A principle of the American systems of government is the separation of powers among executive, legislative and judicial branches. The first state constitution to explicitly articulate that principle was Virginia's, adopted in June, 1776.
Vermont did not provide such recognition until its second Constitution, adopted in 1786. Its separation clause drew heavily upon Virginia's language.
The founders of state and the national governments sought to balance, as well as separate, the branches of government. Seeking that balance is an on-going process as each branch exercises its powers and responds to the actions of the other branches. It is truly a continuing issue.
The 1777 Vermont Constitution accorded the judiciary relatively weak authorities in comparison to the legislative and executive branches. Initially the Vermont Supreme Court did not exercise the power of judicial review, that is judging whether a law or government action passed constitutional muster.
Instead another constitutional body, the Council of Censors was granted judicial review authority. A body of thirteen men, elected to one-year terms every seven years, the Council was to inquire: "whether the legislative and executive branches of government have performed their duties as guardian of the people; or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution" (Chap. II, Sec. XLIV of the 1777 Constitution).
The Council was not always comfortable with this power and urged the court to exercise judicial review. It was not until 1814, however, that the court began to do so.
Since 1814 the court has found, in at least 52 cases (as of April 2009), that a law did not meet a constitutional standard. Declaration that a law is unconstitutional can have far reaching consequences and has, on occasion, led to questions about how that authority has evolved. That is certainly true of recent cases involving school funding and the common benefits clause. The following section provides insights into the history of judicial review.
As has so often been the case, the Archives is indebted to Paul Gillies for his willingness to share his research on the functions of government. Paul is a partner in the Montpelier law firm of Tarrant, Marks and Gillies and was Deputy Secretary of State from 1981-1993. We include a copy of his June 28, 2001 paper to the Vermont Judicial History Society on judicial review, as well as the cases themselves.