This article was published as a comment in the Utah Law Review in 1996. The online version was posted to http://www.xmission.com/~wake/section27.html in 2004 and contains some revisions. The endnote numbers in the online version are bolded when the endnote provides more information than just a citation. The author, Paul Wake, holds the copyright to this article.
Note that in 2006, the Utah Supreme Court decided American Bush v. City of South Salt Lake, 2006 UT 40, 140 P.3d 1235, which reshaped constitutional analysis. American Bush dealt with the constitutionality of South Salt Lake’s ban on nude dancing. The Court narrowly decided that nude dancing is not protected speech. In coming to this conclusion, the Court explained that proper constitutional analysis focuses on text, as clarified by history. This requires judges to determine what the drafters of the Utah Constitution, and especially what the citizens who voted for the Constitution, meant its words to say (this focus on the citizens is interesting). The majority in American Bush thought it clear that the Utahns who wrote and voted for the Constitution did not intend its free speech provisions to protect nude dancing. The rationale used to support this decision expressly stepped away from considering policy arguments in the analysis of the Constitution, as had been advocated in some earlier cases. Attorneys need to be aware of that shift. American Bush has some odd aspects, such as its emphasis on common law principles from Blackstone’s pre-Revolutionary War Commentaries on the Laws of England as the source of the framers’ understanding of freedom of speech, as opposed to natural law and sister state law of states from which Utah borrowed constitutional provisions (for a view suggesting a lack of enthusiasm for the common law among Utah’s pioneers, see Michael W. Homer, The Judiciary and the Common Law in Utah: A Centennial Celebration, Utah Bar Journal, Sept. 1996, at 13). Also, the Court had an unusual understanding of the primacy approach. In addition, the decision did not address the possible application of the Constitution’s unenumerated rights provision, Article I, Section 25. Even so, although this online article and its references provide a good starting point for researching the Utah Constitution, attorneys, judges, and scholars should also study American Bush carefully, and do further research to find other new cases and articles on the Utah Constitution. Doing further research will help one find more recent cases like State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, in which the Utah Supreme Court came down squarely for the primacy approach (and then decided the case without using traditional constitutional analysis). See also R. Shane Johnson, Use It or Lose It!: A Criminal Defender’s Guide to the Utah Constitution, 2 Utah J. Crim. L. 1 (2015).
Utah celebrates its centennial this year, and because Utah’s Constitution1 is also one hundred years old, this is a good time to think back on the legal history of the state’s supreme law to see what guidance it gives for the future. Thinking about the Utah Constitution is particularly important given the current upsurge of interest in state constitutional law. One provision in Utah’s Constitution, Article I, Section 27 (“Section 27”), seems by its terms to be more important than any other part of the Constitution. Section 27 states: “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”2 No other provision in the Constitution claims to show an essential key to freedom. Yet strangely, virtually no jurist or scholar has commented on Section 27. This Comment seeks to fill this void by exploring the meaning of Section 27 of the Utah Constitution.
Section II of this Comment describes general recommended methodologies for analyzing questions of state constitutional law. The Utah Supreme Court has urged Utah lawyers to study and apply the provisions of the Utah Constitution; Section II summarizes the Court’s suggestions on how to analyze state constitutional law, and gives examples from Utah case law.
The remainder of this Comment then applies those methodologies to an analysis of Section 27 of the Utah Constitution. In keeping with the Utah Supreme Court’s view that ambiguous text should be read in its historical context, Section III provides a legal history of the Utah Constitution. Reference to history is especially necessary when trying to find common threads running through various discussions of constitutional text. Section III will show that Utahns sought statehood largely to escape federal domination. The framers of the Utah Constitution crafted it as the social contract for a new sovereignty and in the process increased the number of rights Utahns could enjoy. Both Section II and Section III will be useful to practitioners and jurists approaching a variety of Utah state constitutional law questions.
Applying the interpretive methodologies discussed in Section II in the light of the constitutional history discussed in Section III, Section IV of this Comment analyzes the meaning of Article I, Section 27 of the Utah Constitution. Section IV contributes to a discussion of what may be the most important part of the Constitution—the unwritten principles that are the foundation of individual rights and free government. Section IV concludes that Section 27 of the Utah Constitution urges Utahns to remember the importance of popular participation in politics and to appreciate the structures of government that protect freedom. Such recurrence will motivate citizens to fulfill their civic responsibilities including obeying the law, educating themselves politically, and voting intelligently. Section IV of this Comment also concludes that Section 27 of the Utah Constitution provides a strong argument for strengthening the role of both Utah courts and state government in protecting the rights of Utahns. The Utah Constitution can and should be used to protect rights and to perpetuate a free government during Utah’s second century.
In 1776, a group of Virginians assembled in Williamsburg and called on Virginia’s delegates to the Continental Congress to declare independence from England so that Virginians could enjoy sovereignty under a social compact of their own design.3 Williamsburg is still a center of revolutionary activity. In 1985, leading scholars of state constitutional law met in Williamsburg to discuss the resurgence of interest in state constitutional law.4 In 1994, Republican state governors met in Williamsburg to plan how to shift the balance of federal and state power back toward the strong state role envisioned by the founders in the United States Constitution.5
While some people have appreciated the important role of state constitutional law in contemporary society, Utah’s Supreme Court has emphatically warned the Utah Bar that some of its members have neglected to consider state constitutional law issues in cases coming before the Court. For example, in State v. Earl,6 which involved a search and seizure question, the Court noted that neither party discussed the Utah Constitution’s provision on search and seizure.7 The Court observed that
other states are relying with increasing frequency on an analysis of the provisions of their own constitutions to expand constitutional protection beyond that mandated by the United States Supreme Court. . . . We note, however, that despite our willingness to independently interpret Utah’s constitution in other areas of the law, the analysis of state constitutional issues in criminal appeals continues to be ignored. . . . It is imperative that Utah lawyers brief this Court on relevant state constitutional questions. . . . We cite with approval the summary of scholarly commentary and analytic technique set forth by the Supreme Court of Vermont in State v. Jewett . . . .8
The Earl Court essentially told Utah lawyers to become familiar with State v. Jewett9 and to apply its analytic technique to Utah’s Constitution.10 Jewett dealt with whether a defendant was stopped and arrested in violation of a civil rights provision in the Vermont Constitution.11 The Court in Jewett bemoaned the fact that the parties failed to brief the state constitutional law issue.12 Rather than simply complaining about this failure, the Court instructed the bar on how to analyze state constitutional law.13 The Court then instructed the attorneys to file supplemental briefs covering the state constitutional issue.14
The Jewett Court noted a “resurgence of federalism” sweeping the country and quoted Oregon Justice Hans Linde’s statement: “‘A lawyer today representing someone who claims some constitutional protection and who does not argue that the state constitution provides that protection is skating on the edge of malpractice.’”15 The Jewett Court also repeated with approval the observation of a young lawyer that the state Constitution “is the highest law of our state, yet it is sometimes esteemed the lowest. . . . It is our birthright, which we have sold for a bowl of federal porridge. . . . But it may soon be coming into new wealth.”16
The Court in Jewett expressed hope that the time would soon come when lawyers would once again speak “of legal concepts, their meaning and their origin.”17 Paraphrasing Linde, the Court observed sadly that people no longer speak of freedom of the press; they speak of First Amendment rights.18 People no longer speak of the privilege against self-incrimination, but of Miranda rights.19 The problem with this is that describing rights as emanating from the United States Constitution or from federal court decisions overlooks the existence of state constitutions as a rich source of rights.20 The time has come, said the Court, for a new generation of lawyers to grasp the opportunity to aid in the formation of a meaningful state constitutional jurisprudence.21 However, the Court cautioned that such interpretation must be principled; courts should not look to state constitutions merely as a means of reaching a result different from a decision of the United States Supreme Court.22
Having explained the need for greater attention to state constitutional law, the Jewett Court suggested some approaches to analyzing state constitutions. The first approach is to use historical materials.23 Legislative history, the social or political context in which a provision originated, or the fate of a provision in later constitutions can provide insight into how a provision should be interpreted.24 The second approach is textual in nature.25 Particularly when a state provision contains text not found in a similar federal provision, a court may be able to determine what the provision means simply by assessing the plain meaning of the words.26 The third approach looks at sibling-state law to see how courts in states with identical or similar provisions have interpreted those provisions.27 Finally, a fourth approach involves studying economic and sociological materials supporting or discrediting contentions at issue.28
In addition to these approaches, the Court also mentioned six methods of analysis discussed by Professor Philip Bobbitt.29 Bobbitt’s recommended approaches are the historical, textual, doctrinal, prudential, structural, and ethical.30 Other approaches are also possible; it is up to imaginative attorneys to find the most appropriate approach.31
The Jewett Court also warned lawyers to be aware of the U.S. Supreme Court’s decision in Michigan v. Long.32 In Long, the U.S. Supreme Court observed that a state court decision may appear to be based on both federal and state law and the “adequacy and independence“ of the state law ground may not be clear. In such a case, the federal court will assume that the state court decided as it did because it was required to do so by federal law.33 Consequently, when arguing specifically on state constitutional law grounds, lawyers (and judges writing opinions based on state constitutions) should make clear that their argument rests on independent and adequate state grounds.
