Academic journal article
By Aho, Jan J.
Albany Law Review , Vol. 60, No. 5
The mere mention of Vermont conjures up images of a rocky and rugged state inhabited by people no less rugged and independent. In light of these character traits, both of the state and its people, it should come as no surprise that the state's highest court has a relatively extensive history of state constitutional adjudication.(1) The court has long recognized its duty to the citizens of Vermont to interpret the state constitution independently from the federal constitution.(2) While most of this state's constitutional adjudication concerns "criminal rights,"(3) the court has also had occasion to address civil rights and liberties under the Vermont Constitution. It is upon this latter body of case law that this Comment will focus.
Initially, it would appear unnecessary to note that the United States is exactly that -- a group of sovereign states which have united and jointly consented to be governed, in limited areas, by a central government.(4) An understanding of this concept is fundamental to an understanding of state constitutional adjudication. The United States Constitution governs the relationship between the federal government and the people of each of the sovereign states.(5) Inherent in the idea that one set of "rules" can effectively and simultaneously regulate diverse and independent states is the acknowledgment that the "rules" should be applied so as to be acceptable, within certain fundamental limits, to all of the sovereign states.(6) As such, the rules are minimalist, in the sense that they authorize only the minimal level of federal intrusion into state affairs necessary to protect the basic rights and liberties essential to American notions of democratic government.(7) Thus, the federal constitution and its Bill of Rights provide only a lowest common denominator of protection to basic rights and liberties against encroachment by the federal government.(8)
While charting a minimalist course for the federal government and constitution, the Framers conversely envisioned the states, through their own state constitutions, as the primary protectors of individual rights and liberties.(9) Unfortunately, state constitutional law has, until fairly recently, been derided as either an exercise in judicial activism(10) or as the product of result-oriented judicial decision-making.(11) The reality of state constitutional adjudication is that state courts which vigorously pursue the development of a body of state constitutional case law, thereby furthering the Framer's federalist ideals, are far from the liberal reactionaries their critics might claim it to be.
Thus, an understanding of the methods and approaches utilized by various state courts, as well as the understanding of those courts about state constitutional adjudication is vitally important for advancing the role of state constitutions as the primary protectors of liberty. It is to this end that this Comment is directed.
To provide a preliminary framework for discussion, Part I of this Comment will briefly address the rationale, importance, and the methods of state constitutional adjudication employed by state courts. Part II will then analyze cases from the Vermont Supreme Court which construe Vermont's constitutional guarantees of equal protection, freedom of religion, and freedom of speech. This analysis will focus on the method and manner of constitutional adjudication employed by the court and specifically on the court's understanding of the relation between state constitutional adjudication and its federal counterpart. Based on these cases, Part III will then analyze the court's approach to constitutional adjudication under the Vermont Constitution.
I. The Judicial Framework for State Constitutional Adjudication in Vermont
A. Methods of Constitutional Adjudication: State Claims v. Federal Claims
Because litigants in state courts often claim that a state action violates both the federal and state constitutions, state courts are often presented with several alternative methods for addressing constitutional issues. …