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Constitution & Legal

    Protecting Our Constitutions
    Each year in mid-September Americans celebrate the U.S. Constitution. Each generation’s never-ending task is to stand firm against usurpation – and eventual destruction - of both federal and state constitutions by irresponsible legislators and adventuresome judges. (September 2012)

    The Future of the “Affordable Care Act”
    The Obama “Affordable Care Act” is still alive after Chief Justice Roberts rewrote it into a tax law, but it faces a rocky road before it actually starts collecting taxes from people without government-approved insurance. (July 2012)

    Revisiting Vermont’s Constitution
    Vermont's rightly celebrated Constitution of 1777 is based on principles and character traits shared by the people who wrote and approved it. When those principles and traits fade away, our Constitution may fade with them. (July 2010)

    Taxation by Unaccountable Strangers
    If there's anything worse than being taxed by our accountable legislators, it's being taxed by unaccountable strangers. That's precisely the deal that recent legislatures have given Vermonters, in violation of a fundamental constitutional principle: no taxation without (accountable) representation." (October 2008)

    The Constitutional Agenda of 2007
    The four-year term constitutional amendment will doubtless emerge again in 2007. The legislature should propose it for the Governor-Lt. Governor team, reject it for legislators, and take the four lower statewide offices off the ballot entirely. (November 2006)

    Private Property At The Mercy of Government
    In a 5-4 decision, the U.S. Supreme Court amends the Bill of Rights to allow governments to use eminent domain for any (alleged) public purpose. Shorn of the 5th Amendment's protection against government confiscation, Vermonters may want to fashion a state constitutional amendment that protects them against both actual and regulatory takings. (June 2005)

    Constitutional Infidelity
    Two ancient Vermont Supreme Court cases clearly establish the constitutional requirement: "no oath, no office." But Justice John Dooley has never produced any evidence that he ever subscribed to his oaths of allegiance and office. Why should he be retained? (March 2005)

    Rescue The Constitution from the Court
    Justices John Dooley and Denise Johnson are serial offenders at concocting hitherto unspuspected constitutional "rights" and imposing judicial mandates on the legislature. The only way to discipline such Supreme Legislators is for the elected legislature to deny them reelection to new six-year terms. Now is their opportunity. (February 2005)

    The One Big Choice Plan
    Every two years Vermonters face campaigns for six statewide positions. Wouldn't it be better if this confusion was reduced to one meaningful choice? (December 2002)

    A Refresher Course on the Constitution
    Sen. Peter Welch wants to rewrite the Constitution for political advantage. Enough already! (October 2002)

    Sorrell Takes on Microsoft
    Vermont's attorney general jumps into the Microsoft court case to oblige its competitors - and shows high tech firms what they can expect when doing business in Vermont. (October 2001)

    Vermont's Smoking Gun
    The 46-state tobacco settlement is on increasingly shaky legal ground. Its demise would cost Vermont $24 million a year, but we'd get our integrity back. (August 2001)

    "Thus Saith The Lord": When A Supreme Court Should be Replaced, Not Obeyed
    Leading defenders of Vermont's runaway Supreme Court claim that everybody must do just what the Court says. Not at all, reply Hamilton, Marshall, Jefferson, Jackson, Lincoln, Teddy Roosevelt, and Ethan Allen Institute President John McClaughry. (October 2000)

    Reining in an Errant Court
    Vermont's Five Supreme Legislators badly need to be reined in. But how? (October 2000)

    More from the Five Supreme Legislators
    The Vermont Supreme Court has instructed the legislature to enact domestic partnership laws -- or else the Court will decide that gays and lesbians have a "right" to marriage. (December 1999)

    Regulation and Taxation Through Litigation
    The legislature won't raise taxes or increase regulation? No problem. Have the Courts do it. (August 1999)

    Plain Language Baffles Supreme Court
    Vermont's Five Supreme Legislators have struck again, misinterpreting another 1786 constitutional provision to thwart religious school choice. (June 1999)

    Stopping the Next Predatory Lawsuit
    First tobacco, next firearms. Predatory trial lawyers are hoping to get rich from both industries. All they need is a cooperating attorney general or mayor. (March 1999)

    Who Owns The Vermont Constitution?
    The defenders of the Brigham Justices seem to think the Constitution belongs to the Supreme Court. It does not. It belongs to the people (February 1999)

    The Brigham Justices: Should They be Denied New Terms?
    Here's the full argument for why the justices who perverted the Constitution in Brigham should be excused from further service. (January 1999)

    Who Controls the Supreme Court?
    In a democratic government based on popular sovereignty, there must be a popular check on all branches of government. Who controls the supreme court? It's the duty of the legislature to do it, by disciplining justices who lose sight of the constitution. (September 1998)

    Sharp Practice
    Over the past 220 years the Vermont General Assembly, like any democratically-elected legislative body, has done some fine and memorable things, and some foolish and costly things. (April 1998)

    When the People Surprised the Politicians
    Twice controversial constitutional amendments passed the legislature with huge majorities, only to be rejected by the people at the polls. (February 1998)

    Constitutional Principles: The Legislature, the Court, and Education Financing
    Why the Supreme Court can and should be ignored on educational finance. (April 1997)

    The Dooley Principle
    Justice John Dooley comes up with a new legal theory: your life belongs to the state. (March 1994)

Protecting Our Constitutions
(September 2012)

The United States Constitution, adopted this week in 1787, was rightly described by Prime Minister Gladstone (1887) as “the most remarkable work… to have been produced by the human intellect at a single stroke… in its application to political affairs.”

Our written Constitution is the rulebook for the ordering of political society. It defines the purposes for which it was written, the frame of government, the method of election of the President and Congress, and the powers bestowed by “we, the people” upon the Congress, the Executive, and the Judiciary. The Bill of Rights, added in 1791, has become a great charter of individual liberty for Americans.

A key principle is that once adopted, the Constitution shall be amended only by a prescribed process - never by “usurpation”. As President Washington said in his Farewell Address, “If in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates; but let there be no change by usurpation… it is the customary weapon by which free governments are destroyed.”

After adoption of the Bill of Rights, two more amendments were approved in 1804, dealing with court jurisdiction and election of the president. From then until the Civil War, the Constitution remained intact.  Since 1866 the U. S. Constitution has been amended fifteen more times.

The first threat to the Constitution today comes from judicial usurpation - the growing tendency of judges to fashion enforceable constitutional rights from thin air. This too often happens both at the Federal and the state levels.

In Vermont, there are two recent, flagrant examples of judicial usurpation. One was the sudden discovery by the Supreme Court, in 1996, that the Vermont Constitution required that public education be financed from substantially equal revenue bases.

For over two hundred years no one had ever suspected such a requirement lurked in the Vermont constitution. The justices, without even a trial, instructed the legislature to come up with a new school financing scheme (Act 60) based only on the perceived (by the justices) need for a progressive school finance law that no legislature was, up to that point, willing to vote for.

The other recent  judicial usurpation in Vermont  was the Supreme Court’s discovery in 2000 that the constitution prescribed that same sex couples were entitled to marry, or at least enjoy “all or most” of the privileges of marriage (civil unions). In doing so, the Court stripped from the elected legislature the power to make the laws, and instead mandated that the laws be made to satisfy the liberal social theories of the justices. (In 2010 the legislature lawfully enacted same-sex marriage.)

A future opportunity for usurpation might well come with a lawsuit based on the theory that, as declared by Gov. Shumlin and the Vermont Worker’s Center, “health care is a human right”. So far the legislature has stopped short of labeling health care as anything more than a “public good”.

That suit will presumably be filed when Gov. Shumlin’s Green Mountain Care Board denies expensive care to a very sick Vermonter, on the grounds that even hundreds of millions of new tax dollars simply won’t be enough to pay for all the care everybody wants (plus the salaries of all the bureaucrats administering the system), and the Board reasonably relegated the plaintiff to the “do not treat” category.

The U. S. Constitution is one of limited and specified powers. Another continuing threat comes from courts agreeing that Congress can constitution ally do most anything it wants unless explicitly prohibited (like quartering troops in private homes without permission – the Third Amendment.)

This trend was stalled, perhaps only briefly, when a 5-4 majority of the Supreme Court held in June that the power of Congress to regulate interstate commerce does not extend to requiring people to enter interstate commerce and purchase a government-approved insurance policy, under the pains of suffering an IRS-enforced penalty. (A different 5-4 majority in the same case held, however, that the Federal government can impose a special tax on a person for not having a government-approved insurance policy.)

For those who love and revere a free society governed by constitutions of the people’s own making, the never-ending task is to discipline judges intent on replacing the requirements of constitutions with their own social and political theories and expansive concepts of “rights”.  An associated task is to replace legislators, presidents and governors who think they can inflict any legislation they choose on the American people, without regard to the constitutions that limit their powers. 

Unless citizens persist in protecting the constitutions, and demanding their observance from presidents and governors, legislators and judges, the day will come when usurpation will have made them irrelevant, and we shall have ceased to be a constitutional republic of free men and women.

The Future of the “Affordable Care Act” 
(July 2012)

The Supreme Court has now issued its startling ruling on the Patient Protection and Affordable Care Act (aka ObamaCare).

Four liberal justices ardently believe, with President Obama, that the constitutional power to regulate commerce authorizes Congress to require individuals to purchase government-approved health insurance, or suffer a monetary penalty for minding their own business.Five conservative justices believe that the commerce power cannot be stretched to authorize any such penalty.

Four of these five believe that the entire act – enacted without a severability clause – should be invalidated.

One of these five – Chief Justice Roberts – believes that the government that argued the case for the commerce power expansion that he resoundingly rejected has nonetheless shown that  the law passes constitutional muster as an exercise of the taxing power, which the government barely mentioned in its briefs and oral argument.

To avoid throwing out the entire case under the Anti-Injunction Act (which prevents litigating a tax until it is actually applied), the Chief Justice decreed that the individual mandate carries a penalty for unlawful acts, and is thus not a tax to raise revenue for the support of the government.

Then, with the case safely before the Court, the same Chief Justice rewrote the ACA into a tax law that Congress did not pass, the President emphatically rejected, and the Solicitor General failed even to discuss until he offered 21 lines of text in reply to another party’s Supreme Court brief. 

Then the Chief Justice triumphantly upheld his newly invented law, decreeing that an individual’s failure to buy government-approved health insurance triggers not a penalty but a new tax, and thus is within the power of Congress to levy taxes.

As the four conservative justices pointed out, in so many words, this sort of sophistry gives judicial activism a bad name. Meanwhile, the four liberal justices, clearly furious at the Chief Justice’s rejection of their beloved commerce power rationale, nonetheless joined his opinion based on the taxing power as the only way of keeping their equally beloved ACA alive

.Meanwhile, seven justices – the Chief Justice, the four conservatives, and two of the liberals -  held that the power of Congress to spend money does not extend to the point of demanding that the states produce billions of dollars to expand Medicaid spending beyond its present levels, or lose all current Federal matching money. Exactly how far Washington can go before reaching the point of “too far” remains to be seen on a case by case basis, which is not reassuring.             

Politically, what happened beginning in 2009 was this: first the House passed a bill taxing failure to purchase government-approved health insurance. But then Obama and the Democratic Senate got cold feet about creating a new federal tax likely to be very unpopular.

So the Senate converted the House-passed tax bill to a regulatory measure based on the commerce power. Obama then went on national television to say he “absolutely rejects” the charge that his individual health insurance mandate – which became the Affordable Care Act – was a tax.         

But it soon became clear to Obama that the commerce power mandate wouldn’t survive a Constitutional challenge. Suddenly, as the Justice Department defended the ACA in the Florida case, the administration began to recast the mandate as a tax.          

When oral argument in the Supreme Court in March strongly indicated that five justices wouldn’t buy his commerce power argument, Obama and his political and media allies (notably including Sen. Patrick Leahy) launched a campaign to intimidate the Chief Justice into “preserving the integrity and legitimacy of his court” by upholding the ACA.  The Chief Justice, for reasons still not known, caved in to the pressure, switched sides, struck down the commerce power expansion, but seized on the little-noticed taxing power argument to keep the ACA alive.

The upshot is that, thanks to the Chief Justice’s excursion into judicial never never land in an almost certainly vain attempt to improve his reputation as Chief Justice, America now has a new federal tax on personal behavior that Congress never enacted, at least as a tax.

A responsible Justice, faithful to his duty to interpret the constitution, ought to have struck down the commerce power expansion, refused to consider the ACA as a tax measure until actually applied to a taxpayer (per the Anti-Injunction Act), noted that the ACA’s provisions were not declared severable, and tossed out the whole law.

Then Congress and President would be free to pass a new ACA founded on the taxing power, impose the tax on someone, and defend it against constitutional challenge.

It may or may not be within the constitutional power of Congress to tax an individual for declining to buy government-approved health insurance. Whether such a tax would be a direct tax (that must be apportioned among the states) deserves argument. In any case, as the four conservative justices wrote, “one would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.”          

The Court has spoken, albeit with quadruply forked tongue. Now the issue comes before the voters in November. The ACA, which remarkably avoided interment by the apostasy of one Justice, is still likely to have a very rocky future.

Revisiting Vermont’s Constitution
October 2010

Last Saturday Vermonters re-enacted the adoption of Vermont’s remarkable Constitution of 1777. Strongly influenced by the Pennsylvania Constitution, the handiwork of the farmers and  woodsmen assembled at the Constitution House in Windsor is today the oldest, shortest and arguably the most liberal (in 18th Century terms) of the fifty state constitutions.