The Utah Supreme Court had more to say on state constitutional law in Society of Separationists, Inc. v. Whitehead,34 where the Court dealt with the constitutionality of prayer in city council meetings.35 The Utah Supreme Court again encouraged lawyers to brief state constitutional law issues, saying:
We have encouraged parties briefing state constitutional issues to use historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials to assist us in arriving at a proper interpretation of the provision in question. . . . Each of these types of evidence can help in divining the intent and purpose of the framers, a critical aspect of any constitutional interpretation.36
Moreover, in Society of Separationists, the Court stepped through a detailed state constitutional law analysis. Repeating Justice Holmes’s observation that “‘a page of history is worth a volume of logic,’”37 the Court stated: “Although it may not be the only starting place for an analysis of the language of article I, section 4, we begin with history.”38 Over the next nine pages, the Court recounted the history of the Utah pioneers as it related to religious freedom.39 With that history as a prologue, the Court then analyzed whether prayers in city council meetings violate Article I, Section 4 of Utah’s Constitution.40
Article I, Section 4 prohibits the use of public funds or property for “religious worship, exercise or instruction.”41 Because the Court noted that there is little guidance in case law defining what constitutes religious worship, it turned to the dictionary and to common sense to interpret what constitutes religious worship or exercise.42 Concluding that prayer is a religious exercise, the Court then looked at whether public funds were being improperly appropriated for a religious purpose.43
In the absence of relevant Utah case law, the Separationists had cited Washington state case law to support their theory that even indirect or minimal expenditures for religious purposes were unconstitutional.44 Accordingly, the Court examined Washington cases interpreting Washington’s Constitution.45 However, the Court distinguished the Washington cases based on their different fact patterns and because those fact patterns implicated a provision of the Washington Constitution different from the one analogous to the Utah provision at issue.46
Turning back to the Utah Constitution, the Court determined that since there was no Utah case law on point and since there was no direct expression of the intent of the founders, the Court would look for “thematic threads running through the constitution” to determine the meaning of Article I, Section 4.47 Then, the Court interpreted the text of the Utah Constitution in light of the history recited earlier in its decision.48 The majority concluded that the framers of Utah’s Constitution did not want to prefer one religion to others but also did not want government to be hostile toward any religion.49 Consequently, the Court held that allowing a variety of denominations to offer prayers at various city council meetings did not offend the Utah Constitution because it merely allowed freedom of religion in a neutral manner.50
The Court also emphasized that, while federal court rulings on federal constitutional protections set a floor that the states must respect, Utah courts should not simply rely on federal interpretations of federal law but must legitimately interpret Utah’s own distinctive law.51 In other words, federal constitutional rulings describe the minimum constitutional rights states must respect, but states may provide greater rights. State courts should consider whether their state constitutions require such action. In addition, Utah courts can refer to provisions of sister- state law, although because even similar text can be interpreted differently in different historical contexts, Utah courts must take ultimate responsibility for interpreting the text of Utah laws.52
While it should be obvious that state courts are free to interpret distinctive state constitutional provisions as they see fit, some might wonder how state courts should interpret state constitutional provisions mirrored by identical or similar federal constitutional provisions. In an article written for the Utah Bar, Justice Christine Durham of the Utah Supreme Court described three approaches used for such analysis: the primacy, interstitial, and lockstep approaches.53
Under the primacy approach, state courts first analyze the state provision and look to the federal provision only if the state provision is not dispositive.54 Under the interstitial approach, a state court turns to a state provision only if the federal provision does not adequately protect a right.55 This approach can result in unprincipled, result-oriented jurisprudence.56 Under the lockstep approach, a state follows federal interpretation of a federal provision if it is identical or similar to a state provision.57 Montana’s Supreme Court used the lockstep approach when it decided that because the language used in the Montana and United States Constitutions regarding self-incrimination was virtually identical, “[t]he Montana constitutional guarantee affords no greater protection than that of the federal constitution.”58
Justice Durham admitted that the Utah Supreme Court has not explicitly adopted any one of these three approaches but has used each at different times.59 However, the Court might be expected to develop a preference for one of these approaches. Justice Durham pointed out that Utah lawyers have a unique opportunity to assist in shaping the Court’s approach to state constitutional analysis.60 Moreover, Durham said, “The Court needs the help of lawyers to begin to fill the scholarly void surrounding many interesting questions of state constitutional law.”61
The Utah Supreme Court may be moving toward use of the primacy approach. In West v. Thomson Newspapers,62 the Utah Supreme Court recently considered whether the Utah Constitution protected a newspaper from a libel claim by a local politician.63 Justice Durham’s majority opinion explained the primacy, interstitial, and lockstep approaches to cases involving similar state and federal provisions.64 The West opinion then added that there is at least one more approach courts should consider—the dual sovereignty approach.65 Under the dual sovereignty approach, a court looks at both state and federal provisions even if the federal provision alone could be dispositive.66 In West, the Court decided that of these four approaches, the primacy approach provided the best way to address the interests involved in defamation cases.67 The Court thought “defamation is an area particularly well suited to the primacy approach” since the Court could efficiently build on the floor of rights created by the U.S. Constitution’s First Amendment.68 However, the Court stated that it would not necessarily use the primacy approach in all cases, noting that other approaches may better serve the Court in other contexts.69
In Section II of this Comment, I have tried to find and describe the appropriate methodology for analyzing Article 1, Section 27 of the Utah Constitution. I have also tried to describe state constitutional law analysis generally enough to aid practitioners approaching a variety of state constitutional law issues.
Members of the legal profession have an obligation to consider the Utah Constitution in briefing issues that may be addressed by that Constitution. Interpretation of state constitutional provisions may include analysis of the text of relevant constitutional provisions and consideration of historical materials, sister state decisions, and policy arguments based on relevant economic and sociological materials. Other means of analysis are also possible.
When either state or federal constitutional provisions could be dispositive of an issue, lawyers and judges should clearly state when they are using the state provision as an independent and adequate ground for a particular conclusion. Where a state provision is similar to a federal provision, lawyers may need to argue that the court consider a primacy, interstitial, lockstep, dual sovereignty, or some other analytical approach.
Utah’s Pioneer Day holiday celebrates an unusual occurrence in American history—the day a group of people found refuge outside the United States after fleeing the country because of religious persecution.71 Utah’s Mormon pioneers had been driven from Missouri and Illinois, and in July of 1847 an advance party entered the Salt Lake Valley, then a part of Mexico.72 To govern the settlers, Mormon leader Brigham Young organized a High Council and a Council of Fifty.73 The pioneers called their new home “Deseret.”74
The Mormon leaders were experienced at governance. Some, for example, had helped build and govern the Mormon city of Nauvoo, Illinois—a city that at the time may have been larger than Chicago.75 Moreover, the Mormons were an unusually cohesive group, socially unified by their interdependence and sense of having a common mission and shared responsibilities.76 This sense of being one people led by prophets of God meant that Mormon leaders decided both religious and civil questions; church and state were one.77
Even though the Mormons were isolated in the Great Basin,78 they realized that once the Mexican War concluded they would have to deal with either the Mexican or American government.79 After the Treaty of Guadalupe Hidalgo was signed in 1848, bringing the Great Basin under American control, the Mormons petitioned the U.S. Congress for territorial status.80 Mormon leaders sent this request eastward with Dr. John Bernhisel in the spring of 1849.81 However, the Mormons soon realized that statehood would give them more control over their own affairs than would territorial status.82 With statehood they could pick their own political leaders and make their own laws, instead of being governed by federally appointed territorial officials.83 Consequently, Mormon leaders wrote a Constitution and began to press for statehood rather than designation as a territory.84 They sent the proposed Constitution to Congress a few months after Bernhisel’s departure.85
The 1849 Constitution of the State of Deseret86 noted in its preamble that Congress had not provided for civil government of the area acquired from Mexico.87 The preamble went on to observe that “it is a fundamental principle in all Republican Governments that all political power is inherent in the People” and requested that Congress adopt the people’s Constitution.88
The body of the rather short Constitution sketched out legislative, executive, and judicial branches of government, restricting both suffrage and membership in the legislature to white males.89 The Constitution called for a legislative General Assembly composed of a House of Representatives with two-year terms for each Representative and a Senate with four-year terms for each Senator.90 The planned executive branch would consist of a governor who could veto legislation (the veto could be overridden by a two-thirds vote),91 command the militia, grant pardons, and perform other common executive tasks; a lieutenant governor; a secretary of state; a treasurer; and an auditor.92 The Constitution of 1849 called for a Supreme Court made up of three justices, and for other courts as created by the General Assembly.93 This framework of government was consistent with many other states’ constitutions.94
A Declaration of Rights at the end of the Constitution asserted that in a republican government, all men enjoy natural and inalienable rights, that political power is inherent in the people, and that government exists to secure the rights of the people and can be altered by the people when necessary.95 The Declaration also stated that no religious denomination would receive preference,96 and upheld freedom of speech and of the press97 while holding individuals responsible for the abuse of those rights.98 Among the other provisions in the Declaration was a provision barring from public office anyone who ever participated in a duel.99 The Declaration concluded with a statement that the enumeration of these rights did not deny that other rights exist.100
This first attempt at statehood under the 1849 Constitution of Deseret failed in part because of the politics of slavery. In the Compromise of 1850, Congress appeased the slave states by admitting only California as a state, and made Utah and New Mexico territories with the right to vote for or against slavery within their borders.101 To the Mormons’ delight, though, Brigham Young was named governor of the Utah Territory102 (many Utahns had feared that a carpetbagging official from the East would be imposed on them).
Already, however, Utahns were on the verge of seeing local control over civil government swept away. By 1852, the Mormon practice of polygamy had become widely known.103 This practice did not endear Mormons to the nation; the Republican party would eventually call polygamy one of the “twin relics of barbarism” (the other was slavery)104 and the federal government would work to stamp it out.105 In 1852, 1853, and 1854 Utahns requested that Congress authorize a constitutional convention so the territory could write another constitution and make a second attempt at statehood. However, these requests were denied, largely because of polygamy.106 Eventually, the territorial legislature called a constitutional convention, and the delegates to that convention wrote the Constitution of 1856.107
The 1856 Constitution of the State of Deseret was similar to the 1849 Constitution.108 Its main difference was organizational, in that the framers moved the Declaration of Rights to the front of the Constitution.109 In the accompanying memorial to Congress, the convention delegates claimed that the proposed Constitution was “unexceptionable in its features of republicanism and equal rights, following strictly in the channel of the constitutions of other States,”110 and vouched for the loyalty of Utahns to the Union.111 The delegates asked for admission to the United States as a “free and sovereign State, in the great confederacy of our republic,”112 citing the accomplishments of the people of the territory in taming and civilizing the rugged land (and its original occupants).113 The delegates also proclaimed the rights of Americans to be ruled by laws of their own making.114
Unfortunately for Utahns,115 the Republicans won a majority in the U.S. House of Representatives in 1856, and the leaders of the territory knew their plea for statehood would fall on deaf ears.116 Nevertheless, in 1858 and 1860 Utahns again asked Congress to consider statehood based on the 1856 Constitution.117 The 1858 attempt was particularly bold, coming as it did at the end of the Utah War.118 The 1858 attempt was also bold in that it came a few months after a committee of Salt Lake citizens wrote a pointed letter to Congress. The letter recited part of the history of governmental persecution of the Mormons and accused the United States of beginning another round of such atrocities.119
Congress ignored the 1858 and 1860 requests for statehood based on the 1856 Constitution. In reaction, Brigham Young addressed the territorial legislature and decried the evil of a people being subject to the orders of a government in which they had no effective representation.120 Agreeing with Young, the Utah territorial legislature in 1861 overrode Governor Dawson’s121 veto of their act calling for a constitutional convention, and a convention was held in 1862.122 The Civil War was raging at this time, and Utahns may have thought the opportunity to add a state to the Union would overcome congressional concerns about polygamy.123
The 1862 Constitution of the State of Deseret124 was similar to the 1856 Constitution and was created in four days.125 In sending the proposed 1862 Constitution to Congress, the members of the convention “more boldly” claimed their “unquestionable right” to admission as a state.126 Addressing the argument that Utah might not be ready for statehood and still needed the federal government’s help and supervision, the delegates decried territorial supervision as an offensive “mess of pottage” inadequate to compensate for the loss of the “holy birthright” of self-government.127 However, Congress again refused to grant statehood.
In 1867, the territorial legislature amended the 1862 Constitution and again submitted it to Congress.128 Aside from again shrinking the geographic boundaries of the proposed state,129 the main changes were allowing any citizen to be a member of the legislature130 and allowing any male citizen to vote.131 In the aftermath of the Civil War, extending suffrage to African Americans was probably viewed as a good (and necessary) way to curry favor with Congress. The accompanying memorial called upon Congress to respect the “inherent, inalienable, and constitutional rights guaranteed to every American citizen”132 and allow Utahns the right of self-government.133 However, the Republicans controlling the federal government still remembered and opposed polygamy,134 and Congress rejected the proposed 1867 Constitution.
