Utah Originalism

Abstract

Originalism would seem to suggest a different role for state judges in interpreting state constitutions than it does for federal judges interpreting the U.S. Constitution, especially in light of recent arguments that originalism requires judges to employ original methods in discerning the original understanding of particular provisions. Using Utah as an example, this short paper discusses a few arguments employed by originalists when discussing the U.S. Constitution that appear to yield different results when applied to state constitutions.

Some originalists point out that federal judges are not politically accountable, that the U.S. Constitution is extremely difficult to amend, and that judicial review was quite narrow in 1789 to argue that federal judges had and have no authority (i) to elaborate the meaning of constitutional text beyond how that text was originally understood or (ii) to invalidate legislation that is arguably constitutional. Based upon such considerations, Justice Scalia has argued that judges may not employ the common law method when interpreting constitutional text, but instead have authority only to discern and apply its original understanding.

But the history of the Utah Constitution is quite different. In 1896 when Utah became a state, the justices of the Utah Supreme Court were directly elected, the Utah Constitution was relatively easy to amend in the event citizens disagreed with a judicial interpretation of the Utah Constitution, and, perhaps more important, the scope of judicial review was understood to be much greater than it was in 1789. While those considerations alone are not decisive, they suggest that a mechanical application of originalist arguments concerning the U.S. Constitution to discussions of how to interpret state constitutions is unwarranted.

The original methods and original understanding of the judicial role are different in different states. Originalism should take that into account.

Keywords: originalism, state constitutions