User:Michael Hardy/Vermont full faith and credit

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State of Vermont v. State of New Hampshire[edit]

I've created an article titled State of Vermont v. State of New Hampshire, about a U.S. Supreme Court case decided in 1933. It is stubby as it stands and so far I haven't yet created any links to it from other articles. It does not yet make clear why there was a lawsuit in the first place. Michael Hardy (talk) 21:18, 2 January 2017 (UTC)

The decision makes reference to some attempts in the first two decades of the 20th century of New Hampshire towns to tax land and structures on the west bank of the Connecticut river. This would be around the same time that hydroelectric plants were built along the river (that is, around the same time there was something worth taxing). Perhaps that is what lead to the lawsuit. If Vermont's contention that Vermont's territory extended to the thread of the river had prevailed, they could have taxed about 1/2 of the dams. — Preceding unsigned comment added by Jc3s5h (talk • contribs)

One oddity about this case is that SCOTUS cited an act of Vermont's legislature passed in 1782, when Vermont was an unrecognized entity effectively in rebellion against New York, when the governor of New York was contemplating military force to overthrow Vermont's government. The degree and nature of retroactive recognition of acts of the entity that called itself the State of Vermont during its 14 years of unrecognized de-facto rule seems like an interesting question and I wonder to what extent it's been answered. When Vermont was admitted to the Union on March 4, 1791, its governor who had been sworn in in October 1790 before Vermont petitioned for admission to the Union simply continued his term of office, as did other officers of the state, and the 1786 Constitution of Vermont continued in force unaltered. Does that in itself imply a sort of retroactive full-faith-and-credit? The act of Congress admitting Vermont to the Union said that the entity that had petitioned the Congress for admission was "the State of Vermont". Might that imply some sort of retroactive recognition? Even though Kentucky was not admitted to the Union until well over a year after Vermont's admission, the act admitting Kentucky was passed two weeks before the act admitting Vermont, and it began by explicitly noting that the legislature of Virginia had consented to Kentucky's becoming a separate state. Negotiations in 1790 had resulted in New York's legislature consenting to what they still claimed was a part of New York becoming a separate state, and called it “the community now actually exercising independent jurisdiction, as ‘the State of Vermont’.” But the act of Congress admitting Vermont did not mention that act of New York's legislature.

It seems as if Congress was deliberately avoiding explicitly saying anything about things that people disagreed about.
And notice the title page of this book, saying it was printed in 1784 in the "State of Vermont" seven years before Vermont was admitted to the Union. That doesn't imply recognition from anyone outside of Vermont, but recently I was taken to task for thinking anything called "the State of Vermont" could have existed before 1791. That seems to be another instance of the error of thinking about history by means of concepts that didn't yet exist during the time you're talking about.

So what degree of retroactivity does the full faith and credit granted to Vermont have? Michael Hardy (talk) 00:14, 18 January 2017 (UTC)

Michael Hardy, a partial answer regarding Vermont's status may be found in footnote 13 in this 2004 article from the American Journal of Legal History. See also the equal footing doctrine. Best, -- Notecardforfree (talk) 19:27, 18 January 2017 (UTC)

@Notecardforfree: I don't see how the equal-footing doctrine addresses any questions of retroactivity. Might it be that the fact that Vermont law still considers acts of the state of Vermont before March 4, 1791 to be valid logically entails retroactivity? But is there anything explicit on the question of retroactivity? The footnote says "A compromise required the consent of a state for any future separation of a new state 'hereafter formed.' This exempted Vermont, which was already considered to be 'formed.' " But the words "hereafter formed" do not appear in the Constitution. Michael Hardy (talk) 22:32, 18 January 2017 (UTC)

Michael Hardy, the questions presented in your previous comments involve rather complex issues of constitutional law. I apologize for the brevity of my previous response and for any confusion it may have caused. Here are a few points that I hope will clarify things:

States are sovereign (or quasi-sovereign) political entities. (See Missouri v. Holland 252 U.S. 416, 431 (1920)). Although its territory may have been claimed by other states, the Supreme Court recognized that the political entity known as "Vermont" existed before 1791, when it was formally admitted as a member of the union. (Vermont v. New Hampshire 289 U.S. 593, 596 (1933) ("Vermont was admitted to the Union as a sovereign independent state")). In other words, the Vermont that existed in 1782 was the same Vermont that existed in 1791, and it is the same Vermont that exists now. That's why the Supreme Court, in Vermont v. New Hampshire, looked at how Vermont defined its own boundaries in its 1782 legislation. I should note that Vermont's situation is not unique: other states existed as independent nations and others established "de facto" or "extra-legal" local governments before joining the union. (See this law review article at p. 319 for more examples).
I'm certainly not an expert in Vermont's history, but I presume that they kept the laws of the old Republic when they joined the Union in 1791. As a general principle, when new states join the Union, they can utilize whatever laws they like, as long as there are no conflicts with federal law. (See Coyle v. Smith, 221 U.S. 559, 567 (1911) (holding that new states are "competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself."); note also that Congress has often imposed conditions on admission to the Union). To that extent, Vermont could give legal effect to laws that were passed by its legislature before 1791. (See State v. Elliot (1991), a Vermont Supreme Court decision that discussed the "continuum" between the pre-1791 and post-1791 Vermont).
As for your question about full faith and credit: To the extent that Vermont kept any pre-1791 laws, upon admission to the Union, other states would then have to give those laws full faith and credit. As for any pre-1791 laws that were repealed before statehood, I think the question of full faith and credit would be moot. However, see this famous law review article about problems with giving full faith and credit to statutes and this more recent law review article, which explores a trend where the "Supreme Court has become far more willing to permit courts to ignore sister-state statutes" (at pp. 51-61). See also this article about the history and development of the full faith and credit clause.
I cited the equal footing doctrine because it presumes that states have equal status in the Union -- in other words, the federal government cannot limit the sovereignty of new states. (See Coyle, 221 U.S. at 566). Under this principle, Vermont had the same rights to manage its affairs (legislatively) as the other states.

I hope this is helpful. I would love to dive into these questions in further depth, but unfortunately it's a busy week for me. All the best, -- Notecardforfree (talk) 06:36, 20 January 2017 (UTC)

@Notecardforfree: Thank you. The "continuum" question is to me the most interesting part. Vermont's 1777 Constitution was superseded by its 1786 Constitution, which continued in effect when Vermont was admitted to the Union. And Thomas Chittenden was sworn in to a one-year term as governor of the state of Vermont in October 1790, succeeding Moses Robinson, and that term simply continued when the state was admitted: no new government or new constitution or new laws came into effect at that time. (I think Wikipedia's list of governors of Vermont confuses matters here, by thinking about this in terms of concepts that developed later. It gives the impression that Chittenden's term from October 1790 to the date of admission was distinct from his term from the date of admission to October 1791.) It's also interesting that a federal court was examining the validity of the Wentworth grants as recently as 1991. What amount of "faith and credit" those should get has been contentious at least since 1764. (Benning Wentworth is the man who named the town of Bennington after himself.) Michael Hardy (talk) 19:08, 20 January 2017 (UTC)