By 1872, Utahns had decided to try a different tack. Believing that the earlier proposed Constitutions were tainted by defeat, the legislature called a constitutional convention to again rewrite the Constitution of the State of Deseret.135 The constitutional convention differed from earlier conventions in that gentiles136 participated meaningfully in the convention.137
The earlier constitutions of Deseret had not differed very much from each other. In contrast, the 1872 Constitution of the State of Deseret138 was longer than its predecessors and included short sections on impeachment,139 municipalities and corporations,140 finance and debt,141 tax,142 education,142 and public institutions.144
The 1872 Constitution called for a legislature made up of a House of Representatives and a Senate, with members serving two-and four-year terms, respectively, and meeting biannually.145 The executive branch would be made up of a governor, lieutenant governor, secretary of state, treasurer, auditor, surveyor-general, superintendent of public instruction, and an attorney general.146 The governor would veto bills (which could be overridden by a two-thirds vote), command the military, and otherwise perform a number of common executive functions.147 The judicial power of the state would lie in a supreme court, probate courts, municipal courts, and justices of the peace.148
The 1872 Constitution also contained a number of changes that showed the framers’ desire to compromise with federal concerns. The Constitution reaffirmed natural rights and popular sovereignty but added a sentence professing that the “paramount allegiance” of every citizen is to the federal government.149 Other changes included modifying the provision on freedom of religion and freedom of conscience so that it exempted acts of licentiousness from constitutional protection,150 and adding a provision that extended suffrage to women.151
The framers of this Constitution pointed out Utah’s wealth of resources and argued that, with statehood, Utah could develop enough to exploit and share this wealth with other states.152 Nevertheless, statehood foundered once again on the issue of polygamy. Congress was not moved to action by assertions that the territorial government was colonial and oppressive, that territorial officials did not care about the people of Utah, and that denying local sovereignty while failing to provide for adequate judicial facilities denied Utahns their rights as Americans.153 An attempt to get the statehood bill past the hostile Committee on Territories by attaching it to a Colorado statehood bill as an amendment also failed.154
By the 1870s, forces within the state were conspiring to block statehood. In 1870 the Godbeites,155 a group of gentile businessmen who opposed Mormon economic power, joined with apostate Mormons to form the Liberal Party.156 This group also began publishing a newspaper, the Mormon Tribune, which became the Salt Lake Tribune.157 The Mormons formed their own political group, the People’s Party. The Deseret News became the media arm of the People’s Party158 (the Salt Lake Herald also favored the People’s Party159). The Liberals attacked Mormon power on a wide front, from encouraging mining in Utah160—something Brigham Young discouraged161—to telling Washington politicians of the affronts to democracy supposedly wrought by the Mormons.162 Hostility between the groups was so intense that when Brigham Young died, the Salt Lake Tribune opined that “the most graceful act of his life has been his death.”163
Furthermore, the Liberals supported passage of the Edmunds Act, which disenfranchised polygamists164 and barred Mormons from jury service, in an attempt to break the power of the Mormon church.165 Realizing that the federal government could impose such restrictions on them because of Utah’s territorial status, Utahns pressed to seek the independence inherent in statehood.
While Congress was considering passage of the Edmunds Act, Utahns held another constitutional convention.166 Shortly after the Edmunds Act passed, the convention drafted the 1882 Constitution of the State of Utah.167 This Constitution was similar to the Constitution of 1872, containing minor revisions addressing, among other things, how bills would be passed, how votes for Governor would be counted, and what types of courts the state would have.168 The 1882 Constitution dropped the language about individuals’ responsibility for their exercise of free speech.169 However, the Constitution added a provision reading: “The blessings of free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and frequent recurrence to fundamental principles.”170 The 1882 Constitution suggested additional willingness to compromise with the federal government in that the delegates accepted “Utah” rather than “Deseret” as the name for their state.171 The delegates to the convention were adamant, though, in asserting that Utah’s territorial status and its treatment under that status “grossly violated” “essential principles of American republicanism, as enumerated in the Declaration of Independence” and kept the people of Utah in a “condition of vassalage.”172 In keeping with this sentiment, the delegates did not include in the 1882 Constitution the 1872 Constitution’s language about citizens’ paramount allegiance to the federal government.173 The Liberals, meanwhile, worked diligently to keep Congress from granting statehood.174 Because sentiment in Washington was against Utah’s statehood until polygamy ended, the 1882 Constitution was also doomed.
Most Utahns, however, were disinclined to bow before federal pressure to change their ways. In a mass meeting held in 1885, Mormon seventy B.H. Roberts called it a duty of free men to resist “whenever oppression shall rear its head, or the hand of tyranny shall aim a blow at liberty.”175 Roberts called for an end to the “political serfdom and religious bondage” imposed by Utah’s territorial status.176
Predictably, Utahns were back in constitutional convention within the decade. The People’s Party called a convention shortly after the Edmunds-Tucker Act177 passed Congress.178 However, the Liberal and the Republican Parties declined to attend the convention and the Democratic Party claimed it did not have time to prepare.179
The People’s Party went ahead with the convention anyway, producing a Constitution similar to the Constitution of 1882.180 However, the 1887 Constitution of the State of Utah contained an antibigamy/antipolygamy clause.181 It also contained a clause going beyond the previous Constitution’s provision against religious tests for holding public office or for suffrage, the new clause stating: “There shall be no union of church and State, nor shall any church dominate the State.”182 The Constitution retained the clause: “The blessings of free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”183
In the memorial accompanying the Constitution to Congress, the delegates implored, “‘[W]e ask for a republican form of government,’ and we ask that it be given us now.”184 Despite that insistent demand, most of the memorial took a calmer tone. The delegates acknowledged the political turmoil involved in the antipolygamy crusade but reminded Congress that the pioneers had first “unfurled the stars and stripes” in Utah when it was still Mexican soil.185 In addition, the memorial suggested that as a loyal state, Utah’s bounteous resources “would increase the strength of the Union”186 and save it a good deal of money.187 Congress rejected this Constitution also.
In 1890, Mormon leadership announced the change that would make statehood possible. Mormon prophet Wilford Woodruff issued a statement, known as the “Manifesto,” advising church members not to enter into illegal (polygamous) marriages.188 Hoping to capitalize on this announcement, church leaders dissolved the People’s Party and asked church members to join either the Democratic Party or the Republican Party.189 By 1893, with polygamy essentially ended and Utahns participating in national political parties, even the Salt Lake Tribune came out in favor of statehood.190 In that same year, positive congressional response to an argument concerning polygamy between Utah’s delegate to the U.S. House of Representatives, Joseph Rawlins, and Representative Morse of Massachusetts, showed that Congress had tempered its views toward Utah.191 The following year, Congress passed an enabling act allowing Utah to apply for statehood.192
On the morning of March 4, 1895, the Salt Lake Tribune announced the opening of the constitutional convention that would produce Utah’s first—and present—official Constitution;194 the newspaper then printed biographies of the convention delegates.195 Subsequent issues of Utah’s major papers eagerly followed the proceedings of the convention. The delegates to the convention crowded into the county civil courtroom of the new Salt Lake City and County Building,196 and, after a squabble over who should open the convention,197 the convention got underway. The delegates eventually chose John Henry Smith as president of the convention.198 Smith, a Mormon apostle, was a Republican; the Democrats did not nominate anyone for the position, perhaps to avoid forcing Mormon party members to vote against an apostle.199
The convention formed committees that week.200 The Committee on the Preamble and Declaration of Rights was charged to draft a Declaration of Rights as rapidly as possible, so that the first debates of the convention could be on the Declaration of Rights.201 One of the major debates in the convention was over women’s suffrage.202 Both parties supported suffrage,203 but an improbable coalition led by Mormon seventy B.H. Roberts fought hard against it. Roberts opposed suffrage because he thought it would degrade women by subjecting them to the muck of politics and because he thought that putting women’s suffrage into the proposed Constitution would jeopardize statehood by raising fears of increased Mormon power.204 Most of the other antisuffrage coalitionists were old Liberal Party members who opposed suffrage because they feared it would give the Mormons too much power.205 Other debate ranged from whether private corporations should exercise eminent domain to the scope of public education, from whether to implement prohibition in Utah to the appropriate pay for state officials.206
After two months, the Constitution was complete.207 The delegates had searched the constitutions of the various states and of the United States, compared provisions to see what would work best in Utah, and created the Constitution we have today (although subsequent amendments have considerably reshaped it).
The 1895 Constitution’s Declaration of Rights began with a provision declaring that everyone has “inherent and inalienable” rights to life, liberty, and property, to freedom of religion, and to freedom of speech subject to being responsible for the exercise of that right;208 earlier Constitutions simply declared a natural right to life, liberty, and the pursuit of happiness.209 The “frequent recurrence” provision was shortened to its current form.210 Also, the delegates added a provision stating that “Utah is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.”211
The Constitution’s legislative section212 was structured along the lines of the earlier Constitutions, although the legislature was specifically prohibited from passing certain types of private laws.213 The governor’s duties were similar to those under the 1882 Constitution,214 although like the legislative section, the executive section was more detailed than in earlier Constitutions.215 In addition, the 1895 Constitution removed the position of surveyor-general.216 The judicial power was given to a supreme court, district courts, justices of the peace, and whatever other courts the legislature might establish.217 The Constitution established a public school system with free primary education, and free secondary education in Utah’s larger cities.218 Other articles addressed municipalities, corporations, taxation, debt, the militia, labor, protection of forests, public institutions, public lands, and salaries.219
After approval by the populace, a delegation took the Constitution to Washington. President Cleveland, a Democrat perhaps irritated that Utah had gone Republican, delayed Utahns one more time by waiting two and half weeks to sign the proclamation declaring Utah a state; he did this in his private office while a delegation from Utah waited elsewhere in the White House.220 Still, after almost forty years, Utah was finally a state with a Constitution of its own.221
Arguably the most important part of the Utah Constitution is Article 1, Section 27 which states: “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”222 No other part of the Constitution claims to be “essential.” Because of its importance, it would certainly be convenient if the meaning of Section 27 were clear. Unfortunately, it is not.223 Consequently, a key that is “essential” to maintaining individual rights and free government—the understanding of what constitutes “fundamental principles”—seems clouded from view, awaiting a more diligent analysis of the text, constitutional and social history, and sister-state interpretations of this provision.
Section 27 states that without frequent recurrence224 to fundamental principles, individual rights will not be secure and free government will not continue. Section 27 does not explicitly command any particular person or entity to do the recurring,225 but since individual rights and the enjoyment of free government are desirable, the implication is that someone should recur. Section 27 does not indicate whether recurrence alone is enough to secure individual rights and to perpetuate free government, nor does it say how frequent recurrence to fundamental principles works to secure these benefits. It seems likely, though, that recurrence would be part of what is necessary to secure individual rights and to perpetuate free government. That is, frequent recurrence to fundamental principles should motivate individuals to take actions that result in greater security for individual rights and help to perpetuate free government.
The language of Section 27 suggests that fundamental principles are not equivalent to specific individual rights, because securing individual rights results from recurring to fundamental principles. In other words, Section 27 is a reminder, placed at the end of a list of rights, that rights do not exist without responsibilities. Those responsibilities include upholding fundamental principles. Unfortunately, it is still unclear exactly what those fundamental principles are.
With the text of Section 27 providing insufficient insight into what it means, a look at the legislative history of the provision is in order. The legislative history of Section 27 is very sparse and thus does not provide a great deal more insight into Section 27 than one gets from reading the provision itself. There is less than one page of discussion of the provision in the record of Utah’s constitutional convention.226 This discussion consists of a brief debate sparked by a question about the provision.227
On the final day of the debate over the Declaration of Rights, attention eventually228 turned to the final provision of the Declaration, Section 27.229 Delegate Charles Varian230 asked to whom the provision applied and how those people were to comply with it.231 Varian said he was concerned with whether the provision conflicted with Section 26 of Article I, which states: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”232 However, Varian also said that if the provision had been copied from Washington’s Constitution, it would be fine.233 Immediately following Varian’s question, delegate W.G. Van Horne moved to strike Section 27, but did not give his reasons for this motion.
The chairman of the Standing Committee on the Preamble and Declaration of Rights, Heber Wells,234 responded by saying:
[T]he committee deem this to be a patriotic utterance, that frequent recurrence should be made to fundamental principles, because the tendency of the times might be as it has been in the past, not to recur very often to fundamental principles. When the people are oppressed and do not get their rights, it may be necessary to recur to fundamental principles. We thought it a patriotic utterance that did no harm in the declaration of rights . . . .235
While Wells’s statement that Section 27 is only a patriotic utterance did not answer Varian’s concern about its potential conflict with Section 26, Wells did give a reason for Section 27 being in the Constitution. It is there because historically, people have not often recurred to fundamental principles and this has somehow cost them their freedoms. The implication is that there are forces or influences that will, if left unchecked, take away people’s rights and misuse free government. Consequently, unless citizens vigilantly work to preserve the integrity of their free government, they may be subject to oppression. Presumably, the framers of Utah’s Constitution hoped that by reminding people to frequently recur to fundamental principles, people will take whatever actions are necessary to preserve their rights and to uphold free government.
