Utah Originalism Debated in the Utah Law Review: OnLaw

A recent alum of the S.J. Quinney College of Law, Jeremy Christiansen, published an article responding to Professor Troy Booher’s article published in the Utah Bar Journal on the Utah Supreme Court’s methods of interpreting the Utah State Constitution.

Professor Booher’s article can be found here: http://www.utahappellateblog.com/2012/05/05/utah-originalism/. Professor Booher argues that “the Utah Supreme Court has not settled on what information it will consider when interpreting the Utah Constitution.” In support, he reviews several cases:

Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993), where the Utah Supreme Court considered historical and textual evidence, sister state law, and policy arguments.

Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 12 n. 3, 140 P.3d 1235, where they removed policy arguments from that list, but stated that it would consider “text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.”

State v. Tiedmann, 2007 UT 49, ¶ 37, 162 P.3d 1106, where they declared that “historical arguments “do not represent a sine qua non in constitutional analysis” and that “historical and textual evidence, sister state law, and policy argument . . .”

Professor Booher suggests that there are two ways to understand the dispute arising from these cases: “(i) whether originalism is the method by which the Utah Constitution should be interpreted or (ii) whether originalism authorizes courts to consider policy arguments in interpreting the Utah Constitution.”

He suggests that “it is a mistake to conclude that Utah judges are not authorized to employ the common law method when interpreting the Utah Constitution merely because federal judges are not authorized to employ the common law method when interpreting the United States Constitution” for three reasons: (1) the Utah Constitution made judges politically accountable because they were elected (Utah Const. art. VIII, § 2 (1896)), (2) judicial review was widely accepted at the time of the framing, and (3) amending the Utah Constitution is easier than amending the United States Constitution. Therefore, Utah Originalism itself seems like it might support allowing judges to consider policy arguments.

Christiansen’s article is available here: http://epubs.utah.edu/index.php/utahonlaw/article/view/1276/943.

Christiansen argues that Tiedmann is “at best aberrational” and that originalism remains the dispositive method of constitutional interpretation in Utah. First, Tiedmann did not overturn American Bush; second,  reading Tiedmann in context with other case law shows a consistent pattern of seeking “to ascertain the drafters’ intent”; third, Tiedmann could be read as simply “about briefing requirements rather than interpretive methodology.”

Next, Christiansen takes up the question of whether Justices may consider policy arguments over original meaning. A unanimous Founding-era court repudiated this idea. Christiansen argues that it was the intent of the Framers that the people of Utah, through the Legislature, would create policy, rather than courts.

Thus, Christiansen concludes, “there is little case law to support the idea that originalism is not dispositive in constitutional questions” and “the founding generation saw the Utah Supreme Court as bound by the fixed meaning of the constitutional text.” Finally, he suggests that practitioners should “flock to the Utah courts with originalist arguments . . .” to help align litigators’ goals with the goal of the courts–“to ascertain the drafters’ intent.”

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