Vermont’s founders took Article I of Chapter I, the Declaration of Rights, from George Mason’s Virginia Bill of Rights that appeared a year earlier: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety…”

Note that the Vermont Constitution, unlike Jefferson’s Declaration of Independence, explicitly declares the right of citizens to acquire, possess and protect their property. This provision reflected the early Vermonters’ confrontation with Yorker feudalism, where landless tenants labored under the yoke of the Hudson Valley patroons. That, Vermonters said, was not freedom, but serfdom, and there would be none of it in the new Green Mountain State.

Vermonters have long celebrated their Constitution for being the first in the Americas to outlaw human slavery (at least above the age of 21) and the first to provide for universal manhood suffrage. There is a third “first”, rarely acknowledged. The Vermont Constitution was the first written constitution in the world to provide that, although when necessary private property could be taken for public use, “the owner ought to receive an equivalent in money.”

This just compensation clause and its later Federal counterpart proved so troublesome to modern land use planners and controllers that the Vermont Natural Resources Council once sponsored a full day legal conference to find a foolproof way of taking the value of a person’s property for their idea of public benefit (i.e., doing nothing with it), without the public having to pay for the value taken.

Like the later U.S. Bill of Rights, the 1777 Vermont Declaration provides for freedom of religion (Article 3rd), freedom of speech and press (Article 13th), freedom of assembly (Article 20th), due process of law (Article 10th), trial by jury (Article 12th), and the right to “bear arms for the defence of themselves and the state” (Article 16th).

This latter right was invoked a century ago when the Rutland city council adopted an ordinance requiring citizens to get police permits for owning firearms. The no-nonsense, literal-minded (conservative) Supreme Court of 1904 disposed of that idea in one printed page. The Constitution says that Vermonters have the right to keep and bear arms, it declared, and so the Rutland city council can go pound sand.

One long-ignored provision of the Declaration of Rights (Article 9th) states that “previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected.” Voters may find this useful in confronting tax-raising legislators currently seeking reelection.

Beside these protections of specific rights, the Vermont Constitution contains the immortal Article 18th: “That frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry and frugality, are absolutely necessary to preserve the blessings of liberty, and keep government free; the people ought, therefore, to pay particular attention to these points, in the choice of officers and representatives, and have a right, in a legal way, to exact a due and constant regard to them from their legislators and magistrates, in making and executing such laws as are necessary for the good government of the state.”

This Article endorses popular sovereignty and the accountability of public servants to the people. But more importantly, it defines the character traits that the Founders believed must predominate among the people, lest this brave little frontier republic descend into failure and chaos.

In its century the Vermont Constitution, and its sister documents from Pennsylvania and Virginia, were considered the height of enlightened liberalism.  They gave no shrift to crowned ruffians, feudal barons, lords and ladies. They announced the birth of democratic government of and by the people – people who had rights that no government could invade, and arms to stand against tyranny.

This was a scintillating achievement. The question today is whether there are enough Vermonters who still hold to the principles and character traits of 1777 to defend their venerable Constitution, and strengthen the liberal (for that era) culture upon which that Constitution was based.

Taxation by Unaccountable Strangers
October 2008

Vermonters have always taken pride in their closeness to their legislators. Even after the reduction of the 246 member House to 150 in 1966, Vermont still has the fewest people per representative (around 4,200) of any state in the union, save only New Hampshire with its 400 House members.

The great merit of such small districts is that voters can get at their elected representatives. If a legislator strays too far off the acceptable path, he or she is likely to be retired in the next biennial election. This is what the framers of the Constitution expected when they declared that “all officers of government are [the peoples’] trustees and servants, and at all times, in a legal way, accountable to them.” (Ch. I, Art. 6th).

There is one huge issue on which the people have always insisted on holding their legislators accountable: taxation. That’s why the Constitution also declares that “previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected.” (Ch. I, Art. 9th).

It would seem crystal clear, then, that Vermonters insist that if tax dollars are to be taken from their pockets, their servants the legislators have to vote to do it, and answer for it to the people.

But to a majority of legislators in recent years, that fundamental principle is not clear at all. They understand that faithfully observing that constitutional language can cause trouble for them at election time. Thus, they conclude, it’s best to disguise revenue raising measures so that the voters can’t figure out who’s taking their money, and who authorized them to do so.

Here’s an example. The 1990 legislature decided that more funds needed to be raised to support electricity conservation. So it enacted a one-half percent tax on home heating fuels. But when the fuel dealers tried to show this tax on a homeowner’s heating oil bill, like the tax on a dinner check in a restaurant, the state forced them to desist. That way hardly anyone would know that the higher fuel price resulted from legislators enacting a new tax.

That concealment of the new tax was bad enough, but the 1999 legislature broke new ground. It authorized a state regulatory body, the Public Service Board, to levy as much as it cared to on everyone’s electric consumption. The proceeds were needed, so the solons concluded, to fund a state “efficiency utility”. This year the PSB will extract $30.75 million for that purpose, rising to $40.7 million in two years. VPIRG and the Conservation Law Foundation are clamoring for the PSB to increase the tax to $81 million a year.

Meanwhile the Vermont Milk Commission has proposed a tax, called an “assessment”, on distributors of fluid milk to Vermont stores. If finally approved by the Commission (as an “emergency rule”), the retailers will necessarily pass the new tax on to their consumers. They’ll pay from 38 cents to 50 cents more per gallon. The Commission will hand the proceeds out to dairy farmers.

So how did your legislator vote on these tax increases? The nasty surprise is that they did not. They simply handed out the power to tax to two appointive boards, and tiptoed away from the scene of the crime. You are the poorer, and even if you are clever and persistent enough to figure out how your pocket is being picked, you have nobody to hold to account for it.

This is not the kind of government that the framers of the Constitution, and two hundred years of their successors, envisioned.

If legislators are the servants of the people and “in a legal way, accountable to them”, they can not authorize non-accountable strangers to levy taxes on the people. If legislators decide that the purpose for which a tax is raised appears “evident to the Legislature to be of more service to community than the money would be if not collected,” they can vote to raise it.

Then they can go back to Putney and Rochester and Lincoln and Richford and explain their vote to their voters. And on the next election day they’ll find out if the voters approved the actions of their servants.

Deny this, and you have denied the fundamental principle of a free republic: no taxation without (accountable) representation.

The Constitutional Agenda of 2007
November 2006

The sound and the fury of election 2006 is receding, and the new legislators are assembling their agendas for 2007. The window for constitutional amendments opens next year, and there is little doubt what the leading proposal will be: the four-year term for Governor and the other four constitutional officers.

Since 1870 those officers have been elected for two-year terms. Spurred by the League of Women Voters, the 1971 legislature proposed a four-year term for all five constitutional officers. The voters rejected the proposal on town meeting day 1974.

The four-year term proposal has reappeared in the legislature every four years since 1979, but has never again won House approval. Every Governor dating back at least to Robert Stafford (1959-60) has endorsed the proposal.

Its advocates argue a new governor really needs four years to have a chance to comprehend and get control over today’s $5 billion state government behemoth and promote his agenda. He or she should not have to face a reelection campaign within a year and a half of taking office.

Against this argument opponents say that the two-year term keeps the governor closer to the people. Most of the opponents find the size and complexity of state government regrettable, but can offer no prospect of reducing it to its size in, say, 1960.

On its merits the four year term proposal would seem to be assured of easy legislative passage and, in 2010, final voter approval. There is, however, one large fly in the ointment. Legislators also want four-year terms. Unlike the governor, the legislators do not have the arguments about the size and complexity of state government and the burden of statewide campaigning. Their only credible argument is that a four-year governor could have inordinate power over a two-year legislature, perhaps intervening in legislative elections to strengthen his political hand.

Their real argument is that they just want to be spared the expense, inconvenience and political danger of being held accountable by their voters every two years. If history is any guide, many legislators will hold the four-year term for constitutional officers hostage in the hope of getting their piece of the action.

Unlike statewide elected officials, senators have one-county districts (except for Essex-Orleans). Even two-member representative districts have less than five thousand voters. Any legislator who finds it too daunting to campaign for reelection in such small districts every other year ought to find some more congenial pastime.

If the legislature finds the votes to recommend the four-year term for governor officers, it follows that the other four constitutional officers will get the same. Then there is the question of the status of the attorney general. Though elected statewide, the AG is not a constitutional officer. Instead of giving constitutional status on that office, the legislature ought to take it off the ballot altogether.

The governor should be given the power to appoint his or her AG, with the advice and consent of the Senate, just as other cabinet officers are appointed. There is no good argument for having an independent AG, such as the incumbent, running about the country filing political lawsuits. As it was until the 1960s, the AG’s client ought to be the elected governor and legislature, not his or her concept of “the people”.

While they are at it, the legislature ought to propose a joint ballot for the Governor and Lt. Governor. This is the practice in 22 of the 45 states that have Lt. Governors, and of course for President and Vice President.

And why stop there? Why not remove the Secretary of State, Treasurer and Auditor from the statewide ballot as well? For years these three offices were occupied by non-partisan civil servants who quietly did their jobs. Since the early 1980s various occupants of these offices have spent considerable time and effort scheming for political advancement. Vermont should emulate Maine and New Hampshire, and choose these officials by gubernatorial appointment or legislative election.

Having only One Big Choice on the ballot – the Governor-Lt. Governor team - would vastly simplify elections. It would focus the public on the most important candidates and their programs. It would also spare Vermonters the burden of producing up to a million dollars to finance the separate campaigns of the lower five officers.

As in the past, though, the interests of aspiring politicians will probably push this needed reform off the constitutional amendment agenda.

Private Property At The Mercy of Government
June 2005

When, if ever, does government have the power to take the property of A and turn it over to B? According to a June 23 ruling by the U.S. Supreme Court (Kelo vs City of New London), government can do that whenever it thinks that B will pay more in taxes.

Six years ago the New London CT city council conceived a plan for urban revitalization and tax base enhancement. Through its nonprofit development agency, it would buy or if necessary condemn 90 acres called Fort Trumbull, adjacent to the Pfizer pharmaceutical complex. After setting aside 18 acres for parkland, it would sell off the remainder to a private developer. The developer would develop the remaining acreage according to a city-approved master plan including a hotel, a conference center, restaurants, and upscale retailing. The city would benefit from the jobs created and also rake in a ton of property tax dollars.

Fifty-eight of those acres are owned by 115 small landowners. Some of them have lived there all their lives, in modest and well-maintained homes. They went to court to defend their homes and neighborhood against the grand schemes of the city government and its developer friends.

The Fifth Amendment of the U.S. Constitution says “nor shall private property be taken for public use, without just compensation.” To the framers of the Bill of Rights, “public use” meant highways, lighthouses, navy yards, arsenals, and customs houses owned by the public, or canals, ferries, and railroads serving as common carriers for the public. But private property may not be taken by eminent domain – regardless of just compensation – if the government simply turns it over to the private use of a different owner.

The Supreme Court began to chip away at this protection in 1954. It upheld a District of Columbia slum clearance and redevelopment program on the grounds that the area was unquestionably “blighted” and harmful to public health and safety. (Such programs were denounced by civil rights groups of the day as “Negro removal”.)

In the Kelo case, the Court, on a 5-4 vote, ruled against Susette Kelo and the other homeowners. The Court replaced the constitutional requirement of “public use” with “public purpose.” As Justice O’Connor observed, dissenting, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded – i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public…Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

The Kelo holding is a victory for tax-hungry governments, planning departments, and ambitious developers. It is a defeat for ordinary citizens who, until now, believed that the Bill of Rights protected their right to property ownership again governments eager to dispossess them in favor of other private citizens.

As Justice Thomas pungently observed in his dissent, “Extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best use, but are also the least politically powerful.”

The Kelo case thus poses a dilemma for liberals. Liberals love government action to make sure that all development is done according to The Great Plan. On the other hand, liberals see themselves as principled advocates for justice for the poor, the little guy, disadvantaged minorities, Joe Sixpack – precisely the people who will be forced out of their property as governments, hand in hand with “the rich and the big corporations”, take advantage of the green light newly given them by the Supreme Court.

Eight states expressly prohibit the use of eminent domain for economic development unless the area is clearly blighted. Vermont is not one of them. Vermont’s constitution makes private property “subservient to public uses, when necessity requires it.” To date, Vermont cities have rarely if ever sought to use eminent domain to confiscate property from A and turn it over to B, as in the New London case.

Now a U.S. Supreme Court majority has defined away the prohibition against takings for revenue enhancing purposes. The Vermont Supreme Court has shown itself willing to uphold almost any regulatory taking of land values. Given these unpleasant facts, property owning Vermonters should start thinking about adopting a constitutional amendment to protect their rights. Their 18th century constitutions are on their side, but their supreme courts, in thrall to the “diverse and always evolving needs of society”, are clearly not.

Constitutional Infidelity
March 2005

On the 19th of June in the year 1859 Thetford Justice of the Peace Noah Powers did something illegal. He issued a warrant for Clark Courser’s arrest - for what the records do not show.

The town constable arrested and detained Courser. Meanwhile it occurred to someone that Justice Powers, though duly reappointed for another term as Justice seven months before, had neglected to take his constitutionally required oath of office. While Courser was being detained, Justice Powers hastened to clean up his act by taking the oath of office.

Courser found this out, and brought suit in Orange County Court denying the validity of Justice Powers’ warrant, since the Justice had not taken the required oath. The matter was forwarded to the Vermont Supreme Court for settlement of the constitutional question involved.