Orson Whitney,236 also a member of the Declaration of Rights committee, spoke next:
This is not the first section in this document which declares a fundamental principle without guaranteeing it. We declare that all men have the inalienable right to enjoy and defend their lives and liberty. We suppose that the Legislature shall provide how they will be secured to them. The declaration of a general principle does not hurt anything. I think it ought to stand as it is.237
Whitney’s response addressed Varian’s question about whether Section 27 is mandatory or prohibitory, by observing that Section 27 is not the only time the Constitution declares a fundamental principle without guaranteeing it.238 Even if this response satisfied Varian’s Section 26 concern, Whitney did not say who is to recur and what the principles are to which they should recur.
Next, delegate Franklin S. Richards239 spoke in favor of Section 27, after which the motion to strike the provision was defeated. Richards argued:
[T]his, like some other portions of this article, is simply a declaration of rights and the criticism that was made about not being enforcible [sic] or whether it is binding upon the officer or citizen, or the application that should be made of it, I think ought not to weigh in determining this question. It seems to me that it is there as an admonition from the great sovereign power of this State to every officer and every citizen and every person within the State, that there shall be frequent recurrence to fundamental principles, and to say that it is not enforceable in itself, is not an objection to the section, and I hope it will stand.240
Richards, who was not on the committee that drafted Section 27, argued that Section 27 is simply a declaration of rights. This is debatable since the rest of Article I is a Declaration of Rights and Section 25 of Article I exists to state that the people enjoy additional, unenumerated rights; consequently, there is no need for Section 27 as a declaration of rights. Richards may have been arguing more that general declarations about rights—like the Article I, Section 1 statement that people enjoy inherent and inalienable rights—are often unenforceable but are acceptable. Thus, Section 27 should similarly be acceptable even if it is not enforceable.
Richards also described Section 27 as an admonition to all, officers and citizens alike, to frequently recur to fundamental principles.241 This statement seems to answer squarely the question of who should fundamentally recur. Although one can question this conclusion because of the sketchy nature of the legislative history, the assertion makes sense and no one at the convention contradicted it.
The points these delegates made about Section 27 being a patriotic utterance or general admonition about political principles seem to reflect the belief that a constitution should not simply describe a framework for governance, but should also reflect the political philosophy that underlies the governmental structure. Viewed this way, Section 26—the section on mandatory and prohibitory provisions that Varian was concerned about in relation to Section 27—could be seen more as a command to enforce what is meant to be enforced without becoming unduly concerned about enforcing unenforceable statements of principle.
Still, the records of the convention debate give little idea of what the fundamental principles referred to in Section 27 might be. Perhaps the delegates thought the answer was too obvious to write. Fortunately, other parts of the convention records suggest what the delegates considered to be fundamental principles. For example, Franklin S. Richards discussed fundamental principles at length during the women’s suffrage debate, specifically mentioning Section 27.242 Asserting that such fundamental principles are found in the Declaration of Independence, Richards recounted the importance of popular sovereignty and limited government, proclaiming that when government does not respect the rights of the people, tyranny results.243 This seems to echo the earlier remarks of Heber Wells on Section 27.244 Richards believed that because government is only legitimate when it operates according to the consent of the governed, a legitimate government cannot deny suffrage to half its population.245 In Richards’s view, respect for the fundamental principle of popular sovereignty required extension of suffrage to women.246 While some delegates opposed women’s suffrage, none challenged Richards’s description of fundamental principles.
Discussion of political principles in the convention frequently involved reference to the Declaration of Independence or to the concepts therein.247 Looking at the convention records as a whole, one can see that the delegates clearly believed in the natural rights and political principles described in the Declaration of Independence. The delegates focused most on the importance of popular sovereignty and on the importance of having a limited federal government that respects individual rights.248 Also, just as the writers of the Declaration of Independence opposed tyranny and valued the rule of law, the framers of Utah’s Constitution valued the democratic rule of law—the idea that everyone, the weak and the strong, must respect the democratically created laws that make possible a free society.249
A longer look through history, focusing on the various proposed Constitutions for Deseret and Utah, gives additional insight into principles that the framers of the Utah Constitution found fundamental. The memorials accompanying the various proposed Constitutions consistently spoke of the right of the people to govern themselves, and the memorials submitted while Utah was a territory described territorial rule by the federal government as tyranny.250 Most Utahns believed that political leaders in Washington, D.C., and carpetbagging officials in Utah did not appreciate local values and desires. Moreover, most Utahns believed that the administration in Washington was ignoring constitutional requirements and protections by governing Utah arbitrarily.251 The memorials to Congress accompanying proposed Constitutions repeatedly emphasized the rule of law and urged that Congress respect the law rather than rule arbitrarily that Utah could not be a state, or could not allow polygamy.252
Coupled with this demand for the rule of law was a demand for shifting political power to Utah, through statehood.253 Ironically, because Utahns realized that statehood would make them sovereign, Utahns wanted to enter the United States to free themselves from dominance by the United States government. These desires for the rule of law and for a relationship with the federal government that would put most political power in the hands of Utahns were so important because they were considered fundamental principles without which there could not be free government.
While historical analysis suggests what the framers of the Utah Constitution meant by “fundamental principles,” there is very little case law available to clarify Section 27, and no scholarly analysis. What case law there is addresses what fundamental principles are more than who should recur to them. In re J.P.,254 dealt with parental rights, and came about after the Utah legislature repealed a statutory provision allowing judicial termination of parental rights only if the parent was “‘unfit or incompetent by reason of conduct or condition seriously detrimental to the child.’”255 In that provision’s place, the legislature enacted a statute which allowed termination of parental rights when the termination would “‘be in the child’s best interest.’”256 The Utah Supreme Court had to decide whether the statutory revision was constitutional.257
The Court struck down the legislature’s statutory revision, holding that “the Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child under Article I, § 7 and § 25, and that the United States Constitution recognizes and protects the same right under the Ninth and Fourteenth Amendments.”258 In discussing the sanctity of the parent-child relationship, the Court said:
We deal here with a fundamental principle. The Constitution of Utah declares, “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” Article I, § 27. The cornerstone of democratic government is the conviction that governments exist at the sufferance of the people, in whom “[a]ll political power is inherent. . . .” Utah Const. Art. I, § 2. A residuum of liberty reposes in the people. That liberty is not limited to the exercise of rights specifically enumerated in either the United States or the Utah Constitution. Thus, Article I, § 25 of the Utah Constitution states, “This enumeration of rights shall not be construed to impair or deny others retained by the people.” The Ninth Amendment to the United States Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” . . .
The rights inherent in family relationships—husband-wife, parent-child, and sibling—are the most obvious examples of rights retained by the people. They are “natural,” “intrinsic,” or “prior” in the sense that our Constitutions presuppose them, as they presuppose the right to own and dispose of property.259
It is not completely clear what the fundamental principle is to which the Court is referring. However, it seems likely that the Court is referring to the sanctity of the parent-child relationship. The rest of the paragraph following the phrase, “We deal here with a fundamental principle,” may simply be bolstering the idea that the importance of this relationship is so obvious that it was not put in writing; it is presupposed by the Constitution. However, it is likely that the passage’s references to democracy and to unenumerated rights are also references to fundamental principles. Ultimately, In re J.P. does not cast much light on Section 27. It is interesting to note, however, that although the Court mentioned Section 27 it did not base its finding of a protected right on Section 27, but on Section 25.
An additional way to analyze Section 27 is to look at sister-state interpretations of such provisions, because similar provisions exist in other state constitutions. Utah’s Section 27 is an almost verbatim copy of article I, section 32 of the Washington Constitution,260 so a look at the interpretation that Washington courts have given Section 32 of their Constitution may be useful.261 Three cases show that Washington courts have taken varied approaches to interpreting Section 32 of their Constitution.
In State ex rel. Mullen v. Howell,262 Washington’s Supreme Court decided that voters could use a referendum to vote on the legislature’s approval of the Eighteenth Amendment to the U.S. Constitution (the prohibition amendment).263 In discussing what the citizens of Washington intended when they originally amended their Constitution to allow referendums, the Court said, “The people, too, have directly charged us with a duty to be mindful of their sovereign rights”;264 the Court then quoted Section 32.265 This dictum indicates that Washington’s Section 32 is a charge to judges to be mindful of the fact that the people are sovereign and that their rights must be respected.
Another approach to Section 32 was advanced in Wheeler School District v. Hawley.266 This case involved a challenge to a state law that set up county committees and a state committee charged with reorganizing school districts. The Supreme Court of Washington ruled that the state had the authority to impose these changes on local governments.267 One challenge to the law urged that it violated Section 32. However, the Court stated that Section 32
is not in any sense an inhibition on legislative power. Clearly, it is but an admonition not only to the legislature but also to the courts to constantly keep in mind the fundamentals of our republican form of government—among others, the cleavage between the legislative and the judicial powers.268
This interpretation focuses on Section 32 as a charge to the legislature and to the courts to respect structural principles of government such as separation of powers.
State v. McCollum269 may also bear on the meaning of Section 32. In McCollum, a defendant appealed the denial of a motion to suppress evidence seized during a search of his house. The Washington Supreme Court found no error in the denial. One dissenter thought the Court’s decision allowed the police to unacceptably encroach on personal liberty. The dissenter observed:
The founding fathers were aware of the ills to which a republican form of government is peculiarly heir. They were mindful of the fact that a free people too soon forget the fathers’ sacrifices which made the heritage of liberty possible and that, through the years as they prosper, the people grow more indifferent to and heedless of the fundamental principles of government and fall an easy prey to the slow and insidious encroachment from within upon natural and constitutional rights.270
Whether the “fundamental principles of government” mentioned here refer to or are the same as the fundamental principles of Section 32 is an open question. The dissent did not quote or cite Section 32. However, the dissent does mention fundamental principles and emphasizes the importance to liberty of remembering such principles. The dissent seems to deal with the same fundamental principles as Section 32. In addition, the dissent’s statement sounds quite similar to Wells’s assessment of Utah’s Section 27.271 Therefore, the McCollum dissent may shed light on what Section 27 means.
The McCollum dissent says that a prosperous people who are heedless of the fundamental principles of government can fall prey to a gradual encroachment on their rights. Fundamental principles, then, are principles of government that people should heed and which function to preserve their rights. Fundamental principles have to do with the interaction between citizens and government, and involve popular participation in government.
These cases show that Washington’s courts have interpreted Section 32 in at least two ways: (1) as a charge to the courts to respect the people’s rights; and (2) as a charge to the legislature and to the courts to respect the structural design of free government. The McCollum dissent, although not explicitly analyzing Section 32, suggested a third interpretation: the people must give frequent consideration to the fundamental principles of government to motivate them to fulfill the responsibilities of citizenship in a democracy. It appears that the meaning of “frequent recurrence to fundamental principles” is not yet settled law in Washington,272 and this limits the usefulness of Washington case law in illuminating what Utah’s Section 27 might mean.
In addition to Washington, a number of other state constitutions have provisions similar to Utah’s Section 27.273 The first such provision was written into Virginia’s Declaration of Rights by George Mason, and that Declaration was used as a model for America’s Declaration of Independence.274 The original Virginia provision read: “[N]o free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”275 The current version of the Virginia provision adds the following language explaining fundamental principles:
[A]nd by the recognition by all citizens that they have duties as well as rights, and that such rights cannot be enjoyed save in a society where law is respected and due process observed.
