: “My proposal is to legislate a statutory, not constitutional, Council of Fidelity, composed of say 13 distinguished citizens of judicious reputation.”

    Distinguished citizens of judicious reputation? By who’s measure? By Statute or Amendment, this smacks of a politically elitist recommendation. Another ‘council’… really?

    “Boards and Commissions: Click on a specific board or commission below for more information on the more than 180 boards and commissions and to view current membership.”

    Don’t we already have ‘healthy debate’ right here in River City? This doesn’t seem to me to be ‘a conservative scheme’. But it does seem to be a scheme to further circumvent the power of the people – distinguished, judicious, or otherwise. If anything, we need fewer boards and commissions. Let free enterprise be free.

    “The key insight of Adam Smith’s Wealth of Nations is misleadingly simple: if an exchange between two parties is voluntary, it will not take place unless both believe they will benefit from it. Most economic fallacies derive from the neglect of this simple insight, from the tendency to assume that there is a fixed pie, that one party can gain only at the expense of another.” ― Milton Friedman

  3. In 1871 how fast did news travel? Not from major city to city but to towns, villages, farms. Now we have near instantaneous reporting available country wide. A Free Press was America’s watchdog. As the Founders intended. We had Edward R. Murrow, Walter Cronkite and the like.Then came the advent of Fox fake news, the denial of mass school shootings, altered videos, stories proved false but not acknowledged, unfavorable news NOT reported claims of being ‘entertainment’, not ‘news’. A Black president not being able to go thru the nomination for a Supreme Court Justice IN TEN MONTHS while a notorious liar (When The Washington Post Fact Checker team first started cataloguing President Donald Trump’s false or misleading claims, we recorded 492 suspect claims in the first 100 days of his presidency. On Nov. 2 alone, the day before the 2020 vote, Trump made 503 false or misleading claims as he barnstormed across the country in a desperate effort to win reelection.
    This astonishing jump in falsehoods is the story of Trump’s tumultuous reign. By the end of his term, Trump had accumulated 30,573 untruths during his presidency — averaging about 21 erroneous claims a day.
    What is especially striking is how the tsunami of untruths kept rising the longer he served as president and became increasingly unmoored from the truth.
    Trump averaged about six claims a day in his first year as president, 16 claims day in his second year, 22 claims day in this third year — and 39 claims a day in his final year. Put another way, it took him 27 months to reach 10,000 claims and an additional 14 months to reach 20,000. He then exceeded the 30,000 mark less than five months later.) is able to ram thru a nomination FIVE WEEKS before the election and get confirmed less than TWO WEEKS before the election. Any body, such as Ole’ Ethan suggests, would just be another opportunity to stack things, as they do with our courts, our voting district gerrymandering, the buy out of independent news sources. SHAME.

    • Still confused about what constitutes male physiology as compared to female physiology, “retired nurse”? Apparently so, and therefore any further posts to VDC are merely tolerated via this nation’s permanent, unalterable, God-given right to Freedom of Speech, but shall remain not worth even reading due to the garbled, unhinged, extremist content they contain.


    • Re: “What is especially striking is how the tsunami of untruths kept rising the longer he served as president and became increasingly unmoored from the truth.”

      30,000 ‘untruths’? Would you be kind enough to list just 30 of these infringements?

      • Bt the way: if you’re referencing the Wahington Post’s claim of 30,573 infringments over four years, be sure to explain the difference between a ‘false’ claim and a ‘misleading’ claim.

      • For example, would you characterize the claim that Russia colluded with Trump to win the election as ‘true’, ‘false’ or ‘misleading’?

      • “WASHINGTON (AP) — With Donald Trump facing felony charges over his attempts to overturn the 2020 election, the former president is flooding the airwaves and his social media platform with distortions, misinformation and unfounded conspiracy theories about his defeat.

        It’s part of a multiyear effort to undermine public confidence in the American electoral process as he seeks to chart a return to the White House in 2024. There is evidence that his lies are resonating: New polling from The Associated Press-NORC Center for Public Affairs Research shows that 57% of Republicans believe Democrat Joe Biden was not legitimately elected as president.

        Here are the facts about Trump’s loss in the last presidential election:

        Biden’s victory over Trump in 2020 was not particularly close. He won the Electoral College with 306 votes to Trump’s 232, and the popular vote by more than 7 million ballots.

        Because the Electoral College ultimately determines the presidency, the race was decided by a few battleground states. Many of those states conducted recounts or thorough reviews of the results, all of which confirmed Biden’s victory.”

  4. However, by using a misleading statement, the person has the intention of throwing everyone else off. The end result of lying and misleading is the same. The only difference is that you don’t technically say something that could be proved as untrue.