Utah Originalism
| Publication year | 2012 |
| Pages | 22 |
| Citation | Vol. 25 No. 3 Pg. 22 |
Vol. 25, No. 3. 22. Utah Originalism
Volume 25 No. 3
May/Jun 2012
Introduction
The Utah Supreme Court has had a tenuous relationship with originalism. Originalism is a collection of views unified by their treatment of events at the time constitutional text was drafted and ratified as determinative of how that text later should be interpreted. Although originalism is often associated with political Conservatism, it is worth keeping in mind that originalism produces decisions in line with other political viewpoints. Consider, for example, State v. Hernandez, 2011 UT 70, 268 P.3d 822, a recent case in which the Utah Supreme Court, in light of the history and original understanding of Article I, Section 13 of the Utah Constitution, held that a preliminary hearing is required not just in cases involving felonies but also in cases involving Class A misdemeanors. See id. 2011 UT 70, ¶ 29. While originalists look to the views of the founding generation, originalism does not require that those views track any particular political ideology.
The Utah Supreme Court has not settled on what information it will consider when interpreting the Utah Constitution. For instance, in 1993, the court described the relevant considerations as "historical and textual evidence, sister state law, and policy argument in the form of economic and sociological materials." Soc'y of Separationists, Inc. v. Whitehead, 870 P.2d 916,921 n.6 (Utah 1993). But in 2006, the court expressly removed "policy argument" from that list of relevant considerations and stated instead that it will consider "text, historical evidence of the state of the law when it was drafted, and Utah's particular traditions at the time of drafting." Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 12 n.3, 140 P.3d 1235. Then in 2007, the court declared that historical arguments "do not represent a sine qua non in constitutional analysis." State v. Tiedeman, 2007 UT 49, ¶ 37,162 P.3d 1106. It again stated that relevant considerations include "historical and textual evidence, sister state law, and policy argument in the form of economic and sociological materials." Id.
The primary dispute emerging from those cases is not whether text and historical evidence are relevant to constitutional interpretation, but whether policy arguments also are relevant. See, e.g., State v. Walker, 2011 UT 53, ¶ 32 n.9, 267 P3d 210 (Lee, J., concurring);Am. Bush, 2006 UT 40, ¶ 73 n.2 (Durrant, J., concurring). Viewed through the lens of originalism, that dispute can be understood in at least two ways: (i) whether originalism is the method by which the Utah Constitution should be interpreted or (if) whether originalism authorizes courts to consider policy arguments in interpreting the Utah Constitution.
In addressing the relationship between originalism and policy, justices of the Utah Supreme Court in opinions and members of the Utah State Bar in various articles published in Ms Journal have assumed that originalism dictates the same analysis when applied to the Utah Constitution as when applied to the United States Constitution.(fn1) That assumption is unwarranted. Utah originalism is different because Utah history and the Utah Constitution are different. And those differences make it far from obvious that policy arguments are irrelevant when interpreting the Utah Constitution, even for originalists.
Originalism and the United States Constitution
Nearly all discussions of originalism concern how to interpret the United States Constitution. Justice Scalia has framed national debates concerning originalism in a particularly useful way, i.e., as debates over whether the method of...
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