. . . [F]ree government rests, as does all progress, upon the broadest possible diffusion of knowledge, and . . . the Commonwealth should avail itself of those talents which nature has sown so liberally among its people by assuring the opportunity for their fullest development by an effective system of education throughout the Commonwealth.276
Shortly after Mason wrote the Virginia provision, North Carolina included a similar though shorter version of the provision in its Constitution: “[A] frequent recurrence to fundamental principles is absolutely necessary, to preserve the blessings of liberty.”277 Eight other states have similar provisions in their constitutions.278
This Comment does not subject each of these provisions to detailed analysis.279 However, it is worth noting that Virginia eventually clarified its Constitution to state that people cannot retain their rights without fulfilling their duties as citizens.280 Moreover, Virginia’s inclusion of a statement explaining the need for an educated populace281 makes clear that citizens should not merely show up at the ballot box occasionally but should be educated so they can make informed choices in voting and in fulfilling other duties. The punctuation within the Virginia provision may seem to separate the “frequent recurrence” phrase from the rest of the provision, perhaps implying that the part of the provision on civic duty and the part of the provision on virtue are not fundamental principles.282 However, similar provisions in the Vermont,283 Massachusetts,284 and New Hampshire285 Constitutions state more clearly that popular participation in politics is a fundamental principle. Illinois also clarified its Constitution’s frequent recurrence provision to more clearly state that citizen involvement in politics is necessary if the citizens of Illinois are to enjoy the blessings of liberty.286
It is also important to note that several of these provisions emphasize the importance of various virtues.287 The Virginians who first included such language in their Declaration of Rights understood that structural protections against tyranny—such as federalism, separation of powers, and checks and balances—are parchment barriers that are only as sturdy as the virtue of the citizens.288 In addition, the Vermont, Massachusetts, and New Hampshire provisions specifically explain the importance of choosing civil servants of good character.289 This concept must have resonated strongly with most Utahns, who sought statehood not so individuals could exercise their right to do whatever they want, but so they would be free to continue their religious practices. Most Utahns would also likely have appreciated the warning against immoral politicians, having suffered under such officials during Utah’s territorial status.290 Utah’s proposed Constitutions of 1882 and 1887 included such language on virtue in their charges to frequently recur to fundamental principles.291 However, after New Hampshire’s 1784 Constitution, other states that included “frequent recurrence” language in their constitutions began shortening those clauses dramatically, dropping the language on virtue in the process. In 1895, such language was not included in Utah’s Constitution. However, Section 27 retains the idea that citizens have responsibilities in addition to rights.292
Although studying the text of Section 27, following its history, and looking at sister-state law have led us along a number of strands of analysis, when we step back and look at all of these threads we see that they can be woven together to create a coherent picture. The Utahns who put Section 27 into the Constitution had recently succeeded in essentially declaring independence from the oppression of the federal government in the best fashion they could—by getting permission to become a state rather than a territory. In creating a framework for government they were anxious to list the rights the citizens of the new state would enjoy, but also wanted to remind the people that these rights entail responsibilities. Section 27 is that reminder. Section 27 deals with fundamental principles concerning the relationship between people and government. These principles are fundamental because they are essential to freedom, yet they likely seemed so self-evident to the framers that they did not feel a need to explain those principles in detail. However, these principles are implied by the text and history of the clause and form the basis on which jurisprudence for Section 27 should be built.
While it will always be possible to argue over exactly what constitutes a fundamental principle, it seems likely that one such principle is the idea that people enjoy natural rights which government is obligated to respect.293 All of the proposed Constitutions in Utah’s history explicitly acknowledged natural rights and emphasized their importance.284 During the 1895 Constitutional Convention, the framers also repeatedly discussed the natural rights described in the Declaration of Independence.295 Although the 1895 Constitution substituted the phrase “inherent and inalienable”296 for the word “natural,” the sentiment was the same. Section 27 itself exists to enhance the “security”297 of such rights. Many Utahns detested the idea that rights are created by government and only exist to the extent that government recognizes those rights. Many also felt that during the territorial period the federal government had refused to respect their natural rights to such things as freedom of religion. Utahns’ desire to form their own government so they could be free of these perceived abuses was their primary motivation for seeking statehood.
The natural rights cherished by the framers of Utah’s Constitution included such well-known rights as freedom of speech.298 However, the natural rights mentioned in the Constitution should not be viewed as solely individualistic in nature. While some states were settled by individualistic, enterprising migrants, Utah was settled by a cohesive group with a different philosophy. The Mormons intended to work together to build Zion, the Kingdom of God.299 Consequently, their idea of natural rights was not centered solely on the importance of individual freedom, but rather on both individual and communitarian freedoms.300
A second leading candidate for a fundamental principle is federalism. The legal history of Utah’s Constitution is the story of a long struggle against federal domination. The point of gaining statehood was to enjoy the sovereignty inherent in that status.
It is true that Article I, Section 3 of the Utah Constitution describes the U.S. Constitution as the supreme law of the land.301 However, this statement is a mere truism, acknowledging that within the limited realm of the federal government’s enumerated powers, it is supreme. Such a statement was likely included to counter suggestions that Utah would not be loyal to the Union. The statement does not suggest that Utahns saw their state as less than sovereign. In fact, shortly after statehood, the Utah Supreme Court observed that the state is sovereign.302
Some may question whether a century-old concept of federalism is still viable today. There are a number of reasons why federalism is still important. First, federalism is the primary structural protection against tyranny. A healthy respect for federalism will prevent the sort of tyranny the framers of the Utah Constitution feared most—the dominance of a distant, central power.303 Second, federalism encourages democracy. When leaders are closer to the people, they tend to be more accountable. This allows more voter empowerment, encouraging citizen participation in politics. A third reason for federalism is that it allows different areas of the country to best meet their own unique needs because the people in those areas understand their needs best. Uniform, centrally created rules may not apply as well as locally made rules.
There are other good reasons why federalism is still a viable concept, not the least of which is that the voters have never amended their state and federal constitutions to eliminate federalism.304 It is also worth remembering that under our federal system, some state declarations of rights preceded the U.S. Constitution’s Bill of Rights. In addition, most states based their Declarations of Rights on those of older states rather than on the Bill of Rights. The state declarations of rights were intended to be the primary protection of the people’s rights with the Bill of Rights providing a relatively weak second layer of protection.305
A third fundamental principle is popular sovereignty.306 Throughout the history of Utah’s Constitution, the most commonly stated reason for seeking statehood was Utahns’ desire to rule themselves. Perhaps the most fundamental principle of government is that the people are sovereign; government exists to serve the people, not vice versa.
Popular sovereignty is an empty concept if the people do not actively participate in their democratic system. Democracy—whether representative or direct—is how popular sovereignty is given meaning in practice. Therefore, democracy could be considered an alternative name for this fundamental principle. Democracy allows the people to control their own political destiny. Democracy makes the people the ultimate check on governmental power. If the majority of the citizens do not participate in politics, a minority of the citizens will, by definition, control government. Such a condition is essentially tyranny, and one wonders how long the people’s rights will last when they choose not to guard them. The framers knew better than to encourage voters to sit back and trust the government to take care of them. Because government is ultimately the people’s responsibility, it is vital that the people exercise their sovereignty by participating in democratic practices.
Section 27 imposes a general responsibility on all Utahns to think about the political philosophy underlying the state’s government, to see why personal participation in government is vital. The importance of personal participation cannot be overemphasized. The quality of public participation in politics today is poor. Voter turnout is low.307 Political discourse often revolves around sound bites and attack ads.308 States increasingly seem like mere subdivisions of a distant government in Washington, D.C.—a government many people feel powerless to affect.309 Section 27 reminds Utahns why these conditions are dangerous and wrong. It encourages them to bring political power back to the people of the state and to actually exercise it. Section 27 is essentially a reminder to reflect back on the civics lessons of high school and fulfill the responsibilities of citizenship.310
However, Section 27 also has more specific applications, which are particularly relevant to members of the legal profession. Early in this Comment, I discussed state constitutional law interpretation. The Utah Supreme Court has described a number of possible approaches to constitutional interpretation when a provision at issue is mirrored by a federal provision.311 These approaches range from the primacy approach on one end, to the lockstep approach on the other.312 Section 27 militates against any consideration of the lockstep approach and strongly suggests that courts should adopt the primacy approach.
Section 27 reflects the idea that states are largely sovereign and are the primary protectors of people’s rights. Utahns sought statehood to create their own laws, free of federal interference. The framers did not expect to rely on federal courts for the protection of their rights,313 but on state courts interpreting the greater protections offered by state constitutions. In short, the framers intended that Utah courts would interpret Utah’s laws. Utah courts should no more turn to federal courts for an explanation of Utah constitutional law than they would turn to the courts of any other state or foreign nation. If the meaning of a state provision is unclear and if there is an analogous federal provision, a state court may find it useful to consider the reasoning used by a federal court that interpreted the similar federal provision. However, federal decisions are not in any way controlling, and a proper understanding of the spirit of the Utah Constitution makes it clear that state courts should first interpret Utah constitutional law by reference to the Utah Constitution. State courts should give federal interpretations of similar provisions no more weight than the state court would give any sister-state’s law.314 To do otherwise would be to abdicate the role of the court in interpreting Utah law.
Section 27 also suggests a general approach to judicial interpretation of the Constitution that militates against judicial activism. It is a fundamental principle that the people are sovereign and that they yield sovereignty to government officials only so those officials can represent the people’s interests. The people have the right to replace those officials when the officials do not meet the people’s expectations. Judges should keep in mind that they are not elected representatives of the people. The democratic spirit of Section 27 strongly suggests that courts should carefully avoid filling the interstices of the law with judge-made policy.315 The spirit of the Utah Constitution suggests that neither fed nor fad should control the approach Utah courts take to constitutional interpretation. Rather, judges should make principled decisions that support the fundamental principles of Section 27.
Just as judges should be mindful of fundamental principles when deciding cases, Section 27 requires other Utahns to consider fundamental principles when suggesting legislative or policy changes. All Utahns should remember that fundamental principles are essential to freedom. Before advocating any particular political change, an individual should think about whether the change’s effect on fundamental principles is positive or negative.
For example, Section 27 contradicts suggestions that Utah courts provide no greater protections for people accused of crimes than federal courts provide.316 Such suggestions, if implemented, would eviscerate state sovereignty and run contrary to the fundamental principles on which the Utah Constitution is based. While such suggestions may be well intended, history shows that freedom is trampled not just by people with bad intentions, but by overzealous individuals with good intentions who are willing to sweep aside important protections simply to get at what they view as one pressing problem. Section 27 calls for limiting both ill-intended tyrants and well-meaning zealots who have lost sight of the big picture.
Section 27 can also be used to bolster Section 25, the unenumerated rights provision. Section 27 makes it clear that the state must take the duty to protect Utahns’ rights seriously. State courts should be willing to use Section 25 to protect the rights of Utahns—such as the family rights valued by the framers of the Utah Constitution. In re J.P.317 provides a good model of how this can be done.318
In addition, other applications of Section 27 are possible. For example, one could argue that Section 27, rooted in an effort to increase the power of Utah voters, supports using voter initiatives. This argument could overcome challenges that initiatives are not part of a republican form of government.319 Because education is so important to democracy, Section 27 could also be used to bolster arguments that the Constitution requires strong support for public education of both school-age children and adults. Additionally, Section 27 may give teeth to the Constitution’s treason provision, or greater meaning to the Constitution’s militia provision. Since Section 27 supports the idea that power should be close to the people, Section 27 might also be used by municipalities to argue in favor of greater autonomy for local governments.