Chief Justice Luke Poland made quick work of the appeal. After reviewing eight earlier cases that touched on the question, the Chief Justice wrote that a judicial officer “must show every thing done necessary not only to his legal election or appointment, but also to his legal induction into office.” The constitutional requirement to take and subscribe to an oath (now Chapter II, sec. 56) is not merely a suggestion. It is a mandate, and unless complied with, the person is not an officer of the state.

Elected or not, Powers was not a Justice of the Peace, and had no authority to issue the arrest warrant. In short, a unanimous Vermont Supreme Court, headed by one of the most celebrated jurists in the state’s history, held unequivocally, “no compliance, no office”.

In 1879 the Supreme Court addressed the question of whose responsibility it is to provide proof of compliance. Victory School Director Houston brought an action to force tax collector Russell to pay over to the town $20 that Russell had collected from a nonresident landowner. Russell objected that there was no proof that Houston had been elected and had taken and subscribed to the required oath of allegiance. Thus, Houston was not empowered to bring the action. The Court held that it is the responsibility of every officer, in a legal proceeding, to establish his right to act as an officer – that is, to produce the evidence that he was appointed or elected, and took and subscribed to the required oaths.

At first glance, these long-forgotten squabbles among 19th century town officers have little modern relevance. But these Supreme Court holdings are not buried in the archives. They are included in The Vermont State Constitution: A Reference Guide, published in 1992 by retired Justice William C. Hill for guidance of the Vermont judicial system.

They are relevant now because Supreme Court Justice John Dooley has never produced any evidence that he not only took the oath of allegiance when appointed to the Supreme Court in 1987, which is uncontested, but that he also subscribed to it as required by the Constitution. Justice Dooley’s partisans say that it was somebody else’s responsibility to see that the subscribed oath was properly deposited in the archives.

But when a Justice of the Supreme Court takes an oath “not to do any act or thing injurious to the constitution”, and then, in the face of the plain language of the Constitution and the uncontested rulings of the Supreme Court, doesn’t even bother to subscribe and file his oath-taking document; and when for seven years that Justice refuses to respond to inquiries about whether he has complied, one has to wonder whether that Justice takes fidelity to the Constitution seriously. That is especially so when on reviews Justice Dooley’s performance on the bench.

Justice Dooley’s highly political approach to jurisprudence has given us the Brigham (school finance) decision, a trip into what the Justice himself once described as constitutional “never never land” to get a politically correct result. It has also given us numerous decisions where the Court admitted that lower court rulings were “technically correct”, but had to be overturned in the name of “our common humanity”, “best interests of the child”, and other such extra-constitutional creations of the Five Supreme Legislators.

The people and their legislators ought to insist that Justices take seriously the Constitution the people adopted, rather than ignoring it when they please and substituting their own political agenda whenever they get a case that gives them the opportunity. The legislature can send that message by voting against retention for Justice Dooley on March 17.

(Note: On March 17, 2005 the legislature retained Justice Dooley on a 105-71 vote.)

Rescue The Constitution from the Court
February 2005

Every six years Vermont’s legislators have the solemn duty to review the performance of Vermont’s Supreme Court Justices, and pass judgment on whether they ought to be retained in office.

Everyone agrees that Justices who are senile, deranged, intemperate, absent or corrupt should not be retained on the bench. The Justices, the legal profession and their friends in the legislature believe that’s the end of it. They insist that it’s not the business of legislators to pass judgment on the substance of a Justice’s work, which ordinary mortals can not possibly comprehend.

It’s too bad George Washington, Tom Jefferson, Alexander Hamilton, Andy Jackson, Abe Lincoln, and Teddy Roosevelt aren’t around. All of them well understood that constitutions belong to the people, and judges are not at liberty to rewrite the constitutions the people adopted. As Teddy put it, “The people are entitled to say what the constitution means, for the constitution is theirs; it belongs to them and not to their servants in office.”

If the people find the constitution to be inadequate, impractical or undesirable, then the people have prescribed the means for correcting the problem: amendment. But only the General Assembly and the people of this state can lawfully amend the Constitution.

When Justices, for their own political purposes, invent new “rights’ nowhere found in the constitution, “rights” clearly not contemplated by the framers of the constitution, “rights” that lay completely unsuspected through two centuries of our state’s history until miraculously discovered by activist Justices, those Justices are committing judicial usurpation.

First and foremost, retention is, or should be, about usurpation. It’s the people’s way of holding Justices accountable for fabricating their own constitution from thin air, substituting their own political preferences for the expressed will of the people, ignoring the separation of powers, and putting the judicial gun to the head of the legislature.

That is precisely what Justices John Dooley and Denise Johnson did in both the Brigham (school finance) and Baker (gay marriage) cases. They, along with other members of those Courts, took a clause in the Constitution designed (by Virginians) to forbid those in charge of the government from showering special privileges on their cronies, and made it into a sweeping progressive mandate that legislatures can make no rational distinctions that disfavor any class that the Supreme Court finds politically correct.

For this there is no text, no precedent, no case law, and no standards to guide future trial courts. This is simply arbitrary rule by unelected Justices. That’s what George Washington and the others called judicial usurpation.

This is not a radical argument. Attorney General Jeffrey Amestoy in 1997 denied that our 1786 Constitution contained any individual right to equal educational opportunity. Brigham trial judge John Meaker agreed with him. Attorney General Bill Sorrell in 1999 denied that the Constitution somehow required anything resembling same sex marriage. Baker trial judge Linda Levitt agreed with him. But all of their arguments and holdings were summarily overturned by a Supreme Court eager to rush into what Justice Dooley once incautiously called “never never land”, to obtain the correct progressive result dictated not by any reasonable interpretation of our Constitution, but by the Justices’ own political preferences.

Justices Dooley and Johnson produced tortured arguments, invented bogus history, engaged in intentional deception, and seized upon what liberal Vermont Law School professor Peter Teachout called the “raw assertion of judicial power” to take Vermont jurisprudence into “never never” land. Twice, at least, they have broken faith with the people and violated their oath of allegiance “to not do any act or thing injurious to the Constitution.”

For legislators, it’s not about whether they liked the results of the Brigham and Baker decisions. One can be all for Act 60 and gay marriage, but still be outraged that a politicized Supreme Court would dare to impose such policies on an elected legislature, based on no constitutional foundation, but only on the preferences of the Five Supreme Legislators.

Responsible legislators who revere the people’s constitution have the opportunity to rescue that Constitution from “never never land” by voting against retaining serial offenders Dooley and Johnson. The vote is scheduled for March 17.

(Note: Justices Dooley and Johnson, and others, were reelected by the legislature on March 17. The vote on Dooley was 105-71.)

The One Big Choice Plan
December 2002

In 2002 the three candidates for Governor raised around $2.4 million for their campaigns, much of it from national party organizations and PACs. The candidates for the five lower statewide offices raised at least $700,000, most of it from Vermont sources. This total would have been higher if attorney general William Sorrel, who raised $26,000, had had serious major party opposition.

The campaigns for Lt. Governor, Treasurer, Secretary of State, Auditor and Attorney General consumed not only a lot of campaign money, but also a lot of campaign talent. Each candidate for those five offices strove to create his or her own personal campaign, independent of his or her party’s campaign for Governor. They spent money on competing advertising, claimed a share of time and space at party rallies, waved at passing motorists, and contributed to the clutter of yard signs.

Most notably, the voters really had little reason to vote for or against any of these candidates, other than their party affiliation or name recognition. Ordinary voters know of few if any issues relevant to these offices. Only rarely does an incumbent in these offices do anything so newsworthy that his or her reelection is jeopardized. Only four times in the past 38 years have the voters denied reelection to an incumbent in these five offices (three secretaries of state and one attorney general).

It’s time to consider a different model for statewide elections, a model that gives each voter one big and meaningful choice to make about the state’s future leadership. Let the voters cast one vote for candidates for the Governor and Lt. Governor, running together as a team, like Bush-Cheney or Gore-Lieberman. This is the current practice in 22 states. The candidates would make up their own teams and contest the party primary with other teams, as in Maryland and Montana. Alternatively, the candidate who wins the primary for governor could ask his or her party convention to name the most suitable running mate to strengthen the ticket, as the national party conventions do in presidential elections.

As in Maine and New Hampshire, the legislature would elect the Secretary of State and Treasurer, and as in Massachusetts, the Auditor. These officeholders would become nonpartisan civil servants whose terms are reviewable by the legislature every six years, like judges. Let the Governor appoint the attorney general to serve at his pleasure, subject to confirmation by the Senate. This is the practice in New Jersey, Wyoming and Hawaii.

Consider the benefits.

The voters would be called on to make just One Big Choice: which team do I want to lead the state for the next two years? The voters would choose among the Democratic or Republican or Progressive or perhaps one or more independent candidate teams, and put one X on their ballots.

The Lt. Governor would be the Governor’s fellow partisan and trusted lieutenant. That would ensure continuity of policies if the Governor died or resigned. The attorney general would be accountable to the governor, instead of running his own independent public interest law firm at taxpayers’ expense.

The other three officers would be out of partisan politics altogether. There would be no more political jockeying by ambitious lower office holders trying to propel themselves into a higher position.

The scramble to raise (this year) $700,000 to fund campaigns for the lower offices would end. There would be far less competition for scarce campaign talent from the governor’s campaign and the party’s legislative campaigns; no bewildering clutter of competing advertisements, mailings, and yard signs from candidates about whom the public has very little knowledge or interest.

Under the One Big Choice plan, voters would concentrate on the character, experience, and platforms of the candidates for Governor, just as the voters in 2000 concentrated on Gore-Lieberman vs. Bush-Cheney. The parties would concentrate their campaign efforts, human resources, and fund raising on persuading the voters to make the One Big Choice in their party’s favor.

The One Big Choice Plan is simple, understandable, tested, and far more meaningful than today’s welter of statewide candidates vying for attention from an electorate that really has little idea of who those candidates are or what those offices do.

The opposition to One Big Choice will come from politicians ambitious for higher office. They yearn to get themselves elected to a statewide office where they are completely independent of the governor, and need answer to no one when they use the resources and visibility (such as it is) of a lower office to work their way up the political ladder.

But the opposition of ambitious politicians ought not be allowed to defeat a proposal that makes sense for good government, make sense for voter comprehension, makes sense for the political parties, and significantly eases the political fund raising pressure in election years.

It will take a constitutional amendment to put One Big Choice into operation. Next year that opportunity beckons.

A Refresher Course on the Constitution
October 2002

Vermont’s Constitution provides that if no candidate for Governor, Lt. Governor or Treasurer wins “the major part of the votes” cast in the general election, the newly elected Senators and Representatives “shall by joint ballot, elect to fill the office” from among the top three vote getters in the general election.

The provision for legislative election in the case of no majority has been a part of the Constitution since 1777. Similar provisions exist in the constitutions of New Hampshire and Maine. The relevant section of the Vermont Constitution has been amended three times: to provide for an elected Senate (1836), to provide for two-year terms (1870), and to make use of gender-neutral language (1994).

During the past 225 years there have been several very contentious instances – notably in 1853, 1910, and 1912 - when no candidate for Governor won a major part of the votes. In each of those years the general assembly balloted repeatedly before reaching a decision. In no instance did anyone propose that the constitutional provision of a ballot be ignored, and that each vote be on the record by roll call.

This year there is a real possibility that no candidate for Governor or Lt. Governor will get “the major part of the votes” cast by the electorate on November 5. Sen. Peter Welch (D-Windsor) is concerned that the top two races may be decided by a ballot vote of a general assembly which will have a Republican majority (currently, 97 of 180).

So Welch has announced that, if “no majority” comes to pass, he will propose as the first order of general assembly business that the provisions of the constitution simply be ignored, and every legislator be required to vote on the record.

One can make a rather strong case that a general assembly election vote ought to be “on the record.” But the Vermont constitution does not. It says, in black and white, “by joint ballot”.

Every man and woman who served in the legislature over the past 225 years, every town clerk and moderator, every board of civil authority, and every Vermonter who has ever voted at a town meeting knows perfectly well that a “ballot” is a piece of paper on which the voter indicates his or her private choice and deposits it in the ballot box.

The plain language of the constitution and the unbroken and unchallenged practice of 225 years of Vermont history completely settle any question on this point. But Welch is perfectly willing to toss the constitution in the trash can when adhering to it might deprive his political party of an advantage.

Welch is not alone in viewing the Vermont constitution as out of date and an inadequate basis for advancing the modern progressive agenda. In the late 1960s the League of Women Voters demanded that the constitution be amended by simply calling a convention to do so, despite no provision whatever for such a radical step. (The voters rejected the proposal.)

Twice in the past five years the Vermont Supreme Court has brushed aside the Vermont Constitution and written a new one to reflect the justices’ own liberal views. In 1997 Justice John Dooley crafted the Brigham decision, in which the Court converted a constitutional requirement that a competent number of schools be maintained into a sweeping mandate to the legislature to produce substantially equal tax resources per pupil in every school district.

In the 1999 Baker decision, Chief Justice Jeffrey Amestoy declared that whatever support the Constitution might give to the desires of homosexuals to enjoy the benefits of marriage (none), reliance on the concept of “our common humanity” settled the matter in their favor.

All of these people badly need a refresher course in Vermont Civics 101. Here is one in a nutshell:

1. The constitution belongs to the people, not their servants in the courts and legislature.

2. The people adopt a constitution to spell out their rights, their duties, and the form of democratic self-government.

3. When times, circumstances, and preferences change, constitutional amendments are proposed, debated, approved by legislative majorities, and ratified by popular vote.

