by Troy L. Booher
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 P.3d 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 (ii) 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 this Journal have assumed that originalism dictates the same analysis when applied to the Utah Constitution as when applied to the United States Constitution.1 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 common law judging – by which judges “make” and improve the law in light of policy arguments – should be the method for interpreting constitutions and statutes.2 Justice Scalia argues that it is undemocratic and illegitimate for judges to employ the common law method when interpreting legal texts such as constitutions.
The relationship between democracy and constitutionalism is too complex to summarize here. It is possible, however, to mention some of the most common arguments advanced in support of originalism that involve appeals to democratic principles.
1. Judges are not authorized to employ the common law method when interpreting constitutional text because judges are not politically accountable. Under Article III, Section 1 of the United States Constitution, federal judges have life tenure and their compensation may not be diminished. As the famous anti-federalist Brutus complained, Article III made judges “independent of the people, of the legislature, and of every power under heaven.” Brutus Essay XV (Mar. 20, 1788). Because judges are not politically accountable, their decisions have democratic legitimacy only to the extent judges are merely interpreting laws enacted through appropriate democratic processes, such as ratified constitutional provisions. For that reason, judges should avoid policymaking and instead act, as Justice Roberts put it during his confirmation hearing, as umpires calling balls and strikes.3 Originalism ensures that judges frustrate the views of current majorities only by exercising authority derived from those past supermajorities who ratified the constitutional provision under which the state action is unconstitutional.
2. Judges are not authorized to employ the common law method when interpreting constitutional text because, at the founding, it was understood that judges would enforce statutes as long as those statutes were arguably constitutional. To the extent broad constitutional language was vague or ambiguous (e.g., “freedom of speech” or “due process”), the political branches were authorized to elaborate their meaning. In 1789, not only was judicial review controversial, but, to the extent it was accepted, it was confined to declaring statutes unconstitutional only when those statutes clearly violated the Constitution. As Professor James Thayer put it a century later in 1893, judicial review “was denied by several members of the Federal convention, and was referred to as unsettled by various judges in the last two decades of the last century.”4 And when judicial review became widely accepted, the judiciary could declare statutes unconstitutional only when “the violation of the constitution is so manifest as to leave no room for reasonable doubt.” Commonwealth ex rel. O’Hara v. Smith, 4 Binn. 117, 123 (Pa. 1811). Originalism, therefore, requires judges to defer to political branch interpretations of constitutional text as long as those interpretations fall within a range of reasonable meanings of that text. The political branches, not the judiciary, are authorized to elaborate the meaning of vague or ambiguous constitutional text. As Brutus would have put it, because the political branches are politically accountable, those branches elaborate meaning “at their peril.” Brutus Essay XV.
3. Judges are not authorized to employ the common law method when interpreting constitutional text because, unlike unpopular common law and unpopular interpretations of statutes, both of which can be altered by statute, unpopular interpretations of the constitution are extremely difficult to alter through constitutional amendment. Arguably, legislative bodies tacitly approve of common law by failing to enact legislation to alter it and tacitly approve of judicial interpretations of statutes by failing to amend those statutes. Depending upon the nature of the legislative process, such claims of tacit consent have some purchase. But given how difficult it is to amend the United States Constitution, it is pure fiction to consider citizens as tacitly consenting to a judicial interpretation of the Constitution by failing to amend the Constitution. Because judicial interpretations of the Constitution are nearly impossible to correct through amendment, judges must interpret the Constitution in accordance with its original meaning instead of employing a common law method. Otherwise, the common law method provides a license to unelected judges to change the meaning of constitutional provisions in a way no majority, let alone a supermajority, has authorized.
The combination of those familiar arguments makes a fairly powerful point concerning the relationship between democracy and judicial interpretations of the United States Constitution. Were federal judges authorized to employ common law methods when interpreting constitutional text, five citizens (justices) with no political accountability would have authority to change the Constitution to mean something that no other citizens had authorized and that a majority of citizen realistically could not alter through constitutional amendment.
There are several responses to those arguments, none of which can be explored in any depth here. Alexander Hamilton in Federalist 78 suggested that a political check would be the executive branch’s refusal to enforce the Court’s decisions. As Hamilton put it, the judiciary is the least dangerous branch because it has “no influence over either the sword or the purse.” The Federalist No. 78 (Alexander Hamilton). Instead, the executive branch has the sword, which it can decline to use to enforce the Court’s decisions “at its peril.”
Another response is that the Constitution, and especially the Bill of Rights, was designed to check future majorities as much as to enable future majorities to govern themselves, and, therefore, the anti-democratic implications should be embraced, not lamented. Arguably, even before the Bill of Rights it was understood that members of the federal judiciary would serve as a natural aristocracy, something James Madison recognized in Federalist 49. See The Federalist No. 49 (James Madison). In that essay, Madison articulates a number of arguments “against a frequent reference of constitutional questions to the decision of the whole society.” Id. The “permanency” of judicial appointments would allow judges to thwart the “passions” of current majorities and provide a more stable government based upon “reason.” Id. We created a republic with checks and balances, not a direct democracy, for that very reason.
I mention such responses only to acknowledge them, not to suggest they are decisive. And there are a number of other responses I will not mention because my point here is different. My point is that, even assuming the originalist arguments are compelling with respect to interpretation of the United States Constitution, those arguments cannot be transplanted mechanically into discussions of how to interpret the Utah Constitution. For originalists, any discussion of Utah originalism must rely upon the history surrounding the Utah Constitution.
Originalism and the Utah Constitution
To be clear, this article does not demonstrate that Utah judges are authorized to employ a common law method and consider policy arguments when interpreting the Utah Constitution. That requires much more discussion. Instead, this article 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.
Consider how the originalist arguments described above differ when the discussion changes to the Utah Supreme Court’s authority to interpret the Utah Constitution, ratified in 1896.