Members of the legal profession in Utah should give consideration to these and other means of bringing Section 27 to life in Utah jurisprudence. More fundamentally, members of the legal profession should—like all citizens—give frequent consideration to whether their daily actions reflect the civic virtue necessary to guard the freedom of all Utahns.
As Utah enters its second century, members of the legal profession should give renewed attention to the central role of the Utah Constitution in creating a framework for free government and in protecting rights. Specifically, lawyers, jurists, scholars, and citizens should give greater heed to the call of Article I, Section 27 of the Constitution. Section 27 of the Utah Constitution essentially says that Utahns should not forget the civics lessons of high school. Freedom depends on structures of government that prevent the concentration of power in the hands of the few. Freedom also depends on a populace which actively involves itself in governance in a variety of ways: by making its wishes known to government officials, by demanding that government officials respect those wishes, and by respecting the constitutional protections that guard everyone’s rights. It may seem trite to declare in a constitution that freedom is not free and to call for popular political participation. But, given chronic voter apathy and the resultant shift of political power from the many to the few, the call of Section 27 should sound loudly at the beginning of Utah’s second century. Section 27 reminds Utahns of why their participation in government is so important. Section 27 can be used to support such fundamental principles as natural rights, federalism, and democratic political processes. The provision makes a strong argument that Utah courts should adopt the primacy approach to state constitutional law interpretation. Also, in conjunction with the unenumerated rights provision of Article I, Section 25, Section 27 supports the idea that Utah courts should take unenumerated rights seriously. In addition, Section 27 suggests that Utahns should not limit their rights to the extent the federal courts think necessary. Frequent recurrence to fundamental principles will ensure that the structures of freedom remain intact and that citizens use them appropriately to enhance and protect the freedoms of every Utahn.
1. Stylistic conventions decree that authors capitalize “constitution” when referring to the United States Constitution (as in, “the Constitution”) but not when referring to a state Constitution unless an author is using the full name of the state Constitution. Stylistic conventions also decree that authors capitalize “court” when referring to the United States Supreme Court (as in, “the Court”) but not when referring to state courts unless an author is using the full name of the court. Nevertheless, in this Comment I capitalize “constitution” and “court” when referring to a state’s highest law or to its highest court, just as I do when referring to the highest law or court of the United States. I recognize that the authors of the Bluebook apparently feel that the federal government should receive more respect than do state governments. However, the political philosophy underlying the Constitution of Utah and the Constitution of the United States is incompatible with such a view. In our federal system, each one of the fifty states in the Union is supposed to be both largely sovereign and more powerful than the federal government. I find it unacceptable to denigrate Utah by accepting stylistic forms which suggest that its Constitution and highest court are entitled to less respect than the federal Constitution and high court.
2. Utah Const. art. 1, § 27.
3. A.E. Dick Howard, Introduction: A Frequent Recurrence to Fundamental Principles, in Developments in State Constitutional Law: the Williamsburg Conference xi, xi (Bradley D. McGraw ed., 1985).
4. Developments in State Constitutional Law: the Williamsburg Conference, supra note 3, is the published proceedings of the 1985 conference.
5. Williamsburg’s New Federalists, The Economist, Nov. 26, 1994, at 32.
6. 716 P.2d 803 (Utah 1986).
7. Id. at 805.
8. Id. at 805-06 (citations omitted) (citing State v. Jewett, 500 A.2d 233 (Vt. 1985)). The Court’s footnote at the end of this passage cites useful scholarly commentary on state constitutional law: “See generally Linde, E. Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165 (1984); Brennen [sic], State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); Note, The New Federalism, Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297 (1977).” Id. at 806 n.2.
9. 500 A.2d 233 (Vt. 1985).
10. Earl, 716 P.2d at 806.
11. Jewett, 500 A.2d at 234.
12. Id.
13. Id.
14. Id.
15. Id. (quoting Robert Welsh & Ronald K.L. Collins, Taking State Constitutions Seriously, The Center Mag. Sept.-Oct. 1981 at 6, 12) (additional citation omitted). Recall that the Utah Supreme Court also subscribes to this view and to the rest of the Jewett commentary on state constitutional law. Earl, 716 P.2d at 806.
16. Jewett, 500 A.2d at 234-35.
17. Id. at 235.
18. Id. (paraphrasing Hans A. Linde, E. Pluribus—Constitutional Theory and State Courts, in Developments in State Constitutional Law 279 (Bradley D. McGraw ed., 1985)).
19. Id.
20. Id.
21. Id.
22. Id.
23. Id. at 236.
24. Id.
25. Id.
26. Id. at 237 (citing Philip Bobbitt, Constitutional Fate-theory of the Constitution 25 (1982)).
27. Id.
28. Id.
29. Id.
30. Id. The historical argument examines the controversies, attitudes, and decisions of the period during which the constitutional provision at issue was proposed and ratified. Bobbitt, supra note 26 at 7. The textual argument considers the meaning of the words of the provision. Id. Structural arguments are “claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments.” Id. The prudential argument advances a particular doctrine according to the practical wisdom of the courts. Id. The doctrinal argument “asserts principles derived from precedent.” Id. Finally, the ethical argument “relies on a characterization of American institutions and the role within them of the American people in attempting to legitimize judicial review of the constitutional provision.” Id. at 94.
31. Jewett, 500 A.2d at 237.
32. Id. at 237-38 (citing Michigan v. Long, 463 U.S. 1032 (1983)).
33. Id. at 238 (quoting Long, 463 U.S. at 1040-41).
34. 870 P.2d 916 (Utah 1993).
35. Id. at 917.
36. Id. at 921 n.6 (citations omitted).
37. Id. at 921 (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)).
38. Id. Although the Court emphasized history in Society of Separationists, history alone is not dispositive of the meaning of a constitutional provision. In American Fork City v. Crosgrove, 701 P.2d 1069, 1070-73 (Utah 1985) (plurality opinion), dealing with whether submission to a breathalyzer test under threat of driver’s license suspension violates the privilege against self-incrimination, the Utah Supreme Court considered historical arguments. However, in holding that the defendant’s rights were not violated, the Court stated that it must “also deal with underlying policy considerations that militate for or against an expansive construction.” Id. at 1073 (plurality opinion). For a criticism of the view that policy considerations should affect judicial decision making, see Paul G. Cassell, The Mysterious Creation of Search and Seizure Exclusionary Rules Under State Constitutions: The Utah Example, 1993 Utah L. Rev. 751, 777 n.170 (arguing Justice Durham’s view is dangerous to fundamental rights).
39. Society of Separationists, 870 P.2d at 921-29. This part of the opinion stood apart from and before the specific analysis of Article I, Section 4. The analysis later referred back to this history almost as if the constitutional implications of the historical account were obvious. For example, the Court used less than two pages to describe the “thematic threads” it found running through that history. See id. at 934-36.
40. I have used Society of Separationists as a model for this Comment’s approach to determining the meaning of Article I, Section 27. Accordingly, I have placed a legal history of the Utah Constitution before my specific analysis of Section 27. The legal history in Section III of this Comment is detailed enough both for use in analyzing an area as potentially broad as “fundamental principles” and for future use by practitioners, judges, and scholars in analyzing other areas of Utah constitutional law.
The analysis in Section IV of this Comment analyzes the somewhat ambiguous text of Section 27 of the Utah Constitution largely by searching the legal history of the Utah Constitution, and specifically of Section 27, for common threads that shed light on Section 27. I also look at sister-state law and at how policy arguments might bear on Section 27. Like the Court in Society of Separationists, I will present the material most relevant to interpreting Section 27 and then draw conclusions from that material, rather than advancing an interpretation and marshalling whatever material may support that interpretation.
41. Utah Const. art. I, § 4.
42. Society of Separationists, 870 P.2d at 931-32.
43. Id. at 932.
44. Id.
45. Id. at 933.
46. Id. None of the Washington cases examined the issue of public funds for religious purposes in noneducational settings. Id.
47. Id. at 934.
48. See id. at 935 (noting that “[O]ur survey of Utah’s history leads to some tentative conclusions” about state Constitution).
49. Id. at 936, 940.
50. Id. at 940.
51. Id.
52. Id.
53. Christine M. Durham, Employing the Utah Constitution in the Utah Courts, Utah Bar J., Nov. 1989, at 25, 26. These approaches were also described by Justice Robert F. Utter of the Washington Supreme Court in Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Tex. L. Rev. 1025, 1027-30 (1985).
54. Durham, supra note 53, at 26. The primacy approach is favored by Hans Linde, a former justice of the Oregon Supreme Court, who has written much about the primacy approach. Id. (citing Hans A. Linde, E. Pluribus—Constitutional Theory and State Courts, in Developments in State Constitutional Law 279, 282 (Bradley D. McGraw ed., 1985)); see also Hans A. Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev. 379, 379 (1980) (suggesting that state courts apply primacy approach).
55. Durham, supra note 53, at 26.
56. Id.
57. Id.
58. Id. (quoting State v. Jackson, 672 P.2d 255, 260 (Mont. 1983) (quoting State v. Armstrong, 552 P.2d 616, 619 (Mont. 1976))).
59. Id. at 27.
60. Id.
61. Id. at 26.
62. 872 P.2d 999 (Utah 1994).
63. Id. at 1000.
64. Id. at 1005.
65. Id.
66. Id. For additional scholarly comment on state constitutional law analysis, see Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims and Defenses ¶ 1.04 (1995) (discussing sequence for deciding parallel state and federal claims). See also Kenneth R. Wallentine, Heeding the Call: Search and Seizure Jurisprudence Under the Utah Constitution, Article I, Section 14, 17 J. Contemp. L. 267, 269-70 (1991) (analyzing Utah Constitution’s clause on search and seizure); Milo S. Marsden, Comment, The Utah Supreme Court and the Utah Constitution, 1986 Utah L. Rev. 319, 319-21.
67. West, P.2d at 1006.
68. Id. at 1007.
69. Id. at 1007 n.11. Choosing and applying a methodological approach is not always easy. In State v. Anderson, 910 P.2d 1229 (Utah 1996) (plurality opinion), the Court could not agree on what approach it was actually using. See Id. at 1232-38, 1234 n.5, 1239 (Zimmerman, C.J., concurring in the result) (interpreting Utah’s search and seizure provision, which is textually similar to U.S. Constitution’s Fourth Amendment, and finding it applies to vehicle searches). Justice Stewart observed:
If this Court were to view its constitutional duty to construe the provisions in the Utah Declaration of Rights in the exact same manner as the United States Supreme Court construes analogous provisions in the Bill of Rights, we would violate the spirit and intended effect of Utah constitutional law and policy as established by the framers of the Utah Constitution.
Id. at 1240 (Stewart, J., concurring in the result). However, not only was there disagreement between the justices over the interpretation of Utah’s search and seizure provision (Article 1, Section 14), but there was also pointed disagreement over whether the lead opinion took a lockstep approach or some other approach. See id. at 1235, 1239 (Zimmerman, C.J., concurring in the result); id. at 1241 (Durham, J., concurring and dissenting).
70. Sections III and IV of this Comment are essentially part of the analysis of Section 27 of the Utah Constitution. However, I have separated the legal history of Utah’s Constitution from the specific discussion of Section 27 for two reasons. First, like the Court in Society of Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993), I have found it analytically useful to place this history before and apart from the specific analysis of the text in question. This is because the meaning of Section 27 is not plain and analyzing the text of that section by reference to the Utah Constitution’s legal history is necessary. Second, while I recognize that Section III’s legal history may be more detailed than necessary for an analysis of Section 27, of the Utah Constitution, I believe that including a general summary of the legal history of Utah’s Constitution will not only make for good analysis of Section 27, but will also be useful to practitioners, judges, and scholars as a reference for future use in other contexts. It is my impression that the legal history of the Utah Constitution has been somewhat neglected.