4. Until the people amend their constitution, legislators and judges are not allowed to do so on their own.

5. Those politicians, including those on the Supreme Court, who ignore what the constitution requires and make up new rules that the people have never assented to, should be retired from office at the first opportunity.

Let’s do it right. This is Vermont, not Zimbabwe.

Sorrell Takes on Microsoft
October 2001

Fresh from a victory over Big Tobacco, during which he persuaded the legislature to pass a dishonorable bill stripping the tobacco manufacturers of all of their courtroom defenses, Vermont's attorney general William Sorrell has set his legal sights on a new target: Microsoft.

Microsoft has earned billions by marketing the Windows operating system used on the great majority of personal computers. In 1998 the Clinton Administration's Justice Department brought an antitrust suit against Microsoft, at the urgent behest of Microsoft's competitors. (They could have sued Microsoft themselves, but why not let the government do the work?)

At the heart of the suit was the charge that Microsoft, by integrating its web browser Internet Explorer with its operating system, threatened to put browser rival Netscape out of business. The Clinton suit was joined by 18 state attorneys general, not including Vermont's.

A Federal trial judge issued a sweeping decree branding Microsoft an antitrust violator and ordering a breakup of the company. An appeals court affirmed some antitrust violations (the original browser issue has long since receded), but reversed the breakup order. It also dismissed the trial judge from the case in view of his obvious bias against Microsoft and his indiscreet public remarks about parties and issues in the case. The Bush Justice Department is now trying to negotiate an agreed remedy.

While all this was taking place, Microsoft was hard at work developing its next generation product, Windows XP. Microsoft's competitors are worried that XP will be so good a product that they will lose market share to Microsoft. So they swung into action.

Former Indiana attorney general Jeffrey Modisett, now in a law firm that represents Microsoft competitors Oracle and AOL Time Warner, prepared a letter for additional attorneys general to send to Microsoft. Sorrell became the lead signer of the letter, on behalf of himself and five other attorneys general.

The Modisett letter, which Sorrell says was "a minimum of 70%" redrafted by the co-signers, expresses support for Microsoft's opponents, expresses alarm at several hypothetical effects of XP, and declares the signers' support for including court-mandated changes in XP in the remedy phase of the current case.

Leaving aside the embarrassing fact that Sorrell was pushed into action by Microsoft's competitors, his letter is an attempt to apply 1890s antitrust theory in a wholly new and fast moving 21st century digital economy. It is transparently aimed at crippling the currently leading firm - Microsoft - to benefit its competitors. It is all about erecting legal barriers, with no concern for economic consequences.

As David Kopel of Colorado's Independence Institute points out in a brilliant new book (Antitrust After Microsoft), technology is changing much faster than old-style antitrust regulators can act. Microsoft has certainly played hardball and has sometimes used illegal business practices. But, says Kopel, "the proliferation of new products and falling prices makes it difficult to defend the assertion that consumers were harmed during the 1990s by Microsoft's alleged monopolistic conduct."

Microsoft's alleged monopoly power came from its consumer-oriented high-volume/low-price strategy. It won the "browser war" by putting out a superior product, not by designing Windows so that rival Netscape's browser wouldn't work well with it. Microsoft's software dominance is constantly under attack from new competitors with new products.

"The Sherman [Antitrust] Act today is what it has always been, " writes Kopel. "It is a tool for failed competitors to win in the political arena what they cannot achieve by satisfying customers in the free market."

America's wealth, defense, and export strength is increasingly based on high tech information, organization, computation, and telecommunications. When attorneys general use century-old legal tools to try to bring down a brilliantly successful innovator like Microsoft for the benefit of its less successful competitors, they are aiming a blow at a relatively free market that has generated wealth, employment, productivity, tax revenues, convenience, and personal enjoyment unimaginable only two decades ago.

Sorrell's letter will probably not have much impact in Microsoft's current legal battle. What it will do is show high-tech companies that Vermont has an attorney general who can be enlisted to inject the government into legal disputes among high-stakes competitors.Vermont's economic future would be brighter without that demonstration.

Vermont's Smoking Gun
August 2001

If Vermont's budgeteers are not concerned about what is going on in the wonderful world of tobacco, they should be. It's entirely possible that by 2003 Vermont's fiscal health will be significantly affected by the collapse of a 1998 tobacco deal .

In that year the four companies that make up Big Tobacco cut a deal (called the Master Settlement Agreement - MSA) with a group of private trial lawyers and 46 attorneys general (including Vermont's). In return for a quarter of a trillion dollars, Big Tobacco bought immunity from the state antitrust laws. The money is being extracted from smokers by higher cigarette prices over 25 years, and distributed to the 46 states in annual payments. Vermont's booty from the MSA will be $29 million in fiscal year 2003, and around $24 million a year after that..

Big Tobacco was naturally concerned that their tiny competitors (less than 2% of the cigarette market) would seize the opportunity of the increased prices to peddle discount smokes and capture a larger share of the market. So the MSA, enforced by state laws, requires the non-signing companies to pay "damages" into escrow against their possible future price cutting. No evidence, no trial, no verdict, no injury, just damages.

The MSA scheme is, simply the mother of all antitrust violations, and the little companies don't like it. One of them, a discount cigarette seller called Bedell Wholesalers, brought suit against Big Tobacco to blow up the MSA. In June the 3rd Circuit in Philadelphia rejected Bedell's appeal, but in doing so the court opened the door to a new and deadlier assault on the MSA.

The court held that Big Tobacco didn't violate any laws by asking for and accepting antitrust immunity from the states. But then the court went on to say that since the MSA "empowers the tobacco companies to make anti-competitive decisions with no regulatory oversight", the states themselves are engaged in an actionable antitrust violation.

That astonishing finding will almost certainly produce a new suit - Bedell vs. 46 States. Unless the Supreme Court overturns the 3rd Circuit, the MSA agreement will likely be toast, and the $24 million a year Vermont is confidently expecting to receive for 22 more years will disappear like a hayfield full of army worms.

The state currently applies about $17 million of its annual MSA payment to supporting its expanded Medicaid program, and another $7 million to efforts to persuade people not to smoke. (The rest goes into a reserve). In addition to the MSA proceeds, another $24 million a year from the state cigarette tax is assigned to fund Medicaid expansion.

Medicaid, dramatically expanded as Gov. Howard Dean's legacy, is already alarmingly underfunded. The 2001 legislature declined the governor's urgent request to increase cigarette taxes for Medicaid by 67 cents a pack. To the extent the anti-smoking campaign cuts cigarette sales, the current $24 million tax revenue will shrink every year. If the MSA is overturned, another $17 million from MSA payments will disappear from Medicaid.

From the standpoint of a state budget with little or no surplus - which is likely to be the case by 2003, when a new Bedell case against the states comes to a decision - this will be a serious fiscal aggravation, to put it mildly. But from the standpoint of public honor, it would be a felicitous outcome. That is because the MSA is essentially a shameful deal among three greedy parties - Big Tobacco, the attorneys general, and the billionaire trial lawyers who masterminded it all.

The attorneys general, all the while railing against the health evils and political power of Big Tobacco, gave Big Tobacco an illegal and probably unconstitutional immunity from the antitrust laws, a free hand to price-fix at the expense of their consumers, and a government hammer to beat down their tiny competitors. In return, the attorneys general assured their states of a guaranteed income stream for 25 years.

If ever a deal deserved to come apart in court, it is this one. The collapse of the MSA would be fiscally difficult for Vermont, but principled Vermonters would at least have the satisfaction that their state would no longer be the concubine of Big Tobacco, having sold its integrity in a corrupt bargain.

"Thus Saith The Lord": When A Supreme Court Should be Replaced, Not Obeyed
October 2000

(This commentary by EAI President John McClaughry first appeared in the Sunday Herald/Times Argus of October 8, 2000 as a response to commentaries published a week earlier by Times Argus columnist Jack Hoffman and former Attorney General M. Jerome Diamond. It has been slightly expanded here.)

Supreme Courts interpret Constitutions. Whenever a Supreme Court speaks on the meaning of the constitution, is that the last word on the matter? Are the legislative and executive branches bound to meekly obey whatever the Supreme Court proclaims? Can a decision of a state's Supreme Court itself violate the Constitution?

Those questions were aired out on this page last week by columnist Jack Hoffman and former attorney general M. Jerome Diamond, after Republican gubernatorial candidate Ruth Dwyer raised them in the Rutland debate with Gov. Howard Dean. These writers, both enthusiasts for the Court's civil unions decision, agree with Gov. Dean: when the Supremes speak, everybody has to obey. Period.

Hoffman argues that the Court's rulings are by definition constitutional. He decries those who suggest that "the Court is out of control and has lost its authority", suggesting that those persons have suffered an inferior education. Diamond says a legislator can't take an oath to support the constitution and then turn around and undo legislation passed to carry out a declaration of the Supreme Court.

The question of the absolute and incontrovertible authority of a Supreme Court's decision is not a new one in American history. Harvard Law Professor Raoul Berger, in his classic Government by Judiciary (1977), convincingly showed that the framers could scarcely imagine a supreme court invalidating a legislative enactment. Alexander Hamilton argued that the threat of impeachment would keep judges from committing "a series of deliberate usurpations on the authority of the legislature". Even Chief Justice John Marshall, remembered today as the author of judicial review, stated that "a bold and plain usurpation to which the constitution gave no countenance" was required "to invoke the judicial power of annulment."

President Thomas Jefferson, with his customary clarity, affirmed that each of the three branches of government "acts in the last resort, and without appeal, to decide on the validity of an act according to its own judgment, & uncontrouled by the opinion of any other department." To allow the Supreme Court to have final say on constitutional questions, he believed, would be "very dangerous... and place us under the despotism of an oligarchy."

President Andrew Jackson was firmly convinced that the Congress had exceeded its constitutional powers when it chartered the Bank of the United States. Marshall's Supreme Court had held otherwise. When Congress renewed the Bank's charter in 1836, Jackson vetoed the bill. "The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution," Jackson wrote." And he added, as if anticipating Diamond's argument, "each public officer who takes an oath to support the constitution swears that he will support it as he understands it and not as it is understood by others.... The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both."

Jefferson's and Jackson's ire was aroused by Supreme Court decisions that upheld acts of Congress which they believed to be beyond the constitutional power of Congress to enact. It was not until 1857 that the Supreme Court struck down a Congressional enactment not involving the narrow question of the jurisdiction of the Court itself. This was the infamous Dred Scott decision.

Scott was a slave who had lived several years in free Wisconsin Territory before returning to slaveholding Missouri. He sued for his freedom, arguing that his residence in a free territory had emancipated him and made him a citizen. The Court might have avoided the issue by holding, as it had in 1850, that the question of slave or free status should be determined in the state courts. Perhaps unwisely, the Court went far further. It held that Congress could not constitutionally interfere with a slave owner's property interest by prohibiting slavery in a territory. This holding was gasoline on the flaming issue of the extension of slavery.

In the following year a rising Illinois politician named Abraham Lincoln engaged Vermont-born Stephen A. Douglas in seven celebrated debates across Illinois. Central to their debates was the constitutional question posed by the Dred Scott case: could Congress prohibit the extension of slavery into the territories, or did it have to submit to the Court's ruling that it could not?

Lincoln and the early Republicans firmly believed that Congress had and should exercise the power to prevent the evil of slavery from taking root in new territory. In their Ottawa debate Lincoln mocked Douglas' belief that the Dred Scott decision had settled the matter. Douglas' argument, said Lincoln, came down to dumbly reiterating "Thus Saith the Lord" - the Supreme Court must be obeyed. He cited Democratic icons Jefferson and Jackson as agreeing with his own view that the legislative and executive branches are not bound by a wayward opinion of the judiciary.

In the five decades after 1890 progressives and labor unions were increasingly outraged that federal courts were striking down their hard-won state social legislation as unconstitutional incursions on the rights of property and contract. In 1911 these liberal forces in the California legislature passed a sweeping provision for the recall of judges, and gained a 3-1 approval from the electorate in a referendum. In 1986, making use of this provision, California voters removed two Supreme Court Justices for their adamant refusal to enforce the death penalty provisions of the state constitution.

In 1912 the liberal recall movement gained a strong new adherent in ex-President Theodore Roosevelt. He told the Ohio constitutional convention that "when the Supreme Court of a State declares a given statute unconstitutional, because in conflict with the State or National Constitution, its opinion should be subject to revision by the people themselves." His preferred mechanism was a popular referendum vote, which if successful would reverse the Court's decision: "If the courts have the final say-so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people."

When Ruth Dwyer describes the Vermont Supreme Court's holdings in the Brigham and Baker cases as unconstitutional mandates, she shares common ground with some very revered historical figures.

For two centuries judicial activism was simply not an issue in Vermont. It was not until 1814 that the Vermont Supreme Court overturned a legislative act, and that was a special private deal for a crony involved in a legal proceeding. Conservative Republican legislatures did not pass much property- or contract-threatening social legislation. Conservative Republican judges believed in strict construction, tradition, precedent and restraint.

In the past decade that venerable judicial tradition has been destroyed by a Supreme Court composed since 1997 of five career government lawyers eager to get out in front of the liberal parade. Unlike the liberals who in 1912 demanded recall of judges who struck down popular statutes, today's liberals, including Hoffman, Diamond, the ACLU, and Vermont Freedom to Marry, now take the positions of the corporate lawyers of 90 years ago: "Thus Saith the Lord."

