The Amendment Process

A History

In May 1776 the Continental Congress advised its member states to reorganize their governments on the basis of “the authority of the people,” rather than on the existing colonial charters. Not only did most of the original thirteen states respond by adopting new constitutions, so did Vermont, which created itself by adopting a constitution on July 8, 1777.

These early state constitutions gave form to new principles of government. One was that constitutions articulate the fundamental, or organic, laws of a state. Constitutional law was distinguished from, and gave guidance to, statutory laws governing the social, economic, and political realities of the moment.

While fundamental principles were stable, even permanent, constitutions could be altered to meet changing realities. The question was who should have the authority to amend constitutions and how should they do it?

While in 1776 the idea of a direct vote of the people on constitutions was not fully developed, there was an effort to put constitutions beyond the reach of legislatures. The Delaware Constitution declared that its Declaration of Rights (Bill of Rights) was unalterable and set high legislative thresholds for amending other sections (amendments had to be approved by five/sevenths of the general assembly). The Maryland Constitution could only be amended if proposals were adopted by two successive separately elected legislatures. In Virginia, Thomas Jefferson supported ratification of amendments by special county conventions, rather than by the general assembly.

In Pennsylvania the separation of the constitution from the legislative body was accomplished through a Council of Censors, elected every seven years to consider, among other duties, possible amendments. Proposed amendments would then be placed before a constitutional convention for ratification. The 1776 Pennsylvania Constitution was the first to institutionalize an amending process. The 1777 Vermont Constitution adopted, with modifications, the Council of Censors system. Pennsylvania abandoned the Council of Censors before it was fully implemented and in 1786 Vermont became the first state to amend its constitutional through a constitutionally described process.

The Council of Censors, 1777-1870

Vermont, unlike the original thirteen states, did not have its own colonial government to adapt to independence. Therefore its constitution was not created by an existing legislative body, but by a specially convened convention. Vermont kept its constitution distinct from the legislature by giving the sole power to propose amendments to a Council of Censors (Chapter II, Sec. 44 of the 1777 Constitution).

The Council of Censors was a body of thirteen men, elected on a statewide basis to one-year terms, every seven years. Sitting members of the executive and legislative branches were ineligible for election as Censors. The Council’s powers included determining whether government had conformed to constitutional limits in the preceding seven years and proposing, if there was an “absolute necessity,” constitutional amendments to a constitutional convention.

While the Council was elected on a statewide basis, constitutional conventions were, with one exception, elected on the basis of town representation; that is, each town elected one delegate. The different constituent bases for the Council and the conventions were a source of tension throughout the Council’s history. Councils regularly proposed schemes for apportioning the general assembly on the basis of population, rather than town, representation. The town delegates to the constitutional conventions with equal regularity defeated these proposals except in 1836 when the Council’s proposal to create a state senate, with partial recognition of population-based apportionment, was approved.

This tension contributed to the abandonment of the Council system. The 1855-56 Council, taking advantage of the constitutional silence on how to apportion a convention, not only proposed replacing town representation with a 150 member house apportioned on population, but also called for a population-based convention. That convention rejected the reapportionment proposal and the public out cry was such that the 1862 Council made no proposals of amendment. In 1869 the Republican Party, whose strength lay in its town level organization, sought to abolish the Council in order to remove the threat to its political base.

That effort initially failed when a majority of Censors on the sub-committee on changing the amendment process refused to support abolishing the Council. Finally, in order to break a logjam on all proposals, the Council submitted a proposal to the 1870 constitutional convention calling for a new amending process. Under the proposal the Council of Censors would be abolished and the state senate would be given the sole authority to propose amendments, and then only every ten years. A proposal would have to receive a two/thirds vote of the senate and a majority vote of the house. Following legislative elections, any surviving proposal would need majority approval by the senate and house and then be put before the voters for ratification.

The subcommittee reports for and against the Council system revisited the fundamental arguments on the relationship of the constitution to the legislature and to the people at large. Those Censors who wanted to replace the Council dismissed it as a “relic” of Federalist distrust of the people. The Council removed the amending process from the people’s elected representatives (the general assembly) and, through the constitutional convention, deprived Vermonters the opportunity to vote directly on amendments. “The people of Vermont are at the present time, vastly more intelligent, better informed, better educated than formerly, and no good reason exists in the opinion of the minority [of the subcommittee] for not trusting them directly in the final amendments to their Constitution…We propose to let them judge for themselves once in ten years, whether their fundamental law needs revising, and the privilege to do it by their own legislature, and by their own vote at the ballot-box.”

Supporters of the Council system argued that the “Constitution was framed for the whole people. It is the organic law which governs not municipalities, but the people of municipalities…”. Putting the power to propose amendment into the hands of the legislature, which was based on municipal representation, would allow a “small town with one hundred voters” to “neutralize the voice of a town with ten thousand inhabitants...”. The Council, elected statewide, was a better expression of the popular will.  Council supporters agreed that the town-based constitutional conventions should be replaced by popular ratification of proposals.

Supporters also articulated their greater concern over narrowing the distance between constitutional and statutory law by giving the legislature the power to propose amendments. “The very soul of an organic law—of a constitution for a commonwealth, is permanency. The people demand some permanent law so that legislatures of partisan bias shall not trample upon the rights of minorities…. We are of the opinion if the Legislature once in ten years have power to reach the Constitution that a large portion of their time will be occupied in “tinkering” it. No member will think he can subserve the interests of his constituents unless he strikes some blow at the Constitution which his fancy may dictate…”

The town delegates to the 1870 constitutional convention voted, by 123 to 85, to abolish the Council and give the general assembly the power to propose amendments every ten years, beginning in 1880.

For more on the Council of Censors see Paul S. Gillies and D. Gregory Sanford, Records of the Council of Censors.

The Ten-Year Time Lock

In 1870 the Vermont Constitution was amended to allow the general assembly to propose amendments every ten years. Proposals originated in the senate and, if they received a two/thirds vote, they would be presented to the house where majority approval was required. In the next legislative session, following new elections, the surviving proposals had to be approved by senate and house majorities and then put before the voters for ratification. This system lasted from 1880 until 1970.

There were various attempts to shorten the ten-year time lock over the years, beginning in 1880. In 1965 the ten-year time lock came under renewed scrutiny when the federal courts ordered Vermont to reapportion the house on the basis of one person/one vote. The general assembly complied with the court order, ending town representation. Vermont’s Constitution, however, still mandated town representation and could not be changed until the time lock opened in 1970. Consequently the new 150 member Vermont House was in technical violation of the Vermont Constitution until an amendment reflecting the new apportionment scheme was approved by the voters on March 5, 1974 (50,420 to 26,439).

On the same day voters made it easier to amend the Constitution by reducing the ten-year time lock to four years by a 45,884 to 33,238 vote.