Some Thoughts on Utah Originalism: A Response
13 Pages Posted: 31 Aug 2013 Last revised: 30 Aug 2014
Date Written: June 18, 2013
Scholars have spilt a lot of ink debating the merits of the interpretative philosophy known as “originalism.” Although debates over the propriety of originalism generally revolve around its application to the U.S. Constitution, it is no surprise to see that the debate has begun to occupy the sphere of state constitutional law in the decades following Justice William Brennan’s famous calls for state courts to enforce individual rights via state constitutions. Utah is no stranger to this debate. Recent commentary has raised two thoughtful and important questions regarding originalism as applied to the Utah Constitution. First, is originalism the dispositive method of Utah constitutional interpretation? And second, would proper application of originalism in Utah allow for public policy considerations in determining the meaning of constitutional provisions?
This Article is a modest attempt to challenge answers already given to the first question, and to add to the scholarship regarding the second. Part I will set out the arguments that have been put forward to answer the first question — that strong originalist pronouncements by the Utah Supreme Court may be disregarded or are at least not dispositive in constitutional questions. The Article will then respond by demonstrating that the linchpin of that view — language contained in a case called State v. Tiedemann — is at best aberrational when compared to caselaw that came before and after Tiedemann, as well as subsequent cases relying on Tiedemann.
Part II will then briefly address arguments that commentators have used to suggest that policy considerations are potentially a legitimate factor in Utah originalism. The three main points forward to support this idea are: (1) that Utah Supreme Court Justices were popularly elected at the founding; (2) that judicial review was widely used at the founding; and (3) that the Constitution is easier to amend than its federal counterpart. Part II will conclude that founding-era caselaw suggests the opposite — that Utah’s framers saw themselves as bound by the general understanding of the written text at the time the text was ratified. Part III will briefly conclude as well as suggest the importance of originalism in Utah constitutional jurisprudence.
Keywords: originalism, original meaning, original intent, constitutional interpretation, state constitution, constitutional law
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