Lasting Changes: Revisions to Vermont's Constitution — Dealing With Slavery and Abortion — Are on the Ballot This Fall | Election Voter Guide | Seven Days | Vermont's Independent Voice

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Lasting Changes: Revisions to Vermont's Constitution — Dealing With Slavery and Abortion — Are on the Ballot This Fall

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Published September 27, 2022 at 10:00 a.m.
Updated November 1, 2022 at 3:24 p.m.


ANDREW MULHEARN
  • Andrew Mulhearn

Vermont's constitution is the foundation upon which state government rests. It's difficult to change — by design. The process takes years, and both the legislature and the governor have to sign off before amendments appear on the ballot.

Vermont voters have approved just two amendments in the last 20 years, according to John Bloomer Jr., secretary of the Senate. This year, they'll consider two more: One clarifies the language related to slavery, and the other guarantees the right to have an abortion.

Here's an overview of the two proposals — what they mean, who's for and against them, and how they got on the ballot in the first place. The seemingly random numbers attached to them reflect the order in which they were introduced during the legislative session.

Proposal 2

What it does:
This amendment would revise and simplify the constitution's language about slavery and indentured servitude.

Why it's on the ballot:
Vermont was technically a republic when it became the first state to ban slavery in its 1777 constitution. But that ban was arguably a partial one.

After declaring in its first lines that "all persons are born equally free and independent," the founding document goes on to create an exception for the then-widespread practice of indentured servitude.

It currently decrees that "no person born in this country, or brought from over sea, ought to be holden by law, to serve any person as a servant, slave or apprentice" after reaching the age of 21 "unless bound by the person's own consent ... or bound by law for the payment of debts, damages, fines, costs, or the like."

This was an effort by the state's founders to allow indentured servitude — which some viewed as mutually beneficial — while restricting abuses by limiting the duration of such arrangements, according to Peter Teachout, a constitutional law professor at Vermont Law and Graduate School.

In 1865, when the Thirteenth Amendment outlawed slavery nationwide for anything other than conviction for a crime, the state and federal constitutions arguably were in conflict. The Vermont constitution seemed to still allow forms of slavery before the age of 21 or under certain financial situations.

Proposal 2 would clarify this by replacing the exemption with the simple declaration that "slavery and indentured servitude in any form are prohibited."

Who's for it:
The measure enjoyed wide, tripartisan support in the legislature both in the 2019 session and the 2022 session. The Vermont Racial Justice Alliance and Vermont Interfaith Action campaigned for it under the motto "Abolish Slavery Vermont." A committee formed to support the measure won't have to report its spending until a month before the election. Supporters call the revision an important move toward combating systemic racism.

When he approved putting the amendment on the ballot, Gov. Phil Scott, a Republican, spoke in favor of it: "Vermont is proud to have been the first state in the Union to outlaw slavery in its constitution, but this proposal to clarify the antiquated language is meaningful as well," he said in a press release. "We have come a long way since those words were originally written, but we know there is much more work to do."

While presenting the bill on the House floor, Rep. Hal Colston (D-Winooski) called the change "simple and clear, yet powerful and profound."

Some constitutional scholars like Teachout questioned whether the change was necessary, arguing the existing language has always been understood as an overall ban against slavery.

But Colston said it's important to remove any ambiguity on the issue.

"My truth, as a descendant of enslaved Africans, is that this current language gives the appearance that there may be an exception for the existence of slavery and indentured servitude," he said. "Language is powerful, and the truth shall set us free."

Who's against it:
Just three Republican representatives voted against the measure in the legislature. No political organizations have been established to raise or spend money against it.

How it will appear on the ballot:

Proposal 2

To see if the voters will amend the Vermont Constitution by amending Article 1 of Chapter 1 to read:

"Article 1. [All persons born free; their natural rights; slavery and indentured servitude prohibited] That all persons 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; therefore no person born in this country, or brought from over sea, ought to be holden by law, to serve any person as a servant, slave or apprentice, after arriving to the age of twenty-one years, unless bound by the person's own consent, after arriving to such age, or bound by law for the payment of debts, damages, fines, costs, or the like slavery and indentured servitude in any form are prohibited."

YES/NO

Proposal 5

What it does:
This amendment, also commonly known as Article 22, specifies that all individuals have a right to "personal reproductive autonomy" that cannot be "denied or infringed unless justified by a compelling State interest achieved by the least restrictive means."

Why it's on the ballot:
Advocates for "reproductive liberty" started the process to amend Vermont's constitution years ago, concerned that an increasingly conservative Supreme Court could overturn Roe v. Wade.

The court's June ruling in Dobbs v. Jackson Women's Health Organization leaves it to the states to decide whether to restrict access to abortion. There seems little risk of that in Vermont currently.

Still, abortion activists believe adding language to the constitution to protect reproductive rights is a vital bulwark against their potential erosion.

They contend that having reproductive rights protected in Vermont's constitution would give state officials a stronger foundation from which to fight a possible federal ban on abortion in the courts.

