Vermont is a Constitutional Problem

37 Pages Posted: 23 May 2019

Date Written: April 22, 2019


Whether measured by population or by the size of its economy, Vermont is small. It is the second least populous state, with fewer residents than 28 cities and 107 counties. It has the smallest economy of any state. And there is no reason to believe this will change. It has one of the oldest populations, the lowest fertility rate, and it draws few migrants, domestic or foreign. There are a number of individual Americans who could buy all of the residential property in Vermont by themselves. If Amazon located its full “HQ2” in Vermont, it would have employed about 8% of the state’s population and be responsible for about 17% of Vermont’s annual Gross State Product. Vermont is just very, very small.

This Essay argues that neither the structural aspects of the Constitution nor our subconstitutional institutional design choices are well-suited for an ever-growing country with states as small as Vermont. Very small states make Congress less democratic, more likely to engage in pork-barrel spending, and more susceptible to the influence of single firms or interest groups. Very small states make “cooperative federalism” less effective, as small state governments are not ideal partners for the federal government in administering federal programs. Small and shrinking states are less likely to fulfill their legislatively assigned role of making necessary investments in physical and human capital and are more likely to need federal bailouts due to budget shocks. In short, very small states make both the national government and our federalism less effective.

In order to understand how the Constitution and American democracy work more broadly — and how to make them work better — we need to reckon with the big problems created by small states. Constitutional law rarely considers the differences between the size of states outside of a few narrow contexts, but small states like Vermont are so unlike big states like California or Texas that thinking of them in similar terms makes little sense. This Essay suggests ways to reframe debates about federalism and the Constitution more broadly to focus on the actual traits of states and not merely their legal status.

Keywords: Federalism, Vermont, Bezos, Amazon, Senate, Medicaid, Cooperative Federalism, State Bankruptcy

Suggested Citation

Schleicher, David, Vermont is a Constitutional Problem (April 22, 2019). Arizona Law Review, Vol. 61, No. 253, 2019, Yale Law School, Public Law Research Paper No. 669, Available at SSRN:

David Schleicher (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States


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