The case against Vermont's Five Supreme Legislators comes down to this: The Justices each took an oath "not to do anything injurious to the Constitution." Then they proceeded to write their own constitution. Then they decreed that the legislative branch do their bidding - in the gay marriage case, with a judicial gun pointed squarely at the legislature's head.

The Vermont Constitution enumerates numerous specific rights that government is required to protect. These include such rights as freedom of press, assembly, and worship, the right to just compensation when private property is taken for public use, and the right "to keep and bear arms in defence of themselves and the state."

The Court's Brigham and Baker decisions, however, are based on no recognizable rights contained in the constitution. Indeed, as late as 1995 few outside of the ACLU and the Gay and Lesbian Advocates and Defenders believed that any such rights existed. The Five Supreme Legislators, eager to get on the cutting edge of progressive social thought, simply invented new "rights" out of thin air. As Justice John Dooley once put it, sometimes the Court has to go off into "never never land" to reach the result that society needs. In Brigham, in a mere 51 days and without the benefit of a trial record, the Dooley Court invented a bogus history, ignored inconvenient constitutional language, ludicrously reinterpreted ancient cases to support the ACLU's theories, and committed what even Vermont Law School Prof. Peter Teachout, himself a liberal, described as "intentional deception" and "a raw assertion of judicial power". In Baker, the Amestoy Court divorced the "common benefit" clause from all of its historical meaning, rewrote it, coupled it to their own notions of "our common humanity", and overturned 200 years of well-accepted statutory law limiting the benefits and responsibilities of marriage to one man and one woman.

Judicial independence is very important - when the judges are men and women of complete integrity who respect their oath of office and are faithful to the constitution they are sworn to uphold. On close questions of law, citizens ought to give such a Supreme Court the benefit of any doubt even when its decisions are widely unpopular. In cases where the Court strikes down statutes, the legislature can enact new statutes to correct the defects and reassert the will of the people.

But when five justices conspicuously abandon the Constitution they were sworn to defend, when they arrogantly inflict their own views of how the people of Vermont must order their laws and affairs, when they tell the elected legislature to "do what we say, or you'll get even worse", it is time for the people to call a halt. The justices have forgotten their oaths of office, and the Court has entered politics. One of the Five Supreme Legislators is said to have remarked at oral argument in the Baker case, "some state has to be first". Very well. Let Vermonters achieve another first: the first state whose citizens acted to replace five politicized justices with new men and women who will take their oaths of office seriously, honor our constitution, and respect the people they serve.

Reining in an Errant Court
October 2000

At the root of the voter resentment sweeping the state this year is a belief that Vermont's democratic political process was hijacked by a politicized Supreme Court that embarked on a liberal social agenda without benefit of constitutional support, aided by a legislature whose leadership was eager to immediately carry out the Court's instructions in the face of widespread public opposition.

In both the Brigham (school finance) and Baker (gay marriage) cases the Vermont Supreme Court overturned holdings of conscientious Superior Court judges, summarily rejected the defenses presented on appeal by the State's attorney's general, threw precedent out of the window, concocted outlandish theories of constitutional rights out of 18th Century language that has meant something completely different for over 200 years, plunged headlong into the "never-never land" (Justice Dooley's telling phrase) to produce its version of necessary results, and (in the gay marriage case) bullied the legislature into doing the Court's bidding by promising even worse if the legislature failed to toe the line.

Judicial independence is an important value. On constitutional questions, especially, the people ought to give the benefit of the doubt to judges even when their rulings are unpopular. But that deference is due only to a Court which has the self- discipline to interpret the plain language of the document, considers the meaning as understood by those who framed it, gives heavy weight to years of judicial precedent, and holds the view that when changes in an 18th century constitution are required, they must be made ultimately with the approval of the people through the amendment process.

The present Supreme Court clearly flunks that reasonable and long accepted test. So what can the people of Vermont do about it?

Until 1974 there was a relatively straightforward remedy. Justices were subject to reelection by the legislature every two years. No Supreme Court justice has been denied reelection in this century. Since 1974 the legislature has reelected justices on a six year cycle. This last occurred in 1999, and although 71 votes were cast against Justice Dooley, the architect of Brigham, the legislature handily reelected all three Brigham justices. There will be no further such opportunity until 2005.

Then there is the atomic bomb remedy, impeachment. No Vermont justice has ever been impeached. The grounds for judicial impeachment in Vermont are not spelled out beyond "maladministration". Most would agree that they include insanity, senility, criminality, absenteeism, treason, bribery, and self-interest, none of which are at issue in the current Court. Whether a justice can properly be impeached for abandoning the peoples' constitution to impose his own version remains an open question.

Then there is recall of judges. In 1986 California voters recalled two Supreme Court Justices, not for any of the above reasons, but for their refusal to enforce capital punishment. The Vermont constitution contains no provision for recall.

Theodore Roosevelt, to liberal applause, offered another remedy in 1912: if the Court strikes down a legislative enactment, the legislature or the people can put the overturned law out to referendum. If the voters approve it, the Court decision is thereby overturned. This has never been tried anywhere. No state Supreme Court today would countenance such a result.

In 2003 the legislature can start the process to amend the constitution to overturn a specific decision such as Baker. Sen. Vince Illuzzi offered such an amendment last May, but Senators rejected it 9-21. But even adoption of such an issue-specific amendment would not deal with the underlying problem of the Five Supreme Legislators doing the same thing over again when another suitable case came their way. It would take years for a conservative governor to make over the court through new appointments. The oldest current justice, James Morse, does not face retirement until 2010.

One could envision a running battle between legislature and court. The court strikes down a statute. The legislature passes a slightly different statute to replace the one struck down, or a law prohibiting a state official from carrying out the challenged decision (i.e., imposing a civil fine on a town clerk who issued a gay marriage license). Plaintiffs secure a new Supreme Court decision of unconstitutionality, and so on until somebody blinks. Something like this happened in West Virginia, which refused nine U.S. Supreme Court orders requiring it to compensate Virginia for its share of that state's pre-Civil War debt. In 1919, after 41 years of fruitless negotiation and 13 more years of Supreme Court litigation, West Virginia gave in and paid.

Such a running battle might be the best a legislature could do to rein in a runaway Court, at least until 2005 when the Five Supreme Legislators can be dismissed. That strategy would require the cooperation of House, Senate, and Governor,two thirds of which are not likely to be so inclined during the next two years.

To rein in this Court, the Court's critics will probably have to shoulder the task of keeping the judicial activism issue high in the public consciousness for four more years, and voters will have to pay special attention to the views of the legislators they elect in 2004.

More from the Five Supreme Legislators
December 1999

Once again the Five Supreme Legislators have spoken, in a decision that goes beyond any holding by any state supreme court in the country. This time the Court applied a constitutional provision in an imaginative way that no one could have imagined even five years ago.

The Court's holding in "the Gay Marriage Case" was this: "the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." This was not enough for Justice Denise Johnson, who held out for declaring that the gay and lesbian plaintiffs not only had to enjoy equal benefits, but also were constitutionally entitled to be "married".

The Court's decision is something of a mixed bag. First, four of the five Justices stopped short, for the time being, of discovering in the 1777 Constitution the existence of a "right" for same-sex couples to marry. This had an enormous practical effect, in that the decision does not invite same-sex couples to visit Vermont, get married, and return to their home states to demand the privileges and benefits of marriage. And unlike the Brigham case of 1997, the Court thankfully did not attempt to dress this decision up with falsified citations and bogus history.

Having said that, the Gay Marriage case exhibits all the other defects of the Court of What's Happenin' Now jurisprudence. Chief among them is the Court's eagerness to inject its own contemporary content into 18th century phrases to mandate actions which were hitherto inconceivable. "The challenge", writes Chief Justice Amestoy, "is to remain faithful to that [18th century] historical ideal, while addressing contemporary issues that the framers undoubtedly could never have imagined." This "challenge" is an irresistible invitation to the Court to once again become a supreme legislature.

Historically, the clear purpose of the "common benefits" clause, as it first appeared in the Virginia Bill of Rights (1776) and then in our constitution of 1777, was to prevent a little gang of insiders from ripping off the good people of the state. Of great concern to the framers was the British example of hereditary privilege, and the possibility of favored cronies getting the government to grant them lucrative monopolies in banking, trade, shipping, toll bridges and the like.

The marriage law, however, was not some special deal to allow a politically connected few to enjoy marriage with all its benefits, while everyone else was forced to live in sin. It was always a general law: any man and a woman could obtain a license to marry. To be faithful to the words and intent of the constitution, the Court should have said "the law allows any man to marry a willing woman, and any woman to marry a willing man, providing they are of age, competent, unmarried, and not close relatives. This is a benefit common for all. Just because these plaintiffs don't choose to marry somebody of the opposite sex is their preference, but it's not a cause for constitutional complaint. If our elected legislature decides that some other collection of people should enjoy the privileges and benefits associated with 'marriage', it will amend the law accordingly. Court adjourned."

The Court, however, shied from this politically incorrect construction. Instead it explained how the legislature had undercut the rationale of the marriage statute by approving lesbian adoptions. The Court went on to announce a new law, in its opinion "premised on an appropriate and overriding public interest", bearing "a just and reasonable relation to the governmental objective", "recognizing our common humanity". The legislature was instructed to fill in the details.

Until recently courts presumed that legislatures acted on a rational basis, and a court could overturn their acts only when they flew in the face of an explicit constitutional provision, or met the difficult test of being arbitrary and capricious. Now our Five Supreme Legislators determine not merely what is arbitary and capricious, but what is appropriate, overriding, just, reasonable, and humane.

What if the legislature declines to adopt a domestic partnership law satisfactory to the Court? Then, says the Chief Justice darkly, the Gay Marriage plaintiffs can come back and reopen the question of "marriage" that the Court seems to have settled. This is a powerful threat. If the legislature doesn't act to the Court's satisfaction, the Court is saying that it just might draw new and expanded boundaries for "marriage" to meet its own ideas of good legislation.

There is little doubt but what a majority of our legislators lack the will to defy this latest judicial mandate. They proved that when they reelected the Brigham Three last spring. The Court, Justice Johnson excepted, may be satisfied with a domestic partnership law for gays and lesbians, at least until the common benefits provided in it are sought by same-sex heterosexual couples, brothers and sisters, bisexual foursomes, polygamists, polyandrists, and who knows what, all of whom may see the Green Mountain State as a new land of opportunity for asserting our common humanity, with full enjoyment of the privileges and benefits of marriage.

Regulation and Taxation Through Litigation
August 1999

Victor Schwartz is one of America's most distinguished commentators and practitioners of tort law. He has been dean of a major law school, principal drafter of the Model Uniform Product Liability Law, and co-author of the most widely used law school textbook on torts. He is general counsel of the American Tort Reform Association and a senior partner in a large Washington law firm.

His national reputation brought a roomful of lawyers and legislators together in Middlebury earlier this month to hear Schwartz (who vacations at Lake Dunmore) speak on a very timely topic: "Regulation and Taxation through Litigation". The seminar was sponsored by the Ethan Allen Institute.

Most Vermonters believe that popularly elected legislatures vote to impose taxes, and their members answer to the voters at the next election. We believe that regulation is carried out by state regulatory bodies, like the Environmental Board, which (supposedly) apply the laws enacted by the legislature. We believe litigation is a method for resolving in a courtroom the competing claims of two or more parties, Victor Schwartz told us to wake up.

There's a new game in town, and Schwartz handed out a recent op-ed piece from Robert Reich, President Clinton's very liberal ex-Secretary of Labor, that explains it. "The era of big government may be over, " Reich wrote, "but the era of regulation through litigation has just begun." Reich argued that Congress, since 1994 under the control of pro-business conservatives, will not enact liberal proposals for regulating and taxing the tobacco and firearms industries, and it won't change the antitrust laws to benefit the competitors of Microsoft. Therefore, wrote Reich, forget Congress - we'll sue. He concedes that this regulation through litigation isn't efficient, and may not serve the public interest, but "perhaps regulating through lawsuits is better than not regulating at all."

The result of this new strategy has been a rash of novel lawsuits and expansive judicial holdings, pressed by flamboyant trial lawyers allied with liberal politicians. Thanks to their aggressive advocacy, courts are abandoning long- established tort law precedents to hand down what only yesterday were considered to be purely legislative decisions. In 87 recent cases that Schwartz catalogued, courts have overturned legislatively-enacted limits on extravagant damage awards.

Courts are even awarding damages where no injury has been demonstrated. As an example of the latter, Schwartz cited a recent case where the Louisiana Supreme Court held that an asbestos manufacturer had to pay a huge judgment in a case where the plaintiff workers were in perfectly good health, on the theory that some day they might get sick. While the workers were being "monitored", their lawyers would be getting very rich. (The state legislature subsequently removed the basis for the holding.)

Here in Vermont, a group of out of state trial lawyers appeared three years ago to propose to the attorney general that he appoint them to sue the tobacco industry. Unlike traditional tort suits, where a lifelong smoker seeks damages for health injuries from smoking, this new attack would be brought on behalf of the State itself. Instead of putting smokers on the witness stand where they could be cross-examined, the State would only need to exhibit Medicaid statistics on smoking-related Medicaid expenses. When the tobacco companies agreed to a multi-state settlement earlier this year, Attorney General Sorrell's "special assistant attorneys general", who had done little more than fill in the blanks on a standard complaint, became entitled to collect $10.5 million of the state's award.

