The Vermont Constitution: Early Grievances, Notable Early Protections, Still Evolving

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

Vermont’s first two constitutions were adopted when it was an independent republic, before it was admitted to the Union. Its third — and current — constitution was adopted in 1793, two years after statehood.

History

As hostilities escalated between England and the American colonies, the Second Continental Congress in 1775 and 1776 issued formal, but secret, recommendations that the colonies develop independent frameworks of government. In January 1777, the inhabitants of what was then known as the New Hampshire Grants declared themselves to be a separate state named New Connecticut, announcing independence from both New York and the British empire. Five months later, because a New Connecticut already existed in Pennsylvania, the state’s name was changed to Vermont, and it petitioned the Continental Congress for recognition and admission to the Union. The petition was initially voted down due to opposition from New York, which had sought to seize and control this land for itself.

Unlike the 13 colonies, Vermont did not have a colonial government, so there was no governmental entity to write a constitution. Instead, in 1777, a specially convened convention drafted its first constitution. In light of ongoing British military operations, it did so rather in haste and without its work being formally ratified by the people (though there is some debate about whether — and, if so, how — ratification occurred). In fact, not even a month elapsed between the “Declaration of Rights” and “Frame of Government” being proposed and the adoption of the 1777 constitution.

The convention was not starting from scratch, however. It largely copied the constitution Pennsylvania had instituted the year before, adopting a radically democratic government with a unicameral legislature with one-year terms, a relatively limited executive, and without life tenure for judges. But Vermont’s first constitution did depart in significant ways from Pennsylvania’s — it added 14 paragraphs of grievances against New York and its attempts to seize its land as its own. More substantive, and less performative, changes included abolishing slavery (more on this to come) and eliminating the property qualification for the right to vote. This 1777 constitution is considered one of the most democratic and radical of the early constitutions.

But Vermont didn’t stop there. As law professor Peter Teachout has written, the period between the first and third constitutions represented a “process of correction and counter-correction extending over a period of 16 years. The years between 1777 and 1793 in Vermont were ones in which the people of the state, through a process of trial and error, gradually settled on a constitution they could live with.”

The next constitution, in 1786, incorporated separation-of-powers principles; included legislative-debate immunity; extended the free-exercise to provide that no man — not just no “man who professes the protestant religion” — can “be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship;” and directed the legislature to ensure any tax it proposed would be of more service to the community than would be leaving it uncollected, among other changes.

And the 1793 constitution required a legislative appropriation before any money could be withdrawn from the treasury, established residency requirements for elected officials, and prohibited legislators from receiving any fee or reward for legislative acts. This version is notable, too, for having deleted the 14 paragraphs directing vitriol at New York.

Governance

Like the federal and most state constitutions, the Vermont Constitution mandates three branches of government — legislative, executive, and judicial, in that order. Legislative and executive elected officials all serve two-year terms, with no term limits. The constitution was amended in 1836 to adopt a bicameral legislature, and the Senate and the House have 30 and 150 members, respectively. The governor and lieutenant governor are elected separately, not as a single ticket, the result being they do not always hail from the same party or work particularly well together.

As originally envisioned, the judiciary did not have the power of judicial review of legislative enactments or administrative actions. Instead, the constitution created a Council of Censors consisting of 13 elected representatives. The council was tasked with meeting, first in 1785 and then every seven years thereafter, to review the prior seven years and determine whether the legislative and executive branches had “performed their duty as guardians of the people” or, instead, had “assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution.” If the latter, it had the power to impose impeachments or recommend repeal of laws. It also was empowered to recommend amendments to the constitution and call constitutional conventions when it deemed amendments necessary. The 1785 and 1792 councils each called for constitutional conventions, the results being the 1786 and 1793 constitutions, incorporating some, but not all, of the Council’s recommendations.

It wasn’t until 1814 that the judiciary first stated that a statute conflicting with the state or federal constitution would be void, finding a law with retrospective application requiring that a particular deposition be taken into evidence was a “most clearly unconstitutional and void . . . attempt of the legislature to make a judicial decision in a particular case.” But it was more than three decades later, in 1848, when the Council of Censors opined that constitutional questions were better left to the judiciary than to the council’s power of recommendation alone. On the council’s suggestion, the constitution was amended in 1870 to do away with the council altogether.

Vermont’s supreme court judges are appointed by the governor, who must choose from a list of qualified nominees forwarded by a judicial nominating body created by the legislature. Appointments are for an initial period of six years, after which (and every six years thereafter) they are subjected to retention votes by the legislature, and judges must retire at age 90. (The constitution previously mandated retirement at 70, but a 2002 amendment gave the Legislature the power to dictate the retirement age.) Vermont has no intermediate appellate courts — appeals from the final decisions of the trial courts are directly to the five-judge state supreme court and are of right.

The Bill of Rights and Unique Characteristics

Vermont’s original declaration of rights, like its Pennsylvania model — itself based on Virginia’s — sets forth affirmative rights of the people, not simply restraints on governmental power. These include: “That the people have a right to hold themselves, their houses, papers and possessions, free from search and seizure” and “that every member of society hath a right to be protected in the enjoyment of life, liberty and property.” Pennsylvania and Vermont were unique in expressly providing for the freedom of speech. “The people have a right to freedom of speech, and of writing and publishing their sentiments,” the Vermont Constitution says. These affirmative rights endured through the 1786 and 1793 constitutions.

Vermont’s constitution does not provide for direct democracy at the statewide level. There is no mechanism for citizens to place amendments on the ballot or for voters to weigh in on statutory or constitutional referenda or veto legislation by referendum — a setup seemingly at odds with Vermont’s proud history of Town Meeting, historically an in-person, all-day gathering where candidacies, budgets, and ballot items are voted on, called direct democracy “in its purest form” as it relates to local government and marked by an annual state holiday. As noted below, voters do weigh in on proposed constitutional amendments, but only after they have been proposed by the Senate and approved by both houses.