71. See Society of Separationists, 870 P.2d at 921 (noting that Mormon pioneers sought refuge in Mexican territory to escape religious persecution).
72. Id.
73. Eugene E. Campbell, Governmental Beginnings, in Utah’s History 153, 153-56 (Richard D. Poll et al. eds., 1989). Church leaders laid out property boundaries, decided how church members would utilize natural resources, settled legal disputes, and eventually created a communal economic system in some areas. Edwin Brown Firmage & Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830-1900 (1988) 223-24, 294-96, 315-16, 263. Two new histories were published as this Comment was being prepared for publication. See Thomas G. Alexander, Utah, the Right Place: the Official Centennial History (1995); Ken Verdoia & Richard Firmage, Utah: the Struggle for Statehood (1996). A good history of the Utah Constitution was published after this Comment went to press. See Jean Bickmore White, Charter for Statehood: The Story of Utah’s Constitution (1996); see also Jean Bickmore White, The Utah State Constitution: A Reference Guide (1998) (providing cursory analysis of Section 27, and stating—somewhat incorrectly—that there has been no case law on Section 27). These histories can lead a researcher to most other relevant histories.
74. “Deseret” is a Book of Mormon term meaning “honeybee,” and symbolizing industry. The Book of Mormon, Ether 2:3. The Book of Mormon, translated from ancient records by the prophet Joseph Smith, is a book of scripture used by The Church of Jesus Christ of Latter-day Saints. The common term for Latter-day Saints, “Mormons,” derives from their use of the book.
75. Marvin S. Hiu, The Rise of the Mormon Kingdom of God, in Utah’s History, supra note 73, at 97, 104 & n.1.
76. John J. Flynn, Federalism and Viable State Government—The History of Utah’s Constitution, 1966 Utah L. Rev. 311, 314-15 (1966); Dale L. Morgan, The State of Deseret, 8 Utah Hist. Q. 67, 68 (1940), reprinted in Dale L. Morgan, the State of Deseret (1987).
77. See Morgan, supra note 76, at 68 (recognizing that Mormon ruling authority was both political and ecclesiastical). This was not, or course, a First Amendment problem since the framers of the United States Constitution only intended the Establishment Clause to limit Congress, not states or private individuals, and the First Amendment has never said anything about a wall of separation between church and state (but has said something about the free exercise of religion).
78. The Great Basin is the geographic province in which the Salt Lake Valley is located. Edward Abbey, The Great American Desert, in The Norton Book of Nature Writing 685, 687 (Robert Finch & John Elder eds., 1990).
79. Peter Crawley, The Constitution of the State of Deseret, 29 B.Y.U. Stud. 7, 9-14 (1987).
80. Id. at 9.
81. Bernhisel became Utah’s first territorial delegate (nonvoting) to Congress. Campbell, supra note 73, at 161. As with his successors for the next forty years, Bernhisel was “set apart” by Mormon leaders. Id. Setting apart is a Mormon religious ceremony in which religious leaders lay hands on the head of a person and authorize that person to perform a particular calling for the church. The Church of Jesus Christ of Latter-day Saints, Gospel Principles 358 (1985).
82. Morgan, supra note 76, at 115-16.
83. Id.
84. Crawley, supra note 79, at 13-14; Morgan, supra note 76, at 114-116.
85. Crawley, supra note 79, at 17. Many scholars have assumed that because there is a record of a constitutional convention meeting, the Constitution of 1849 was in fact framed during that convention. See Martin B. Hickman, Utah Constitutional Law 41 (1954) (asserting that Constitution of 1849 was written at convention); Flynn, supra note 76, at 315, 318 (assuming, in discussion of 1849 Constitution, that convention occurred); see also Society of Separationists, 870 P.2d at 922 n.10 (discussing formation of convention and adoption of Constitution during convention). Careful scholarship by Brigham Young University professor Peter Crawley found that the convention may not have been held and that the records of the convention may have been fabricated. Crawley, supra note 79, at 13-15. Crawley concluded that Mormon leaders felt there was not enough time to call and hold a convention if a constitution was to be sent to Congress that year. Id. at 14. Instead of holding a convention, they drew up the Constitution of 1849 rapidly and invented records of a convention, knowing that Congress would expect the Constitution to have been formed at a convention. Id.
86. The proposed state of Deseret took in almost all of what is presently Utah, parts of Oregon, Idaho, Wyoming, Colorado, and New Mexico, most of Arizona, and a large part of eastern California, with the western border stretching to the southern California coast. See Morgan, supra note 76, at 64 (showing map of proposed state of Deseret).
87. H.R. Misc. Doc. No. 18, 31st Cong., 1st Sess. 2 (1849). This document includes a Memorial of the Members of the Legislative Council of the Provisional Government of Deseret, Praying for Admission into the Union as a State or for a Territorial Government [hereinafter Memorial (1849)]. The 1849 Constitution is reprinted in Morgan, supra note 76, at 156-63, and in Dale L. Morgan, The State of Deseret 121-27 (1987).
88. Deseret Const. of 1849 , pmbl. (proposed Constitution of 1849).
89. Id. arts. I-III, V.
90. Id. art. II.
91. Id. art. II.
92. Id. art. III, §§ 3, 11, 1, 15.
93. Id. art. IV, §§ 2-3.
94. See generally The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America (Francis Newton Thorpe ed., 1909) [hereinafter Federal and State Constitutions] (setting out both current and previous texts of different state constitutions).
95. Deseret Const. of 1849, art. VIII, §§ 1-3 (proposed Constitution of 1849).
96. Id. art. VIII, § 3.
97. Id. art. VIII, § 5.
98. Id.
99. Id. art. VIII, § 4.
100. Id. art. VIII, § 17. Some scholars believe that the 1849 Constitution resembled the 1818 Illinois Constitution because the Mormons once lived in Illinois and were thus familiar with its Constitution. See, e.g., Hickman, supra note 85, at 42-43 (noting that 1849 Constitution was similar to Illinois Constitution “since most of the experience of Mormon leaders with state and local government was gained in Illinois”); see also Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 922 (Utah 1993) (noting that “first constitution contained features of the Illinois Constitution of 1818”). However, a comparison of the two constitutions shows little word-for-word borrowing. There are similarities between the two constitutions, but there are also similarities between the 1849 Constitution of the State of Deseret and those of a number of other states. The 1849 Constitution of the State of Deseret has much shorter legislative and judiciary sections than does the Illinois Constitution. Compare Deseret Const. of 1849, arts. II & IV (proposed Constitution of 1849) with Ill. Const. of 1818, arts. II & IV, reprinted in Federal and State Constitutions, supra note 94, at 972-85. The 1849 Constitution’s executive section also differs in its description of the role of the Lieutenant Governor. Compare Deseret Const. of 1849, art. III, §§ 1, 16 (proposed Constitution of 1849) with Ill. Const. of 1818, art. III, §§ 4, 18. In addition, the 1849 Constitution’s Declaration of Rights is shorter than the Illinois Constitution’s Declaration of Rights. Compare Deseret Const. of 1849, art. VIII (proposed Constitution of 1849) with Ill. Const of 1818, art. VIII.
Crawley suggests that the 1849 Constitution of the State of Deseret was modeled after Iowa’s Constitution of 1846. Crawley, supra note 79, at 15. The Iowa Constitution, however, was also organized differently from the 1849 Constitution of the State of Deseret. Compare Iowa Const. of 1846, reprinted in Federal and State Constitutions, supra note 94, at 1123-36 with Deseret Const. of 1849 (proposed Constitution of 1849). Also, the Iowa Constitution, like the Illinois Constitution, was longer than the 1849 Constitution of the State of Deseret. Id. In short, while there are numerous similarities between the Illinois and Iowa Constitutions and the Deseret Constitution, there are also differences.
This is not to suggest that the framers of the 1849 Constitution of the State of Deseret did not borrow from these or other constitutions. However, it is not entirely clear that they were primarily influenced by either the Illinois or Iowa Constitutions. The Utah framers put their own thought into what they wanted their own Constitution to say.
101. Campbell, supra note 73, at 157. The South was concerned about losing political power in Congress if additional free states were admitted to the Union. Id. Although Utah was admitted with the option of deciding whether to be a slave territory, it was widely known that neither Utah nor New Mexico would opt to embrace slavery. Id.
102. Id. at 158-60. Congress named Utah after the Ute Indians; the settlers preferred Deseret. Morgan, supra note 76, at 150-51. The settlers also preferred their own leaders to some of the territorial leaders Congress sent to Utah, and a ghost government of Deseret continued until 1870 despite the existence of the territorial government. Id. at 132-49.
103. R. Michael Otto, Comment, “Wait ’Til Your Mothers Get Home”: Assessing the Rights of Polygamists as Custodial and Adoptive Parents, 1991 Utah L. Rev. 881, 888.
104. Id. at 888 n.31 (Citing Edwin B. Firmage & Richard Mangrum, Zion in the Courts 131-32 (1988); Orma Linford, The Mormons and the Law: The Polygamy Cases, Part I, 9 Utah L. Rev. 308, 311-13 (1964)).
105. Otto, supra note 103, at 888-95.
106. Morgan, supra note 76, at 133 & n.154.
107. Id. at 133. The Constitution was printed in the Deseret News. Constitution of the State of Deseret, Deseret News, Apr. 2, 1856, at 30. It was later printed as S. Misc. Doc. No. 240, 35th Cong., 1st Sess. 3-10 (1858); this document included a Letter of the Delegate Of the Territory of Utah in Congress, Enclosing the Memorial of Delegates of The Convention Which Assembled in Great Salt Lake City, and Adopted a Constitution with a View to the Admission of Utah into the Union as a State, Together with a Copy of That Constitution. Id. at 1-2 [hereinafter Memorial (1856)]. The 1856 Constitution was printed again as H.R. Misc. Doc. No. 10, 36th Cong., 2d Sess. 4-11 (1860); this document included a Memorial of a Convention of the People of the Territory of Utah, Accompanied By a State Constitution, Asking Admission into the Union. Id. at 1-3.
108. See Morgan, supra note 76, at 133 (“Very few changes were made, and these were mostly taken in cognizance of a functioning civil government which had not existed in such detail in 1849.”). Compare Deseret Const. of 1856 (proposed Constitution of 1856) with Deseret Const. of 1849 (proposed Constitution of 1849).
109. Deseret Const. of 1856, art. II (proposed Constitution of 1856). Hickman mistakenly wrote that the Declaration was not moved to the front until the 1862 Constitution. Hickman, supra note 85, at 47.
110. Memorial (1856), supra note 107, at 2.
111. Id.
112. Id. at 1.
113. Id. at 2.
114. Id.
115. Or “Utonians,” as they were also known. E-mail from Ken Verdoia, Senior Producer, Utah: The Struggle for Statehood (documentary produced by KUED TV) (Feb. 14, 1996) (on file with author).
116. Edward L. Lyman, Political Deliverance: The Mormon Quest for Utah Statehood 8-9 (1986).
117. Flynn noted that the 1856 Constitution was not presented to Congress. Flynn, supra note 76, at 316. It appears that Utah leaders carried the Constitution to Washington but realized the futility of submitting it. However, the 1856 Constitution was submitted in 1858 and again in 1860.
118. The Utah War began after rumors spread through Washington, D.C., that Utah was in rebellion. Orson F. Whitney, Popular History of Utah 118 (1916). For example, an appointee to the territorial Supreme Court, William Drummond, stirred up sentiment against Utahns by writing the U.S. Attorney General with allegations about Mormons killing territorial leaders and burning territorial records. Id. at 108-18. These were lies. Id. at 118-20. (Drummond had difficulty appreciating Utah’s culture; he alienated a good number of Utahns when he left his wife in Illinois and came to Utah with a “harlot,” who sometimes sat beside him on the bench while he harangued Utah legislators for their supposed ignorance. Id.)