"The right to reproductive liberty is central to the exercise of personal autonomy and involves decisions people should be able to make free from compulsion of the State," reads the bill passed by lawmakers.

If the proposal passes, Vermont will become one of just a handful of states that have extended constitutional protection to abortion rights.

Who's for it:
The measure has strong support in Vermont's largely Democratic legislature, and from the state's Republican governor. Planned Parenthood of Northern New England formed a political action committee called Vermont for Reproductive Liberty to fight for it. The group has raised $568,000 to support the campaign for the amendment. In August, it transferred most of its funds — $372,000 — to a new, related committee, Vermont for Reproductive Liberty Ballot Committee.

It did so to distinguish the work of the committee, which supports a specific ballot measure, from the PAC, which is able to support political candidates, explained Lucy Leriche, president of the new committee.

"Voters have the opportunity to make a direct policy decision about what kind of rules we will or will not tolerate for abortion and regulating reproductive health care in Vermont," Leriche said.

Who's against it:
In 2021, a total of 41 Republican legislators voted against advancing the amendment to voters. And groups aligned with the Montpelier-based Vermont Right to Life Committee formed a PAC called Vermonters for Good Government to oppose it. The effort had raised $235,000 as of the end of August.

The committee argues that the new language is vague and broader than people realize and will do more than merely protect abortion rights. The group suggests the wording would extend undefined reproductive rights to men and children — rights that risk superseding parental rights, said Sharon Toborg, treasurer of the committee.

She said the amendment would also protect third-trimester abortions, which she said polls show most people do not support.

"Do Vermonters really think a viable, unborn child should not have legal protection and that the state has no role in providing that?" Toborg asked.

Leriche explained that extending reproductive rights to "individuals," instead of just protecting abortion access for women, reflects the fact that men and women have roles in reproduction. The amendment could, for example, protect a man's right to a vasectomy, she said.

Suggesting the amendment would protect late-term abortions or erode parents' rights are "scare tactics" used by the anti-abortion foes, Leriche said. Even though they are legal, no elective third-trimester abortions are performed in Vermont, Leriche said.

Toborg counters that it is impossible to know the impact of the amendment, since the meaning of the terms "individual" and "reproductive liberty" would be left up to the courts to decide.

Who's funding the campaigns for and against it:
Organizations for both sides have benefited from large donors, both inside and outside the state.

The bulk of the donations raised by Vermonters for Good Government have come from three sources: $100,000 from Burlington conservative super PAC funder Lenore Broughton, $50,000 from Republican donor and Stowe resident Carol Breuer, and $50,000 from the Roman Catholic Diocese of Burlington.

Large donors to the Vermont for Reproductive Liberty PAC included $283,000 from the national Planned Parenthood Action Fund, $112,000 from the ACLU and $27,800 from something called the Sixteen Thirty Fund, a Washington, D.C.-based dark money group that spends heavily to support progressive political causes.

How it will appear on the ballot:

Proposal 5

To see if the voters will amend the Vermont Constitution by adding Article 22 to read:

"Article 22. [Personal reproductive liberty] 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."

YES/NO

Making Amendments: Revising Vermont's Constitution

Changing the moral and legal framework of the state is serious business, and lawmakers have intentionally set the bar very high.

"Amending the constitution is a careful process reflecting that the document is so fundamental that you shouldn't change it too quickly," said Paul Gillies, a Montpelier attorney and expert in Vermont constitutional history.

The sober task was originally considered so consequential that the masses couldn't be trusted with it. Changes were originally left up to a Council of Censors. That body was abolished in 1870 in favor of a statewide vote.

"It was decided that if this was the people's document, the people ought to have a say about it," Gillies said.

Even so, lawmakers have kept a tight rein on the process, first limiting any amendments to once every 10 years, then shortening that period to four years in 1974.

Lawmakers also closely control what kinds of constitutional questions can be put before voters. The Senate must first approve any proposed constitutional change by a two-thirds majority. Then it must also win the assent of a majority of the House of Representatives. It must also receive the approval of a fresh batch of lawmakers the following biennium.

Such hurdles make successful amendments relatively rare. Vermont's constitution is the shortest in the nation and the least amended, Gillies said.

In the last 20 years, the document has been successfully tweaked only twice, according to John Bloomer, the Senate secretary.

In 2002, voters approved removing the requirement that judges retire by age 70. Freed from that constitutional stricture, the following year, the legislature upped the mandatory retirement age to 90, the highest in the nation. Then, in 2010, voters approved a change allowing 17-year-olds to vote in primaries as long as they would turn 18 by the date of the general election.

Such changes, while important, were largely fine-tuning the mechanics of how the state is run. This year, however, the proposals deal with the core guiding principles of the state.

"We're starting to fool with the firmament," Gillies said. "This is not tinkering — it's moving us into big, fundamental questions that ought to be settled by voters through a constitutional amendment."