In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?
Mike Ramsey, over at the Originalism Blog, makes reference to originalism for state constitutions. One state constitution that appears to receive an originalist interpretation is the Utah Constitution. Over the summer, I gave a talk on originalism, derived from this article, to the Utah Bar Association, and was pleased to discover that the Utah Supreme Court appears to have adopted an originalist methodology for interpreting its Constitution. Here is an excerpt from the Supreme Court decision in American Bush v. City of South Salt Lake, 140 P.3d 1235 (2006):
The scope of Utah’s constitutional protections “may be broader or narrower than” those offered by the First Amendment, “depending on [our] state constitution’s language, history, and interpretation.” West, 872 P.2d at 1004 n. 4. The interpretation of the protections afforded by the Utah Constitution appropriately commences with a review of the constitutional text. Grand County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148 (explaining that “our starting point in interpreting a constitutional provision is the textual language itself”). While we first look to the text’s plain meaning, State v. Willis, 2004 UT 93, 100 P.3d 1218, we recognize that constitutional “language … is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them.” Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). We thus inform our textual interpretation with historical evidence of the framers’ intent. State v. Betensen, 14 Utah 2d 121, 378 P.2d 669, 669-70 (1963) (“[I]t is proper to look not only to the [constitution] itself, but to the background out of which it arose and its practical application in order to determine the [framers’] intent.”); see also Univ. of Utah v. Bd. of Exam’rs, 4 Utah 2d 408, 295 P.2d 348, 361-62 (1956) (“[I]f the words are ambiguous or their meaning not clear, then it is proper to look outside the instrument itself to ascertain what the framers meant by the language used.”).
In reviewing the history of Utah constitutional provisions protecting the freedom of speech, “we [have] look[ed] for guidance to the common law, our state’s particular … traditions, and the intent of our constitution’s drafters.” West, 872 P.2d at 1013. We also have looked to court decisions made contemporaneously to the framing of Utah’s constitution in sister states with similar free *1240 speech constitutional provisions. KUTV, Inc. v. Conder, 668 P.2d 513, 518-21 (Utah 1983). In light of the fact that the Utah Constitution was “adopted … against the background of over a century of experience under the United States Constitution,” an understanding of the First Amendment contemporary to its adoption is also instructive. Id. at 521.
In summary, 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. 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. It is from this latter class of individuals that the Utah Constitution derives its power and effect, and it is to them we must look for its proper interpretation.
What is most interesting here is the Court’s statement that it looks to the following sources at the time of the framing of the Utah Constitution: the common law, the state’s particular traditions, the intent of the constitution’s drafters, court decisions in sister states with similar free speech constitutional provisions, and understandings of the United States Constitution. This makes perfect sense from an originalist perspective, since these sources are likely to provide guidance as to the original meaning (under both an original intent and original meaning perspective). While these sources differ from those considered when determining the original meaning of the United States Constitution, the obvious reason is that the Utah Constitution was adopted at a different time and in different circumstances.