The Vermont Constitution strictly limits the ordinances municipalities can enact and requires legislative approval for such proposed charter changes as allowing non-citizen voting in local elections and stricter gun-control measures. The constitution does not grant municipalities home rule; instead, the state practices a strict form of Dillon’s Rule — the principle that municipalities may only exercise the powers expressly granted them in statute, along with those powers that are necessarily implied from same. The constitution vests “Supreme Legislative power” in the state legislature and provides that the legislature has the power to “grant charters of incorporation, subject to the provisions of section 69, constitute towns, borroughs, cities and counties,” while section 69, in turn, provides that municipal corporations must “remain under the patronage or control of the State.”

Amendments

Amending Vermont’s constitution is no small feat. First, the Senate must propose an amendment, and it can do so only every four years and approve it by a two-thirds majority. (Before a 1975 amendment, that time-lock period was 10 years.) It must also be approved, in identical form and in the same session, by a majority vote of the House. It must next be approved by a majority vote of both houses in the succeeding biennium — that is, after there has been an intervening election. Finally, it is put to the voters for ratification, requiring a majority vote.

Perhaps because of this laborious process, Vermont’s constitution remains among the shortest in the United States — with fewer than 5 percent of the number of words as Alabama’s — as well as one of the least-amended of the early constitutions still in effect.

This is not to say Vermont’s constitution has not been amended in important ways. As noted, its 1777 constitution abolished slavery, a move unprecedented among the early constitutions. This achievement, however, must come with an asterisk: Article 1 provided that “no male person” shall be required to serve another “as a servant, slave or apprentice, after he arrives to the age of twenty-one years; nor female, in like manner, after she arrives to the age of eighteen years, unless they are bound by their own consent, after they arrive to such age, or bound by law for the payment of debts, damages, fines, costs or the like.” Slavery was therefore constitutionally still permitted for minors, by consent, or as payment of debt or fines. The historical record also suggests that adult slavery nevertheless continued for some time after 1777. It wasn’t until 2022 that any form of slavery was excised from the constitution, when Vermonters overwhelmingly voted to amend Article 1 to read that “slavery and indentured servitude in any form are prohibited.”

That same year, Vermonters — again overwhelmingly — voted to amend the constitution to explicitly protect reproductive liberty, adopting as Article 22 that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”

Judicial Interpretation

While looking to state constitutions as a source of greater protections than their federal counterpart provides is certainly au courant, in the 1970s and 80s, courts across the country were responding to the “post-Warren counter-revolution” by placing increasing emphasis on their own founding documents. The Vermont Supreme Court was among them. In 1985’s Jewett v. State, the court lamented the then-common practice of appellants relying chiefly on federal rights and then, offhandedly at best, throwing in a mention to the state constitution’s analogous provision. The opinion exhorted the Vermont bar to look first to the state constitution for redress. “This generation of Vermont lawyers has an unparalleled opportunity to aid in the formulation of a state constitutional jurisprudence that will protect the rights and liberties of our people, however the philosophy of the United States Supreme Court may ebb and flow.” The court concluded by setting forth a taxonomy of approaches litigants might choose among in pursuing these state constitutional arguments, noting that “what is appealing to one justice may be unpersuasive to another,” and, therefore “wise counsel will use every tool available in his or her efforts to convince.”

Since Jewett, the Vermont Supreme Court has many times parted ways with federal jurisprudence, finding that the state constitution demands more. In no realm is this more true than as it relates to Article 11, Vermont’s Fourth Amendment analogue that protects citizens from unlawful search and seizure. The court has rejected U.S. Supreme Court precedent that, for example, permitted police to routinely order a driver to exit a lawfully stopped car absent reasonable suspicion of another offense or a risk to officer safety; allowed an exception to the exclusionary rule that permits introduction of evidence obtained in good-faith reliance on a warrant later deemed defective; established a bright-line rule permitting a warrantless search of a vehicle following its operator’s arrest; and created the per se rule that a person can never have a protected privacy interest in “open fields.” Moreover, the Vermont high court has held that evidence seized by federal officers on roving patrol in a manner that would violate Article 11 if done by a state officer — but in compliance with federal law — cannot be introduced in a Vermont prosecution. And it has held that Article 11 provides a direct private right of action for money damages and that the state may not claim sovereign immunity as a bar to such claims.

Jewett’s advice and subsequent developments notwithstanding, much of Vermont’s constitution remains underdeveloped and undertheorized. For example, the court has often noted that the constitution’s speech protections may eclipse the First Amendment’s, but has not affirmatively so held, at times because the issue was inadequately briefed.

Under Vermont’s Common Benefits clause, the closest analogue to the federal equal protection clause, the Vermont Supreme Court has struck down both the exclusion of same-sex couples from the rights and privileges of civil marriage and Vermont’s system of funding public education that produced dramatic disparities among districts.

But, these landmark decisions notwithstanding, there has not developed a robust jurisprudence of the Common Benefits clause or theory of its full sweep. As the federal courts continue to become more hostile to civil rights and protections, it may well be time for a fresh examination of the work these and other clauses of the Vermont Constitution can do.

Lia Ernst is the legal director of the ACLU of Vermont.

Suggested Citation: Lia Ernst, The Vermont Constitution: Early Grievances, Notable Early Protections, Still Evolving, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sep. 24, 2025), https://statecourtreport.org/our-work/analysis-opinion/vermont-constitution-early-grievances-notable-early-protections-still