The ultimate goal of this "regulation and taxation through litigation" is to force selected industries to the wall. It threatens them with extinction, then lets them off in return for accepting judicially-decreed regulatory controls and paying what amounts to extortion, up to a third of which ends up in the pockets of the plaintiff attorneys. This is profoundly anti- democratic. No legislator ever votes on this regulatory control, and the cost of the judicially-imposed regulations turns up as an unlegislated hidden tax in the price of the products. Tobacco, affluent but unpopular, has already been put through this wringer. Firearms manufacturers are facing dozens of extortion suits from city governments. The fast food, pharmaceutical, alcohol, automotive, and possibly even the dairy industries will be next. Maybe when Sorrell's "special assistant attorneys general" turn up in Washington County Superior Court to sue Ben and Jerry's for making artery-clogging high butterfat ice cream and cleverly marketing it to unsuspecting minors, some Vermonters who like the idea of "regulation and taxation through litigation" will take a different view of the matter.

Plain Language Baffles Supreme Court
June 1999

On June 11 the Vermont Supreme Court, 455 days after oral argument, finally issued an opinion in the Chittenden school tuition case. (By comparison, the Court produced its sweeping constitutional decision in Brigham only 51 days after oral argument.) Unlike in Brigham, where the Court invented a new right out of thin air, in Chittenden the Court stared at the plain language of the Vermont Constitution and couldn't understand what it said. The Chittenden case arose when the town voted to pay tuition for 13 children at the Catholic Mt. St. Joseph Academy in nearby Rutland. The Court's holding, concisely stated, is this: Article 3 of the Vermont Constitution provides that "no person... can be compelled to.. support any place of worship." Religious instruction in an elementary or secondary school is religious worship. A town's payment of tax dollars as tuition to a religious school, with no restrictions on such payments to prevent them from being used for religious instruction, is prohibited by Article 3.

The Court of What's Happenin' Now, as it customarily does, solemnly declared that the plain words of the Constitution and the associated acts and statements of its authors are not enough to make clear what a provision ought to mean for us today. Then the Court proceeded to wander off from the plain language of Article 3. The plain language is "No person can be compelled to support a place of worship." The central meaning, amply attested to in contemporary history, is that "no person can be compelled to support a place of worship." Even though there were no religious schools in 1786, let's concede, for purpose of argument, that public tax dollars used to pay for pervasively sectarian secondary education is legally identical to paying to "support a place of worship". The key language of Article 3 is "No person shall be compelled." As the Court notes, an 1801 Vermont law providing for support of ministers recognized this problem. It authorized a taxpayer to opt out of paying for churches and ministers if the taxpayer found their teachings to be repugnant to his conscience. The Court notes with approval that even this exemption drew criticism from the Council of Censors, and the Ministerial Act was soon repealed. But a perusal of the actual Council of Censors report of 1806 yields no coherent argument as to why the Ministerial Act violated Article 3. Instead, the Council rested its case on consequences, namely, that the act "engendered ill will", presumably directed by those willing to support churches against those who wanted their money back. This Court, however, grasps whatever reed may be available to make its point.

A plain reading of Article 3 would conclude that, as the Article says, "No person can be compelled to support a place of worship (or a religious school)". As the Court has often stated, the provisions of the Bill of Rights are self executing, unless they have something to do with protecting property rights, in which case they are not. Taxpayers aggrieved by the use of their tax dollars to pay tuition for children attending faith based schools chosen by their parents in tuition towns which have voted to authorize it, could simply be given a discount, upon request, to relieve them of paying the disputed amount. In the Chittenden case, $39,000 was budgeted to pay tuition for 13 children to Mt. St. Joseph's Academy for school year 1996-97. The property taxes collected by the town for education that year were $1,417,607, from about 700 property tax payers. The MSJ tuitions would have made up 2.7% of the education tax bill.

What fraction of the taxpayers would actually take a stand on the constitutional "compelled support" clause to demand a discount? If half demanded a discount, the available tuitions for MSJ would be reduced from $3000 to $1500. Some parents would not be able to afford the $1500 difference, and would switch their children to Rutland High School (tuition: $6672). If ten of the 13 did so, the town's tuition bill would increase from $39,000 (13 to MSJ) to $71,220 (10 to RHS, 3 to MSJ at $1500). Though illustrative, this is now an unreal exercise, since Act 60 has superseded the Foundation plan. It does, however, suggest that under such a "discount to prevent compelled support" arrangement, few taxpayers not associated with the public schools, the teachers union, or the ACLU would bother to request a small discount.

Admittedly, the Chittenden case did not come before the Court as an action by an aggrieved taxpayer compelled to support religion against his will. It came as an "establishment of religion" case between town and state, and was decided by the Court as a "compelled support" case. But in any case the 2000 legislature, given the political will, could easily counter the ruling. The most obvious remedy (there are others) would be for the legislature to explicitly allow tuition towns to pay tuition to faith-based independent schools, and let those taxpayers who object to a small fraction of their state property taxes being used for that purpose take a discount or obtain a refund. That's exactly what Article 3 contemplated. Such a bill would of course face fierce resistance from the public educational establishment. Their interest is not so much protecting the rights of dissenters, as preventing Vermont parents from choosing the kind of education that seems to them best suited for their children.

Stopping the Next Predatory Lawsuit
March 1999

"Guns must become the next tobacco." So says the nation's leading gun control organization, the Center to Prevent Handgun Violence. What the gun control group means is that the same predatory legal tactics that have produced multi-billion settlements between the states (including Vermont) and the tobacco industry are now to be used against the nation's firearms industry.

Like tobacco, firearms are politically incorrect among the nation's liberal elite. But unlike the use of tobacco, which is demonstrably harmful to the user and entitled to no special legal status, the ownership of firearms has a powerful history of explicit constitutional protection. Firearms were seen by the Framers of the Federal and Vermont constitutions as the people's indispensable means of resisting tyranny. That's why they wrote the Second Amendment in the U.S. Bill of Rights, and Article 16th of Vermont's Bill of Rights: "the people have a right to bear arms for the defence of themselves and the State."

Of course this doesn't matter to predatory trial lawyers and their willing partners in governments. Having pocketed enormous legal fees from extorting the tobacco industry, the trial lawyers (many of them the same ones) are going after the next pot of gold. Already four cities (Chicago, New Orleans, Miami and Bridgeport) have filed huge liability lawsuits against the firearms industry. The purpose of these far fetched suits is, plainly, to cripple an industry despised by liberal opinion, while not incidentally making a bunch of politically generous trial lawyers even richer. The racket works just like it did against tobacco. A dozen law firms pony up $100,000 each to underwrite the venture. Then they show up at state capital and city hall, offering to bring suit against the targeted industry in the name of state or city.

The state or city doesn't have to put up any litigation costs. If the lawyers win, they get a huge chunk of the settlement. If they don't, it costs the taxpayers nothing. What attorney general or progressive mayor could resist such a sweet deal?

Attorney General Bill Sorrell, strongly backed by Gov. Dean, jumped at such a deal when tobacco was the target. The two of them even persuaded the 1998 legislature to enact a special law stripping the tobacco industry of its legal defenses in court, certainly the most ethically shabby performance in this state in a long time. Last month the Georgia legislature passed a bill prohibiting Georgia cities from getting in on this squalid little game. Similar legislation sponsored by eleven Senators headed by Sen. Julius Canns (R-Caledonia) has been the subject of a Senate Judiciary hearing in Montpelier. The less restrictive Vermont bill (S. 32) simply says that neither the attorney general nor a city or town can get into a civil liability suit against the firearms industry without first getting permission from the General Assembly.

Sorrell doesn't like this at all. He thinks it violates the "common benefits" clause of the Constitution for the legislature to limit the kind of cases that can be brought by an officer (him) created and financed by the legislature. Of course, last year Sorrell didn't mind singling out the tobacco industry for an uncommonly negative benefit when he knew that would guarantee a cheap victory for his own lawsuit. Burlington Mayor Peter Clavelle, newly re-elected, is also strongly opposed to any legislation that would limit the litigation deals he might want to make.

The partisans of this latest version of legal extortion against a politically incorrect industry have no intention of stopping with firearms. Yale Prof. Kelly Brownell is licking his lips over suing McDonald's for selling burgers. Caffeine is high on the hit list. The New York City Anti-Dairy Coalition says that "milk products, like tobacco, are an enormous threat to the health of both children and adults." Sorrell is unlikely to sue the dairy industry, but he has pointedly refused to rule out a suit against firearms or anything else.

It is time to call a halt to this whole contemptible business. If a defective gun blows up in a state trooper's hand, sure, the state should sue for damages. But the use of the predatory lawsuit to victimize a politically disfavored industry ought to offend every fair minded person. At the very least, the representatives of the people ought to pass judgment on the ethics and merits of such a suit before attorneys general and mayors succumb to the trial lawyers' big money temptations.

Who Owns The Vermont Constitution?
February 1999

Who owns the Vermont Constitution, the people or the lawyers? That question is at the heart of the current debate on whether the "Brigham Three" - Justices Dooley, Johnson and Morse - ought to be reelected by the General Assembly. Now that the controversy has reached the front pages of Vermont newspapers, it is possible to see clearly the views of the opposing sides. And such a comparison is highly instructive.

My side, which might be called the democratic or populist side, holds that the Constitution belongs to the people of this state; and that when unelected Justices, in a "raw exercise of judicial power", hand down a sweeping opinion that invents a new constitutional right manufactured out of whole cloth, in a mere 51 days, over the objections of the trial judge, without a trial record, making use of a thoroughly bogus history and deliberate misrepresentation, for blatantly political purposes, the representatives of the people ought to relieve those Justices from any further judicial responsibilities.

The other side, which might be called the aristocratic or elitist side, says this: that the need for "judicial independence" requires the substance of the opinions of the Supreme Court to be completely beyond public examination; that non-lawyer legislators lack the credentials to pass judgment on judicial opinions; that in voting to retain Justices, legislators may only consider such "neutral principles" as whether the Justices cheated or stole, or favored their relatives, or went bonkers in the court room, or failed to show up for work.

In the view of these partisans, the Constitution belongs to the lawyers and judges. The lawyers testifying on behalf of the Brigham Three at the February 16 retention hearing scarcely attempted to defend the Justices against documented charges that they shamelessly rewrote the Constitution and violated their oath of office. They simply declared, in so many words, that the legislators had no business inquiring into the content of opinions. What could anyone but a lawyer possibly know about such esoteric matters?.

The Brigham Three are piously refusing to enter into any discussion of their political ruling in Brigham. Justice Denise Johnson told the Retention Committee that the Judicial Conduct Code requires that "judges not engage in public debate about their decisions." Then in the next breath she went on to engage in just such a debate by attacking Brigham critics for making "arguments that are outrageous, unfounded, and factually incorrect." But the Code of Judicial Conduct, adopted by the Brigham Three in 1994, specifically says that Justices may "respond to attacks on the candidate's record." Justice Johnson can't even remember the rule she voted for. Much of the heavy lifting for the Brigham Three is being done by the media.

Leading the pack is AP Bureau Chief Chris Graff, whose column appears in most of the state's largest papers. (Oh? You thought AP merely reported the news?) His feeble argument for the Court: "Brigham...merely articulated an inequity most all acknowledged," as if the Supreme Court is in the business of "articulating inequities", instead of ruling on the plain language of the Constitution.

The lawyer's guild has plans to make sure Justices never again have to suffer the indignity of having their opinions questioned by the peasants. Justice Dooley himself has taken the lead on this. In a chapter in a book published this month he ruefully noted the two judicial retention "near misses" of 1996, and announced "the emergence of a broad consensus" - undoubtedly among his lawyer friends - "that the retention process is flawed and must be repaired." To those who share Justice Dooley's "none of your business" mentality, the retention process is "flawed" because people outside the legal fraternity still have a voice in deciding whether judges have been faithful to their oath of office.

It's too bad that Thomas Jefferson, who conceived Vermont's current retention process in 1821, is not around to give an answer to that one. "It is a misnomer to call a government a republic," he then wrote, "in which a branch of the supreme power is independent of the nation." Just so, and the people ought to remind their legislators of it.

The Brigham Justices: Should They be Denied New Terms?
January 1999

(The following is adapted from the debate presentation by John McClaughry at the Ethan Allen Institute-sponsored debate on Judiciary Retention held in the House Chamber on January 21, 1999. These remarks were preceded by an opening statement by Frank yan. For the essence of his arguments, see "Who Controls the Supreme Court?" in the Institute newsletter of October 1998, also on the web site.)

Professor Bryan has explained why the Constitution belongs to the people, and is not the exclusive property of the Five Supreme Legislators. He has pointed out that it is the duty of the elected representatives of the people to resist judicial usurpation. He as shown that the idea of judicial integrity includes fidelity to one's oath of office, in which a Justice pledges not to do anything injurious to the Constitution.

My task now is to exhibit the Court's political, result-oriented performance in one vitally important case, Brigham v. State. I will show in some detail how the Dooley Court abandoned its constitutional duty for the purpose of amending our constitution to require the educational financing scheme long favored by political activist John Dooley.

I have referred to the Court of 1997 as the Dooley Court. Why? Justice Dooley was not its Chief Justice. But there can be little doubt that Justice Dooley had emerged as the intellectual and administrative leader of this Court.

I do not argue that Justice Dooley is a Rasputin with mysterious power over Justices Morse and Johnson, leading them down the slippery slope of judicial activism at his will. A review of twelve of the most controversial opinions of the Dooley Court shows that Justice Morse and especially Justice Johnson have frequently gone their own way, sometimes quite outspokenly so.

