Pondering Written and Unwritten Constitutions With Utah Pegasus Scholar, Meg Glasmann

• Citation: Vol. 38 No. 3 Pg. 29
• Year: 2025
• Pages: 29

Pondering Written and Unwritten Constitutions with Utah Pegasus Scholar, Meg Glasmann Vol. 38 No. 3 Pg. 29 Utah Bar Journal May 2025

By Meg Glasmann

Odds are that if you are a practicing attorney in the state of Utah, you have encountered state or federal constitutional claims in a case. This could even be your routine practice. But all of us know that while there is abundant caselaw concerning constitutional law (and state constitutional caselaw is on the rise), we should ultimately return to the four corners of the Utah Constitution and the United States Constitution and their respective amendments when assessing constitutional claims.

But what would you do if these documents were not self-contained, but instead amorphous? What if we had an unwritten state or federal constitution? How would this impact our practice, ethics, and even the judicial canons of constitutional and statutory interpretation we employ? These are questions I pondered extensively during my Pegasus Scholar experience in fall 2024.

During my six-week Pegasus Scholar trip, I had the opportunity to observe several cases that came before the United Kingdom Supreme Court and interact closely with the Justices and their Judicial Assistants (the UK version of judicial law clerks) over the course of a week. While there, I reflected on how the British system of law has evolved compared to the American system. I had the opportunity to ask the Justices about what sort of judicial canons of interpretation they use when analyzing their own and other constitutions. To my utter surprise, I learned that neither textualism nor originalism has any place in the UK. Instead, the predominant canon employed is purposivism. See, e.g., Jonathan Green, The Misunderstood History of Interpretation in England, 56 Ariz. St. L.J., 911(May 2023).

Unwritten and written constitutions share many defining characteristics but remain distant cousins in their legal realities. Unwritten constitutions are in their essence living, rendering them malleable. This flexibility can be convenient in times of change but, by the same token, renders such constitutions vulnerable to impulse, political maneuvering, or abuse. See What is the UK Constitution?, Univ. Coll. London, https://www.ucl.ac.uk/constitution-unit/ explainers/what-uk-constitution (last visited Jan. 20, 2025). Unwritten constitutions are also harder to identify and comprehend. See id.; The UK Constitution, The Constitution Society.

The UK's Unwritten Constitution

It can be hard to wrap your head around the premise of an “unwritten” constitution. But, as scholars at University College London have put it, the UK doesn't have an unwritten constitution so much as it has an uncodified constitution. What is the UK Constitution?, Univ. Coll. London, https://www.ucl.ac.uk/...