Ruminations — Disrespecting the Vermont Constitution, 18 VTBJ, Winter 2018-#14

AuthorPaul S. Gillies, Esq.
PositionVol. 39 3 Pg. 14

RUMINATIONS — Disrespecting the Vermont Constitution

Vol. 39 No. 3 Pg. 14

Vermont Bar Journal

Winter, 2018

We Pledge Allegiance to the Vermont Constitution

Paul S. Gillies, Esq.

At the “Clio in the Courtroom” conference in 1986, Professor Patrick H. Hutton began his talk by describing his reaction to the requirement that he sign a loyalty oath before he could begin teaching at UVM. A statute requires all superintendents, principals, teachers, professors, instructors at any publicly-supported institution of learning or headmasters and teachers at independent schools to swear to “support the U.S. Constitution, the Vermont Constitution, and all State and federal laws.”1 Hut-ton explained that he had not read the Vermont Constitution before, and signed the pledge in blind faith, committing himself to support whatever it said.

Professor Hutton later read the Vermont Constitution closely and wrote a compelling essay on what he found (and had pledged his devotion to) in that document.2

The educator’s oath was first required of educators and school administrators in 1931, essentially in the form of the law as it appears today. It was driven by a national movement, attempting to prevent the spread of communism in American life. A 1935 amendment enlarged the idea, providing a teacher “shall not indulge in, give or permit, either directly or indirectly, any instruction, propaganda or activity in connection with such school, university, college or normal school, contrary to or subversive of the constitution and laws of the United States or of the state of Vermont, but shall so organize, administer and conduct such school as most effectively will promote the ethical character, good citizenship and patriotic loyalty to the United States and to its constitution and laws.”3

In 1964, the U.S. Supreme Court struck down the Washington State loyalty oath, which prohibited “subversive persons” from serving in government or in the schools. These oaths were offensive to the federal constitution, according to the opinion drafted by Justice Byron White, on the grounds of vagueness, uncertainty, broadness, and due process. The Washington oath regarded a person as subversive who abets or advises another to commit an act which assists “a fourth person in the overthrow or alteration of constitutional government.” Justice White wrote that the court didn’t question proper methods to “safeguard the public service from disloyal conduct,” but “measures which purport to define disloyalty must allow public servants to know what is and is not disloyal.”4

In Vermont, Attorney General James Oakes later concluded the 1935 amendment was unconstitutional, and in 1968 the legislature repealed it, leaving the original language from 1931. Lyman Hunt was a member of the House in 1931 when the act was first passed, and, still a member in 1968, told how the men who fought in World War I had opposed the law, feeling that they did not need to prove their loyalty to the Union with an oath.5

Section 56 (Oath of Allegiance)

Every person of good character, who comes to settle in this State, having frost taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; . . . .[6]

When nonresidents purchase property in Vermont, intending to relocate here, they should take the oath of allegiance first, if we read the constitution strictly. The oath is found in Section 56: You __________ do solemnly swear (or affirm) that you will be true and faithful to the State of Vermont, and that you will not, directly or indirectly, do any act or thing injurious to the Constitution or Government thereof. (If an oath) So help you God. (If an affirmation) Under the pains and penalties of perjury7

This isn’t done, of course. Dozens of closings occur every week without a thought of giving the purchasers the oath. This is one of several provisions of the Vermont Constitution that aren’t respected. Perhaps it’s worthwhile to consider how we can justify the avoidance of constitutional prescriptions. This is the constitution, after all, not some mere statute.

As Justice Marilyn Skoglund wrote in her opinion in In re Town Highway No. 20 (2012), the “Vermont Constitution is the fundamental charter of our state and is preeminent in our governmental scheme. It is the expression of the will of the sovereign people of the state and confers upon the government limited powers while simultaneously protecting the basic freedoms of the governed. As such, the constitution stands above legislative and judge-made law, and the rights contained therein speak ‘for the entire people as their supreme law.’”[8]

Having pledged allegiance to the constitution, how then can we overlook what it requires?

Chief Justice Isaac Redfield addressed this conundrum in 1853. He wrote, “it seems to me that the right to interfere with aliens holding real estate in this country, strictly and appropriately belongs to the national, and not to the State sovereignty. It goes upon the basis of some defect in allegiance; and allegiance is a matter pertaining altogether to the national sovereignty. They have the exclusive control of all relations between this country and foreign nations, or their citizens. And the States are expressly prohibited, in the United States Constitution, from attempting any stipulations, treaties or compacts, upon the subject.”9 Respect for the Vermont Constitution is overridden by respect to the federal constitution.

Why an oath? We are all bound to respect the constitution and laws, and we don’t need to commit to that respect by taking an oath.

The Vermont Voter’s Oath, taken by every resident as a prerequisite to voting in all elections, does not go so far as to prohibit anything that would injure the constitution, as the oath of allegiance does. The voter’s oath provides, “You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge will most conduce to the good of the same, as established by the Constitution, without fear or favor of any person.”10 The voter is wedded to the constitution’s definition of what constitutes “the good” of the State of Vermont, as filtered through conscience, and must act fearlessly, impartially, and responsibly, in voting.

The Conundrum

Which parts of the Vermont Constitution no longer apply, or may safely be ignored, and who decides that? Who will parse out what’s enforceable and what isn’t and on what grounds? We should have an annotated Constitution giving fair warning to those who would too assiduously attempt to adhere to the letter of the language of the constitution that not all that appears t here is true or enforceable. Must we await litigation to learn what we must respect?

Counting Ballots

Section 47 describes how ballots for statewide offices should be counted: The voters of each town shall, on the day of election for choosing Representatives to attend the General Assembly, bring in their votes for Governor, with the name fairly written, to the Constable, who shall seal them up, and write on them, Votes for Governor, and deliver them to the Representatives chosen to attend the General Assembly; and at the opening of the General Assembly, there shall be a committee appointed out of the Senate and House of Representatives, who, after being duly sworn to the faithful discharge of their trust, shall proceed to receive, sort, and count the votes for Governor, and declare the person who has the major part of the votes, to be Governor for the two years ensuing. The Lieutenant-Governor and the Treasurer shall be chosen in the manner above directed.11

The votes for Governor, Lieutenant-Governor, and Treasurer, of the State, shall be sorted and counted, and the result declared, by a committee appointed by the Senate and House of Representatives.

Vermont election law no longer gives the Constable any role in elections. Election officials don’t count ballots; ballot-counting machines do it. The results are tallied and reported to the Secretary of State, who calls a committee together of the major parties and independent candidates, who then certify the result of the election to the legislators. The committee does not sort or count or tally; it certifies.12

This isn’t so important that it needs to be listed among the great failures of the legislature to respect the constitution. But here the statutes have drifted away from what the fundamental law requires, and it bespeaks a lack of care in the amendment process or in statutory design.

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