Although the Dooley Court has issued more than a few opinions that illustrate regrettable judicial activism, with one mighty exception we do not argue that they constitute grounds for dismissal. That is because, with the exception of Brigham, all of the other controversial cases involve statutory construction. The Court's mistakes can be corrected by the legislature and the Governor. Brigham is different. In Brigham, the Dooley Court simply invented a new constitutional right out of whole cloth, and ordered its recognition by the legislature, governor and people of this state. Let us then examine Brigham - the process, the argument, and the decision.

Brigham began in 1995 when the ACLU brought suit. Their goal was to get the Court to mandate equality of educational resources and (according to them) educational opportunity.

The Brigham case began in Lamoille Superior Court under Judge Meaker. The ACLU lawyers offered the argument that the wide disparity or property tax resources per pupil among the towns created a disparity in educational opportunities which denied some children's fundamental right to an education and therefore violated the Vermont constitution. Now, where can this right to education be found? The only sentence in our Constitution that mentions education is Section 68, the operative part of which reads: "... a competent number of schools ought to be maintained in each town."

Well, now. That requirement was satisfied no later that 1870. Judge Meaker listened to the arguments, looked at that provision, decided, quite correctly, that there is no fundamental right to education contained in the Vermont Constitution, and issued summary judgment on this point to the state. On questions involving towns and taxpayers, he set the case for trial. What happened next is curious. Over the objection of Judge Meaker, both the state and the ACLU appealed to the Supreme Court for an interlocutory opinion. When the appeal arrived at the Dooley Court, it enthusiastically agreed to take the case out of Judge Meaker's hands and settle it without a trial. Justice Morse, to his credit, strongly opposed the Court accepting the appeal without a trial record. Now why was Dooley Court so keen about deciding Brigham then and there?

Let's go back to 1987. John Dooley was Administration Secretary. Gov. Kunin, with a surplus building, was eager to reform educational finance. John Dooley was the man in charge, "the man in the chair", as he later put it. He was Mr. Kunin Education Finance Reform. And what did he produce? The Kunin Foundation Plan. What was unique about the Kunin Foundation Plan? For the first time it would have "recaptured" the tax base of rich towns. This was the forerunner of Act 60. John Dooley waged a good fight, but lost. The House rejected the key ingredient of his Foundation Plan - recapture - and passed the remainder. But John Dooley lived to fight another day, as a Justice of the Supreme Court. Fast forward now to late 1996. The Court overruled Superior Judge Meaker, accepted the interlocutory appeal, and went to work at what for it was breakneck speed. The Court scheduled oral argument, even before the reply briefs had been submitted. Fifty one days later it issued the most sweeping constitutional decision of the 20th century.

Of the scores of court cases on educational finance, only one has ever issued from a state supreme court with no trial whatsoever: Brigham v. State of Vermont. Even members of the bar who are favorable to the result in Brigham have been sharply critic of this startling departure from orderly judicial process to reach a politically important result in a mere 51 days. By contrast, the Town of Chittenden's case for paying tuition for some of its children to Mount St. Joseph Academy went to oral argument before this Court last March. After more than 300 days the Court has still had nothing to say about it. To discover a fundamental right to education in Section 68, the Dooley Court offered a history of Vermont which is thoroughly bogus, and incorporates what a friend of the Brigham holding, Prof. Peter Teachout, has termed "intentional deception".

Consider this: every court is obliged to examine the plain words of a constitution, and the facts and circumstances surrounding its enactment, to derive the correct meaning. That is inherent in the Justices' oath to do nothing injurious to the constitution - as for instance, writing their own constitution to justify politically favored results. In Brigham, the court leaned heavily on one address to the legislature by Gov. Crafts in 1828, 42 years after adoption of the constitution. And Gov. Crafts did indeed expound on the virtues of education. But what did the legislature then do?

After being dazzled by the oratory of Gov. Crafts, the legislature received a report from the textbook commission finding it hopeless to try to standardize textbooks among the towns. They voted $100 to pay the salary of the Commissioner of Education. They took all the remaining money from the education trust fund and used it to build a new state house. Then they went home. Five years later the legislature abolished the state board of education. In fact, it was not until 1864 that the great grandchildren of the authors of the 1786 Constitution finally decided to require universal free public education in this state. But the Dooley Court would have us believe that in 1786 the framers fully intended to create an enforceable right to public education, a right that required substantially equal tax bases per pupil throughout the state.

If you can believe that, you can believe in leprechauns, space aliens, and Nixon's innocence. In addition to the bogus history, the Dooley Court engaged in intentional deception. It cited in support of its case the sentence in our first constitution of 1777 that reads in part "A school or schools shall be established in each town, by the legislature for the convenient instruction of youth..." The Court deliberately omitted the rest of the sentence: "...with such salaries to the masters, paid by each town, making proper use of school-lands in each town, thereby to enable them to instruct youth at low prices." Citing the rest of the sentence completely undercuts the Court's brusque dismissal of any rational basis argument for local control of public education. The Court knew that, and so the Court omitted the rest of the sentence. This is intentional deception. Rush to judgment without trial. Bogus history. Intentional deception. How does all this square with fidelity to a Justice's oath to do nothing injurious to the constitution? There's more.

As Judge Meaker convincingly wrote, there is simply no right to education in the Vermont Constitution. Enthusiasts for educational tax equalization well knew this. In fact, in 1996, with Brigham already in the courts, the Vermont House passed a resolution urging the Senate to approve a constitutional amendment to install an enforceable right to a thorough and efficient education in the Vermont constitution. The resolution was urged by the people who a year later were cheering Brigham and enacting Act 60. So how did the Court extract this sweeping right to education, which even the future friends of Act 60 could not find in the constitution? Let's go back a decade to explore Justice Dooley's views on constitutional interpretation.

Back then, he said "If the development of state constitutional doctrine gets in the way of [constantly managing and keeping our society and our political institutions modern and responsive to a very difficult and changing world],... if we are not on the cutting edge of future needs ... then I think the people of our states should and will say 'well, that was a nice little exercise you were engaged in, but it is not relevant to this world', and through their ability to amend the constitution they will change it." In the same talk Justice Dooley declared his willingness, in dealing with constitutional issues, "to wander into never never land and produce a good result that will stand the test of time." Now here is a Justice, only a year onto the Court, baldly announcing that the court cannot settle for merely interpreting out of date constitutions as they were intended by those who drafted and adopted them. This sort of thing is not for Justice Dooley! He tells us that his Court must do what it has to do to meet modern demands and expectations. Justice Dooley's vision defines the Court of What's Happenin' Now.

This is emphatically not the Court defined by ur Constitution. Now look in Brigham again. How did the Dooley Court manufacture a right which simply isn't there? Attorney Gensburg explained how to do it - not that the Dooley Court needed much explanation. His brief argued that when the desired right can not be rea ly found in the constitution, the Court can find rights "implicitly recognized in the Constitution." If that doesn't get the Court to where it wants to go, then it can switch to extra-constitutional sources "deeply rooted in Vermont's traditions and conscience" or "implicit in the concept of ordered liberty." In short, they were saying "please legislate a new constitution for us, because we really want to win this case."

And obligingly, in Brigham, the Dooley Court solemnly declared that "equal protection of the laws cannot be limited by eighteenth century standards." In other words, while none of the authors of the constitution could have imagined that it declared any right to "equal educational opportunities", those benighted framers were "limited by eighteenth century standards", and today's judges are free - indeed they are required - to interpret the constitution to declare whatever they think is "deeply rooted in Vermont's traditions and conscience", that is, whatever is thought by the Five Supreme Legislators to be best for the people. Prof. Teachout, who does not support dismissing Justice Dooley, nonetheless calls this a "raw assertion of judicial power." This is the theory of judicial legislation pure and simple. It is judicial usurpation of the legislative function.

It is judicial usurpation of the constitution- writing function of the whole people. It is injurious to the constitution and an affront to the rights of the people contained in that honored document. That it was done by the Court at breakneck speed, through an extraordinary process that denied a trial and a trial record for appeal, compounds the offense. At the time today's Vermont constitution was being put into effect, George Washington was President. Like all of the framers of the national Constitution, President Washington was deeply concerned about judicial usurpation. In his Farewell Address, President Washington said: "If in the opinion of the people, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates.

But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed." Ladies and gentlemen, elected representatives of the people of Vermont: when you examine the Dooley Court's process, argument, and opinion in Brigham, you will find yourself staring full in the face of judicial usurpation. We ask you to defend the people's constitution against those who have usurped it. We ask you to use the constitutionally prescribed remedy to excuse from further service the three Justices who, from the bench of the highest court in our state, ignored their judicial oath, violated the constitutional provision for separation of powers and willfully discarded the principles of constitutional interpretation that have served the people of this state well for over 200 years.

Who Controls the Supreme Court?
September 1998

"Shall the following supreme court justices be retained in office?" That is the question that will face the 1999 general assembly, with respect to Justices John Dooley, James Morse, and Denise Johnson. These are the three sitting justices who collaborated in the momentous and hotly controversial Brigham ruling of 1997, which led to the equally momentous and controversial Act 60.

This is a good time to understand just why Vermont has a judicial reconfirmation process, because vigorous efforts are already being made by friends of Act 60 and the Court to prove that the general assembly has no business denying retention to a justice on the basis of his or her judicial record.

Article II, section 5 of the Vermont Constitution (dating to 1786) states, "The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others." Both legislative and executive branches remain under popular control. If they infringe on each other, or the judiciary, they can be disciplined by the people through biennial elections. But how can the judiciary be subjected to this cardinal principle of popular sovereignty and republican government?

One method is impeachment. It has only rarely been used anywhere, and then only when a judge was proven to be criminally corrupt. (Congress has successfully impeached and removed a Federal judge on only seven or eight occasions in 200 years.)

Some other popular check was seen to be necessary. For the first 192 years of Vermont's history the instrument of popular control of judges was legislative election. As Prof. Sam Hand of UVM has written, up through 1825 "judges did not enjoy job security. They faced annual elections and frequently involuntary retirement." But by the late 20th century involuntary retirement had nearly vanished. Judges moved automatically up through the chairs, from chief superior judge to associate justice to, eventually, chief justice. In 1974 the voters ratified the "Judicial Amendment" ardently backed by the lawyers and judges. This changed the constitution to allow appointment and confirmation instead of legislative election, but in a bow to the principle of popular sovereignty it added periodic (6 year) reconfirmation by the representatives of the people. This was, interestingly, Thomas Jefferson's precise recommendation for curbing runaway judges: "They [the judges] would be under some awe of the canvass of their conduct which would be open to both houses [of the legislature] regularly every sixth year", he wrote in 1821, when popular anger at Chief Justice Marshall's court was at fever pitch. Justices Dooley, Morse and Johnson have applied for that 6-year reconfirmation in 1999, and legislators will vote on them during next year's session.

No one doubts that a justice can properly be denied reconfirmation because of using his position to advance his own financial interests, or partiality in appeals brought by friends, or drunkenness, or criminal behavior, or senility.

The pressing question today is whether a majority of the 180 members of the general assembly can properly deny justices reconfirmation on the grounds that they participated in a politically motivated, historically unsupportable, and deliberately deceptive constitutional interpretation in defiance of established precedents and procedures. The answer is easy: of course they can. Justices take an oath of allegiance in which they solemnly swear that they will not "directly or indirectly, do any act or thing injurious to the Constitution." If a majority of the elected representatives of the people believe that the Justices, in authoring a far-reaching constitutional opinion, violated that oath, they have the power, and indeed the duty, to deny those justices reconfirmation.

Whether Justices Dooley, Morse, and Johnson, in authoring Brigham, did something injurious to the Constitution is for their critics to demonstrate in the months ahead. If it is demonstrated, the errant justices deserve to be sent packing. Otherwise, the people will be forced to live under a judicial tyranny for which there is no popular correction. That is not what the founders of our democratic government had in mind.

Sharp Practice
April 1998

Over the past 220 years the Vermont General Assembly, like any democratically-elected legislative body, has done some fine and memorable things, and some foolish and costly things. On no occasion I know of, however, have our legislators done something truly dishonorable. That, alas, is about to change.

At issue is a bill to change the legal rules of the Vermont court system. The purpose of the bill is to guarantee that one particular plaintiff - the state of Vermont - will be able to go into its own courts and extract at least $25 million from one particular group of defendants, Big Tobacco.

Now one can make a credible case that the tobacco industry has done the world a lot of damage. Anybody with a high two-digit IQ ought to be able to figure out that repeated inhalation of a potent mixture of nicotine and carcinogenic tars can not be good for the lungs. There is good mortality data that shows that on the average regular smokers die eight years earlier than non-smokers. One can make an argument that the manufacturers of tobacco products have, over the years, withheld important information from their customers, manipulated the nicotine content of cigarettes to encourage repeated use, and unscrupulously promoted the sale of tobacco to boost their earnings. The defendant industry has a lot to defend.

But what Attorney General William Sorrell is promoting in the General Assembly goes far beyond a tort lawsuit against Big Tobacco. His bill (H. 749) declares that "affirmative defenses normally available to a defendant are abrogated to ensure full recovery." Sorrell's idea of justice is to rig the case in advance so he can't lose.

Sorrell's bill would allow the State to bring a tort case against Big Tobacco not in the name of Medicaid patients with smoking-related afflictions, but in the name of the State itself. Further, the defendant's liability could be established by statistics, not by exhibiting individual victims. That is, if national studies show that, say, 12% of all Medicaid expenditures are smoking-related, then Vermont could demand that the tobacco industry pay 12% of Vermont's Medicaid costs, year after year.

