Article, Use of Historical Evidence in the Utah Courts
| Publication year | 2020 |
| Pages | 38 |
November, 2020
Kenneth Lougee
Interpretation of the provisions of the Utah Constitution is a continuing problem in the courts. While the Utah Supreme Court has given some guidance, that guidance often leads to further historical interpretation problems for lawyers and the trial courts. The supreme court tells us to look to the intentions of the founding generation without explicit instructions as to how this is to be done:
When we interpret constitutional language, we start with the meaning of the text as understood when it was adopted. In interpreting the Utah Constitution, prior case law guides us to analyze its text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.
There is no magic formula for this analysis – different sources will be more or less persuasive depending on the constitutional question and the content of those sources. We reject the State’s suggestion in its brief that there is a formula of some kind for adequate framing and briefing of state constitutional issues. We use these sources to discern the original public meaning of the text. This court should look to the original meaning of the Utah Constitution when properly confronted with constitutional issues. The goal of this analysis is to discern the intent and purpose of both the drafters of our constitution and, more importantly, the citizens who voted it into effect.
When we examine the historical record to help us understand the original public meaning of the text, we must resist the temptation to place undue reliance on arguments based primarily upon the zeitgeist. Otherwise, we risk converting the historical record into a type of Rorschach test where we only see what we are already inclined to see. Merely asserting one, likely true, fact about Utah history and letting the historical analysis flow from that single fact is not a recipe for sound constitutional interpretation.
S. Salt Lake City v. Maese, 2019 UT 58, ¶¶ 18–20, 450 P.3d 1092 (emphasis added) (internal quotation, alteration, and citations omitted).
A recent case, Mitchell v. Roberts, 2020 UT 34, 469 P.3d 901, involved the understanding of the founding generation with respect to the Utah Constitution’s due process clause. Specifically, the court found that lapsed causes of action could not be revived by the legislature as revival would violate the due process clause. The purpose of this article is not to challenge the court’s findings; rather it is to suggest methods of discerning the intent of the founders in future cases.
The Mitchell court relied upon limited Utah evidence of the founder’s intent with respect to revived statutes and due process: a law review article and the statements of three members of the 1895 Constitutional Convention. Beyond this, the court relied upon its decisions made following the convention. But there is a rich amount of contemporaneous historical information that was not before the court and which lawyers and judges should consider in future cases that turn on questions of interpretation of the Utah Constitution.
It is hard for us in the 21st Century to understand the constitutional generation, especially when we assume that they were just like us. We should never forget, “The past is a foreign country; they do things...
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