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.
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.