In hundreds of tort cases brought by individual smokers around the country, Big Tobacco has argued that the plaintiff knowingly assumed the risks of smoking and should be responsible for the health consequences. Juries almost always reject the plaintiff's argument that he was brainwashed into damaging his health by that rascal Joe Camel. Sorrell wants a case he can win, so his legislation would simply strip away these defenses and declare the state the victor. Gov. Howard Dean MD, who once accepted a campaign contribution from Big Tobacco and when exposed, ostentatiously gave it to his favorite charity instead of giving it back, is strongly on Sorrell's side.

The genesis of Sorrell's tobacco cases is interesting. There is a group of tobacco tort lawyers, headed by Steve Berman of Seattle, Richard Scruggs of Mississippi, and Ron Motley of South Carolina, who have gone from state to state to sell their services on a contingency basis to attorneys general eager to pocket big bucks from the much-despised tobacco industry. These three and others appear as "special assistant attorneys general for the state of Vermont" in Sorrell's pending 1997 case declaring tobacco a public health hazard and seeking multimillion dollar fines and damages. The same lawyers will undoubtedly appear on Sorrell's Medicaid recovery brief, which will be filed just as soon as Sorrell can get the legislature to change the rules to ensure a victory.

Out of 39 states accepting the services of this legal SWAT team, only one (Maine) is paying legal fees on a straight hourly basis. In Texas, a group of tort lawyers claimed a contingency award of $2.3 billion for their services, producing a huge voter backlash. In Vermont, these "special assistant attorneys general" handling the state's case will get up to 15% of the multimillion dollar award which H. 749 makes virtually a sure thing, depending on how soon the defendants cave in and pay.

The strategy for changing the legal rules of the game was apparently conceived at a tort lawyers' seminar at Harvard in 1994. The seminar was conducted by constitutional law Professor Laurence Tribe, nationally known for his lust for enormous legal fees and his willingness to defend any proposition that would increase his chances of receiving a Supreme Court appointment. The first state to actually change the legal rules to assure a plaintiff's verdict was Florida, which engaged Tribe (at $450/hour) to defend the 1994 law upon which H. 749 is modeled. Last week Sorrell presented a letter defending the bill's constitutionality from the eminent Professor Tribe to the Senate Judiciary Committee. It neglected to mention that Tribe was the architect of the strategy behind the bill and was pocketing six figure legal fees for defending it in other states.

H. 749 is explicitly targeted only on Big Tobacco, today's least popular defendant. But once this racket becomes ethically acceptable, similar legislation will give the state a sure-fire legal hunting license, aimed at one industry after another wherever a lucrative recovery appears possible. The state could sue liquor companies for the costs of alcoholism (after explaining away the state's wholesale liquor monopoly). The state could sue Ben and Jerry's for peddling artery clogging 15% butterfat ice cream, purposely made as tasty as possible to encourage addiction from childhood on.

Yes, a state legislature may change the rules in civil tort cases. It may be, as Professor Tribe urgently argues, that a legislature can change the rules on the eve of the State's filing its own lawsuit and get away with it, especially in a Vermont Supreme Court that has already held that your life belongs to the State. But earlier Vermonters with some sense of integrity about the conduct of public business would have a ready name for this sort of thing: sharp practice. If that is how William Sorrell, Howard Dean, Rep. Tom Costello, Sen. Helen Riehle, and Sen. Dick Sears want to be remembered, they are well on their way.

When the People Surprised the Politicians
February 1998

On March 3 voters in 52 Vermont towns will address a warning item that asks

    "shall the voters request that the legislators representing this town support legislation to create a citizens initiative process..?"

Under the proposed Citizen Initiative, a petition signed by 13,000 qualified voters would put a question on a general election ballot. If approved by the voters, the legislators elected at that same election would have to vote up or down on the question early in the ensuing legislative session.

The push for the Citizen Initiative is based on the ideas that (1) too often the politicians duck voting on issues that are popular with the voters, but dangerous for politicians; and (2) too often politicians vote to appease some well organized pressure group in Montpelier while ignoring voter sentiment back home. The Citizen Initiative would not bypass legislators, but it would give the people a way to force the legislature to respond to their concerns. It could be used proactively, to push the legislature to address an issue (decriminalize marijuana, restore capital punishment), or reactively, to undo unpopular legislative acts (repeal Act 60 and Act 15.) It is neither liberal nor conservative, but a populist measure, intended to give the people a greater voice in shaping the laws under which they live.

Twice in recent years the voters were called upon to pass judgment on what proved to be very controversial legislative work: the four-year term amendment (1974), and the so-called "equal rights amendment (ERA)" (1986).

In the first instance, the legislature, under enormous pressure from the League of Women Voters and all of Vermont's living ex-Governors, voted to amend the constitution to give four year terms to the governor and other constitutional officers. There was overwhelming editorial support for the idea. The votes to approve in the House were 130-6 and 120-22; in the Senate the votes were 28-0 and 25-3. Despite this strong legislative support, the voters rejected the four year term by a margin of 53-47.

In the case of the ERA, the disparity between politicians and people was even greater. The feminist movement, stung by the 1982 failure of the national ERA and the rejection of state ERAs even in states like New York and New Jersey, poured money and celebrities into Vermont to urge approval of the ERA, and thereby jump start their defunct national ERA campaign. The taxpayer-supported Governor's Commission on the Status of Women lobbied the ERA through the legislature. Feminist Gov. Madeleine Kunin ardently backed it.

No politician of any stature dared to stand before the ERA steamroller. The ERA swept through the House by votes of 134-11 and 124-24, and the Senate by votes of 27-2 and 25-5. But when the voters got a shot at it, they sent it down to defeat by a 52-48 margin.

In both cases the legislators produced huge majorities - 88% and 90% - for controversial measures, only to have the voters knock them flat at the polls. Somebody was clearly out of touch with the people back home.

The response of voters to the Citizen Initiative in 52 towns on Town Meeting Day may send a useful message to legislators: listen to the people who vote for you and pay your bills, not the lobbyists, pressure groups, celebrities, and party caucuses whose bright ideas won't fly in Bradford, Stamford, Richford and Hartford.

Speaking of Hartford, its town meeting vote will be of special interest. On February 17 the two Hartford Representatives, Lynn Bohi (D) and Ralph Lehman (D), voted against the Citizen Initiative in the House Local Government Committee, producing a 4-4 tie that defeated a motion to report the bill to the House floor. If the citizens of Hartford follow the lead of their selectboard, which voted 4-0 to put the question to the town's voters, their two Representatives may start to see things differently in Montpelier.

As Karen B. Horn of the Vermont League of Cities and Towns wrote in a recent commentary,

    "To disallow such a basic form of democracy as initiative at the state level is to the severe long term detriment of Vermont governance... The legislature could make a significant change in the respect it accords the voice of the citizenry by passing a citizen initiative bill."

    Just so.

Constitutional Principles: The Legislature, the Court, and Education Financing
April 1997

In its 220 year history the proud little state of Vermont has recorded a number of famous firsts.

Vermont's Col. Ethan Allen and his Green Mountain Boys were the first to strike an offensive blow against Great Britain when they captured the King's great fortress at Ticonderoga, a year before the Declaration of Independence.

Our 1777 Constitution was the first in America to outlaw slavery and to abolish property qualifications for voting. It also was the first written constitution in the world to require that "whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money." (This third "first" is rarely mentioned these days.)

The most recent Vermont first still needs some fact checking, but it is likely to stand up. Vermont now almost certainly has the first state Supreme Court in the nation made up entirely of government lawyers - that is, lawyers whose professional careers before becoming judges consisted largely or totally of employment by the government or by government funded programs.

Consider the backgrounds of the five justices who will now comprise Vermont's highest court.

    • Chief Justice Jeffrey Amestoy: Assistant Attorney General 1977-78; Commissioner of Labor and Industry 1982-84; Attorney General 1985-97.
    • Justice James Morse: Defender General 1976-81, before going to the Superior Court in 1981.
    • Justice John Dooley: Legal Aid lawyer, then Secretary of Administration for Gov. Kunin 1985-88 before being appointed to the Supreme Court.
    • Justice Denise Johnson: Assistant Attorney General 1980-88; chair of the Vermont Human Rights Commission 1988-90; then named to the Supreme Court despite never having tried a case .
    • Justice-designate Marilyn Skoglund: employee of the Attorney General's office from 1973 to 1993, then three years service as a District Court judge.

The great majority of the nearly 2000 members of the Bar in the State of Vermont are in private practice. Thus the fact that the Supreme Court is made up entirely of men and women who worked as government lawyers before going to the bench is an amazing departure from normal odds.

Without casting any personal aspersions on the five individuals in question, it seems clear that their route to the bench, and ultimately to the state's highest court, was through their membership in the state's political class. That class is overwhelmingly comprised of people who subscribe to the liberal idea that the government is the leading force for desirable change, and the locus of responsibility for restraining the self-interested acts of hundreds of thousands of Vermonters who would otherwise place their personal interests above that of the Greater Good.

Having served government most of their careers, government lawyers naturally have a predilection in favor of whatever their employer the government thinks the people should have to do or not do. Government lawyers have a natural career bias against the protests of those who resist the expansion of government spending, mandates, and regulation, and the curtailment of historic rights.

They are highly partial to the argument that the Constitution and laws need to be interpreted to allow government to pursue the liberal activist agenda. For instance, to use the landmark Brigham opinion as an example, a Court dominated by government lawyers will regularly affirm that "equal protection of the laws cannot be limited by eighteenth century standards".

What can Vermonters expect from a Supreme Court now completely oriented toward the presumed correctness of government action? The good news is that the Amestoy court ought to take a fairly tough line in cases where criminal defendants interfere with the public order the government is bound to protect (although even this trend may be limited by Legal Aid lawyer Dooley and Defender General Morse).

The bad news is that the Court is likely to march steadily further toward judicial reinterpretation of Vermont's Constitution, always with an eye to strengthening the hand of government.

In other words, we may confidently expect this Supreme Court to ignore and twist the Constitution to mandate equal outcomes for all, rule against disfavored businesses and landlords in consumer disputes, uphold every kind of supposed environmental regulation, deny every claim of government invasion of private property, and support every extension of government power.

There will be an occasional dissent, like Justice Johnson's in the case that held that your driveway is a public highway. But all in all, Vermont's new government- lawyer Court is not likely to be found standing in the way of progress - wherever progress is defined by the government and promoted by government action.

The Dooley Principle
March 1994

Joe Benning is a burly biker from the Northeast Kingdom who thinks he has a right to ride down the highways with the wind whistling through his hair. Joe is also a lawyer with a very strong devotion to the Vermont Constitution and its outspoken 18th Century affirmation of the liberties of the people "which ought not be violated on any pretence whatever."

So when the State of Vermont decreed that all cyclists must wear helmets when using the highways, Joe Benning decided to take that law to court. On January 31 the Vermont Supreme Court passed judgment on his case, and Joe lost.

The Court might have rested its case on one overpowering fact: the government owns the roads. As the owner of the property in question, the government may prescribe rules for the use of that property by the public. It may limit the speed at which the public may travel, require vehicle operators to have operating licenses, limit the weight of vehicles, and require motorcyclists to wear helmets.

Unfortunately, the Vermont Supreme Court did not rule against Joe Benning on these perfectly obvious grounds, perhaps because the Court does not want to accord greater importance to the concept of property rights. Instead, Justice John Dooley, a former Legal Aid lawyer, argued that the helmet law was necessary to hold down health care costs.

Taking note of the ongoing debate about health care reform, Dooley wrote these two key sentences: "Whether in taxes or insurance rates, our costs are linked to the actions of others and are driven up when others fail to take preventive steps that would minimize health care consumption. We see no constitutional barrier to legislation that requires preventive measures to minimize health care costs that are inevitably imposed on society."

So there you have it: your life belongs to the State.

Consider the implications of this new constitutional principle.

Smoking is hazardous to your health. Smokers run up health care bills, some of which are not covered by insurance. Therefore smoking can be prohibited - not only in enclosed public places, but in your own home or out in your own woodlot.

Alcohol is hazardous to your health. Drinkers run up health care bills, some of which are not covered by insurance. Therefore alcohol use can be prohibited. (This is unrealistic, of course, because the State pockets $9 million a year from its alcohol peddling monopoly.) Firearms are hazardous to your health. Gun users sometimes cause higher health care bills, some of which are not covered by insurance. Therefore firearms use can be prohibited. (This ought to be unrealistic, because the Constitution explicitly provides that "the people have a right to bear arms for the defence of themselves and the State," but one should not expect a Dooley court to take this clause at face value.) Obesity is hazardous to your health. Therefore ... well, you can see where this argument goes. The Dooley principle says in plain English that the State has the Constitutional power to make its citizens do anything the State decides will minimize health care spending, provided only that the Supreme Court can be made to buy the argument. Influential political leaders, including the Governor, the Speaker of the House, the junior U.S. Senator, and our Congressman, are supporting legislation that variously forces people to join health care collectives, forces businesses to pay employee insurance costs, forces young working people to pay insurance costs for old people, forces the sober to subsidize the drunks, and in the case of the Clinton-Jeffords plan, imposes criminal penalties on people who seek to purchase desperately needed medical treatment outside the government-controlled system. The proponents of all of these invasions of liberty and mandated spending schemes, so unavoidable whenever anything like health care is collectivized, must have been relieved by the enunciation of the Dooley Principle. They would not want a Supreme Court's commitment to constitutional principles such as liberty to get in the way of their plans for controlling our lives.