McClaughry: Opting in and out of government spending

By John McClaughry

A large insurance company has been flooding the television channels with an advertising slogan “Only Pay for What You Need.” It’s an interesting exercise to apply that idea to various public spending issues.

Typically, at the state level, our elected legislature decides how the tax dollars they collect from Vermonters are to be spent — supporting schools, maintaining highways, implementing public health measures, subsidizing favored energy producers, paying for law enforcement, and so on. Once the spending bills are enacted into law, all taxpayers are obliged to pay the taxes to cover the spending, whether or not they approve of the spending. The majority rules.

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

This is also true at the town level, but here the citizen taxpayers themselves, not their elected representatives, decide how their property tax dollars will be spent. (The noncitizen and nonresident taxpayers, of course, don’t get to vote.)

Most towns have on their town meeting warnings separate requests for contributions. In my town, these include everything from museum admission to ambulance service to youth baseball to transit buses. Town meeting voters decide item by item: yes, if so how much, or no. At our last meeting, all ten requests were approved. That meant that all taxpayers were taxed to make the contributions, regardless of how any one of the participants voted. Majority rules.

Now look at your Vermont income tax form IN-111, line 23. This option allows the taxpayer to add an additional voluntary contribution to be paid into any or all of the Children’s Trust Fund, the Vermont Veteran’s Fund, Green Up Vermont, and the Nongame Wildlife Fund. You don’t pay anything to any of the four funds unless you choose to. The majority doesn’t rule.

Now look way back into Vermont history for yet another option. The Constitution of the Republic of Vermont, adopted in 1777, declared “no man ought, or of right can be, compelled to … support any place of worship, or maintain any minister, contrary to the dictates of his conscience.” That’s still there, unchanged, in the Constitution today (Ch. I, Art. 3).

Note that this provision did not preclude towns, by majority rule of the citizens at town meeting, from appropriating tax revenues to support churches, ministers, or by fair implication, church schools. In certain towns objections were raised when a majority voted to support a church or minister. The objectors argued that they could not be compelled to pay taxes to support a disfavored (by them) religious undertaking.

In 1801 the legislature passed a law affirming this right of objectors to not be compelled to pay. But five years later the Council of Censors recommended repeal of that law, not on any high-flown constitutional ground, but simply because it “engendered ill will.” And so it was done.

In 1999 the Vermont Supreme Court held that the Town of Chittenden school district’s decision to pay tuition to 13 pupils to Mt. St. Joseph Academy was unconstitutional for violating the “no compelled support” clause.

As I wrote at the time, the Court lost its ability to actually read the law. It’s not unconstitutional for the school district to tuition students to a religious school. What is unconstitutional is for the majority to compel an objecting taxpayer to pay the portion of his taxes voted by the majority for that purpose. The Constitution doesn’t prohibit a district from paying; it declares an objecting individual’s right not to be compelled to pay.

A bill to exempt objecting taxpayers from compelled support was introduced in the 2003 House by Rep. Bud Otterman, a former President of the Vermont Bar Association. The public education establishment was dead set both against school districts tuitioning students to sectarian schools, and recognizing any right of taxpayers to choose not to pay. The bill perished without action.

Last June the US Supreme Court held that denying school district tuition payments to sectarian schools unconstitutionally burdened the sectarian students’ First Amendment right to the free exercise of their religion. That clashes with the “no compelled support” clause of the Vermont Constitution as interpreted by the Vermont Supreme Court in the Chittenden case.

The act of 1801 protected a taxpayers’ right not to be compelled to support sectarian institutions. A modernized version would create a voluntary opt-out feature that allows school districts to comply with the U.S Supreme Court’s free exercise ruling, and also preserves the intent and spirit of our constitution’s protection of the right of taxpayers to choose not to pay for the support of sectarian schools.

It’s worth discussing how a tax law could be crafted to allow taxpayers to opt out of financing majority-approved state expenditures that they consider harmful, dangerous, unconstitutional or morally repugnant.

John McClaughry is vice president of the Ethan Allen Institute.

Images courtesy of Flickr/ and John McClaughry

4 thoughts on “McClaughry: Opting in and out of government spending

  1. Neither the State nor its individual taxpayers can have their cake and eat it too, John.

    Yes, it was the Act of 1801, protecting a taxpayers’ right not to be compelled to support sectarian institutions, that was found to be unconstitutional. And State law does not supersede the ‘enumerated powers’ of the U.S. Constitution’s 1st Amendment.

    Not only can the State not prohibit the free exercise of religion, neither can the State allow an individual taxpayer, operating within the confines of the State’s collection and allocation of tax process, do so independently. That would be aiding and abetting and unconstitutional action.

    The only constitutional remedy is for the State (or municipality) to not authorize any tax preferences at all that are used in a religious context, be they government-controlled collections, distributions, or defined exemptions.

  2. Interesting stuff here to chew over.
    And how revealing this.. for people that really understand what they are looking at.
    The whole reason we have public education was because somewhere along the line we decided that having an educated population was best for us, for a multitude of reasons.
    Then we decided what an adequate education is. Is that not going on in Religious Schools? -an adequate education as defined.. of course it is.
    So it appears that this argument is not really about educating students, but about controlling how they are educated and what they are exposed too.
    And isn’t that interesting.
    People on the Left worship Government, they want everyone to believe in and be dependent upon the state. They want to grow the government and they want everyone to feel this way.
    People of Faith feel very differently about all of that.
    So this is why they oppose paying for religious schools, they want all students programed the same way, to all be believers in *their chosen and approved religion of government worship*
    It seems to be me that that before any of that could be solved, the first thing that would need to happen is clearly defining what the battle is truly about.
    I’ll leave by reminding you what John Adams said about this:
    “This Constitution was written for a moral and religious people. It is wholly inadequate to the government of any other”.

    So with that being said by John Adams, then what is the issue with funding religious schools to educate our youth? John Adams tells us that this is what they envisioned the population to be like, moral and religious, and therefore wrote the Constitution accordingly.
    And if you don’t see it this way, then surely you have an issue with our country as founded and its Constitution.
    And why do we want to be controlled by people that have these issues?
    And worse, why do we want people that feel that way educating the youth of our nation?

  3. Wouldn’t it be great if the Council of Censors had not removed the only action arm for the citizenry by the wiser than us under the dome, in 1793, and replaced with a pabulum ‘you have rights’ one liner:

    [Article 8th.] – This article deleted and replaced

    [That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, by their legal Representatives, to enact laws for reducing their public officers to a private station, and for supplying the vacancies in a constitutional manner, by regular elections, at such periods as they may think proper.]

    As opposed to the 1786 Constitution, which says of the Council of Censors:


    In order that the freedom of this commonwealth may be preserved inviolate for ever, there shall be chosen, by ballot, by the freemen of this State, on the last Wednesday in March, in the year one thousand seven hundred and eighty-five, and on the last Wednesday of March, in every seven years thereafter, thirteen persons, who shall be chosen in the same manner the council is chosen—except that they shall not be out of the Council or General Assembly—to be called the Council of Censors; who shall meet together on the first Wednesday of June next ensuing their election; the majority of whom shall be a quorum in every case, except as to calling a convention, in which two thirds of the whole number elected shall agree, and whose [duty it shall] duties shall be to enquire, whether the constitution has been preserved inviolate in every part, during the last septenary (including the year of their service) whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. They are also to enquire whether the public taxes have been justly laid and collected in all parts of this Commonwealth:—in what manner the public monies have been disposed of, and whether the laws have been duly executed. For these purposes they shall have power to pass public censures—to order impeachments, and to recommend to the legislature the repealing such laws, as appear to them to have been enacted contrary to the principles of the constitution. These powers they shall continue to have, for and during the space of one year from the day of their election, and no longer. The said Council of Censors shall also have power to call a Convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of this constitution which may be defective—explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people: but the articles to be amended, and the amendments proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject.”

    When the Council of Censors was done away with, we lost our oversight.
    I see a new day coming when we reclaim that right, work in progress.
    We might want to reconsider putting them back in action, since its clear government is not listening to us, OR doing what is GOOD for life and the planet.

    • I can’t edit my comment so please note: The Council of Censors may or may not have abolished themselves. I don’t know the history of that. But, their recommendations are what changes the Constitution. In this case, the Council of Censors was removed, and replaced by the one liner in Article 8 now.
      Apologies for the confusion.
      Check out the three versions of our constitution, and how once the CoC was removed…things radically changed for the citizenry and our ability to affect change once policies have been proposed, from the outside.
      And removing anything that was considered out of compliance.

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