In 1858, on hearing the propaganda of Drummond and others, President Buchanan ordered the Army to escort a new governor, Alfred Cumming, to Utah to replace Governor Young and deal with the supposed rebellion. Campbell, supra note 73, at 166. On learning of the approaching troops, Brigham Young, not yet officially replaced as governor, promptly called out the militia. Id. at 166-70. Under the command of General Daniel Wells, Utah military units burned supply wagons and delayed the invading troops, forcing them to winter outside of Utah. Id. at 168. When Major Lot Smith intercepted one supply train, its captain implored, “For God’s sake, don’t burn the trains!” Major Smith replied: “It’s for His sake that I’m going to burn them!” Id. at 145. By spring, Americans began to question Buchanan’s Utah policy, and the Utah War ended as Cumming was escorted into Salt Lake City by the Utah militia to see that the Mormons were not in rebellion against lawful authority. Id. at 169-70.
119. The letter referred to persecution beginning in 1833 when the military of Jackson County, Missouri, under the command of the Lieutenant Governor of Missouri,
did expel our people from their homes, many of whom were murdered by them, their property destroyed, and their families driven and scattered; others were whipped, tarred and feathered, and otherwise barbarously treated . . . [in 1838 the Governor of Missouri] did order out an overwhelming military force, march them into our settlements and butcher many, without regard to either age, sex, or condition; robbed us of our property, imprisoned many of our brethren without process, ravished our wives and daughters, and drove us off, under a brutal order of extermination, from land we had purchased from the General Government [the United States government]; . . . [in 1845 the State of Illinois] did require our people, under pain of extermination by an infuriated mob, to leave the State, pledging themselves to protect us in doing so, yet suffered our people to be murdered and our houses burned with impunity; . . . when we were fleeing into the wilderness, a call was made by the General Government on us for five hundred of our most efficient men [to serve in the Mexican War]; and whereas, as soon as our most efficient men had left in the service of our country, the State of Illinois marched a formidable army to Nauvoo . . . forcing the families that were left destitute to the desolate prairies, a prey to hunger, cold, and disease; . . . we were compelled to make a temporary location for winter quarters on the west bank of the Missouri river . . . to which the Government of the United States sent their officers, and notified us to vacate our houses notwithstanding many of those who occupied them were the families of those very men engaged in the service of the United States in the war with Mexico, and who themselves were discharged two thousand miles from their families, in an enemy’s country . . . .
. . .
. . . [W]e regard the movements of the present Administration, in sending their armed legions into our midst, as a renewal of the persecution, butcheries, and horrid scenes of destruction with which their eyes were gloated while we were in their midst. . . .
. . .
. . . [W]e tender to his Excellency Governor Young our utmost exertions, our lives, and our fortunes, for the defense of our rights; . . . we regard no sacrifice too great, and are ready, if necessary, to sacrifice our homes, but we will not see them inherited by our enemies.
. . .
. . . [W]e deprecate and deeply deplore the causeless, but overwhelming prejudice which denied even the presentation of our constitution and application for admission into the Union as a State; and also, the subsequent attempts of the Government to crush the people of this Territory by depriving them of every vestige of constitutional right and liberty.
Letter of W.W. Jones et al., to President and Congress of United States (Jan. 16, 1858), in Cong. Globe, 35th Cong., 1st Sess. 1577 (1858).
120. Morgan, supra note 76, at 137.
121. Governor Dawson did not stay in Utah very long. A month after his arrival he left in disgrace after “making an indecent proposal to a respectable woman.” Whitney, supra note 118, at 182.
122. Hickman, supra note 85, at 46. Lyman wrote that the convention was held in 1861; his date may be a typographical error. Lyman, supra note 116, at 10.
123. Utahns may also have thought President Lincoln would be more supportive of their cause than some Republicans. In 1860, when asked about what to do with the Mormons, Lincoln stated: “I propose to let them alone.” Whitney, supra note 118, at 180. He likened the Mormons to a hemlock log on a freshly cleared field: “[T]oo heavy to move, too knotty to split, and too wet to burn. . . . [Just] plow around it.” Id.
124. H.R. Misc. Doc. No. 78, 37th Cong., 2d Sess. 4-11 (1862). This document included Memorials of the Legislature and Constitutional Convention of Utah Territory, Praying the Admission of Said Territory into the Union as the State of Deseret. Id. at 1-3 [hereinafter Memorial (1862)).
125. Hickman, supra note 85, at 46.
Memorial (1862), supra note 124, at 2-3.
127. Id. at 2.
128. H.R. Misc. Doc. No. 26, 40th Cong., 1st Sess. 2-8 (1867). This document included a Memorial of the Legislative Assembly of the Proposed State, for the Admission of the State of Deseret into The Union, and Accompanying Papers. Id. at 1 [hereinafter Memorial (1867)]. Neither Flynn nor Lyman mentioned this Constitution in their list of proposed constitutions. White does not include this Constitution in her list of proposed constitutions, but she observes that Utah’s first governor, Heber Wells, counted the Constitution of 1867. White, supra note 73, at 15-16 and 130 n.8. It is true that the 1867 Constitution of Deseret was created by the legislative assembly rather than by a constitutional convention. However, the 1849 Constitution of Deseret, which is widely considered a distinct document in the legal history of the Utah Constitution, may not have been created at a convention either. Moreover, while the 1867 Constitution, was similar to the 1862 Constitution, it was also different. In fact, it was as different from the 1862 Constitution as the 1862 Constitution was from the 1856 Constitution. Therefore, I have included it in this Utah constitutional history.
129. Deseret Const. of 1867, arts. I, IV, VII (proposed Constitution of 1867).
130. Id. art. IV, § 7.
131. Id. art. VII, § 1.
132. Memorial (1867), supra note 128, at 1.
133. Id.
134. See Whitney, supra note 118, at 235-42.
135. Flynn, supra note 76, at 317. This convention convened after the legislature overrode the governor’s veto. Hickman, supra note 85, at 48-49.
136. “Gentile” is a term that Mormons have adopted to apply to nonmembers of the Mormon faith. Orson Scott Card, Saintspeak: The Mormon Dictionary 19 (1981); Stanley S. Ivins, A Constitution for Utah, 25 Utah Hist. Q. 95, 97 (1957). Use of “gentile” in this way becomes problematic when attaching it to a nonmember Jew.
137. See Ivins, supra note 136, at 97.
138. H.R. Misc. Doc. No. 165, 42d Cong., 2d Sess., 5-21 (1872). This document was accompanied by the Memorial of the Convention to Frame a Constitution for the Admission of Utah into the Union as A State. Id. at 1- 4 [hereinafter Memorial (1872)]. The 1872 Constitution was also published by the Deseret News Book and Job Establishment that same year (in this version the memorial was entitled Constitution of the State of Deseret, with Accompanying Memorial to Congress). Some scholars have noted that copies of the Nevada Constitution of 1864 were distributed to the delegates; some have in fact concluded that the 1872 Constitution of the State of Deseret was modeled after the Nevada Constitution, a Constitution Nevada used to successfully seek statehood. Hickman, supra note 85, at 49; Flynn, supra note 76, at 317. The 1872 Constitution of Deseret’s Declaration of Rights is very similar to the Nevada Constitution’s Declaration of Rights. Compare Deseret Const. of 1872 (proposed Constitution of 1872) with Nev. Const. of 1864. However, much of the rest of the Deseret Constitution differs. Id. In general, the Nevada Constitution of 1864 is longer and more detailed. Id. Once again, it appears that the framers of the Constitution of Deseret chose for themselves what to put in their Constitution.
139. Deseret Const. of 1872, art. VII (proposed Constitution of 1872).
140. Id. art. VIII.
141. Id. art. IX.
142. Id. art. X.
143. Id. art. XI.
144. Id. art. XIII.
145. Id. art. IV. Representatives could be chosen through a method of cumulative voting that allowed voters to cast as many votes as there were candidates, either all for one candidate or divided among candidates.
146. Id. art. V.
147. Id.
148. Id. art. VI.
149. Id. art. I, § 2. This provision is also in the Nevada Constitution. Nev. Const. of 1864, art. I, § 2.
150. Deseret Const. of 1872, art. I, § 4 (proposed Constitution of 1872).
151. Id. art. II. The legislature had already extended suffrage to women in 1870. Whitney, supra note 118, at 249. Although anti-Mormons complained that Mormon women were mistreated by polygamy, many of those same critics (including the new territorial governor) actually opposed this extension of suffrage. Id. They viewed it as a ploy to give Mormon men more political power by allowing them a second vote through their supposedly obedient wives. See Id. (noting that gentile Utahns were already politically outnumbered).
152. Memorial (1872), supra note 138, at 2-4.
153. Id. at 18-19.
154. Flynn, supra note 76, at 318.
155. The Godbeites were named after William Godbe, a local businessman who was excommunicated from the Mormon Church in 1869. Dean L. May, Towards a Dependent Commonwealth, in Utah’s History, supra note 73, at 217, 217-18.
156. Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 925 (Utah 1993) (citing Gustive O. Larson, Government, Politics, and Conflict, in Utah’s History supra note 73, at 243, 248). A major concern of the Godbeites was the formation of the Zion’s Cooperative Mercantile Institution (“ZCMI”). May, supra note 155, at 217-18. ZCMI brought a number of Mormon businesses together to increase their buying power and to lower prices for consumers; gentile businessmen initially worried about the effect this would have on their own businesses. Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 925 (Utah 1993); May, supra note 155, at 217-18.
157. Society of Separationists, 870 P.2d at 925. 58
158. Id.
159. Gustave O. Larson, Government, Politics, and Conflict, in Utah’s History, supra note 73, at 243, 248.
160. Id.
161. Dean L. May, Economic Beginnings, in Utah’s History, supra note 73, at 193-94, 204. Brigham Young thought mining would cause Mormons to become greedy and worldly and would bring an undesirable element into Utah.
162. See Society of Separationists, 870 P.2d at 926 (discussing Liberal Party “campaign” to arouse federal government action concerning Mormon polygamy and perceived theocracy). The Liberal Party’s platform consisted largely of an attack on the Mormon church, even though in its platform it denied that the church was legitimate. Liberal Party Platform, in Important Documents Bearing on Political Questions In Utah 10, 10-12 (1882) [hereinafter Important Documents]. The Liberals accused the Church of “perverting the local government,” “sowing suspicion and bigotry” (toward gentiles), making Utah a land of “disloyalty” toward the federal government, dishonoring women, and so forth. Id. at 10-11.
The People’s Party platform, in response, opposed what it viewed as the suggestion of the Liberal “so-called political party” that the rights of Utahns came only from Congress. People’s Party Declaration of Principles, in Important Documents, supra, at 7, 7-9. Calling this a “monstrous doctrine,” the People’s Party called for the supremacy of constitutional law and the privilege of self-government. The People’s Party also pointed out that over 80% of the crimes in the territory were committed by less than 20% of the people, those being Liberals. Id. In 1890, with federally appointed elections officials barring many People’s Party members from voting, the Liberals swept the Salt Lake City elections. Lyman, supra note 116, at 117.
163. Brigham Young as a Ruler, Salt Lake Trib., Aug. 30, 1877, at 2.
164. The U.S. Supreme Court had already held that polygamy was not protected under the Free Exercise Clause of the First Amendment to the U.S. Constitution. Reynolds v. United States, 98 U.S. 145, 166-67 (1878) (upholding Morrill Antibigamy Act of 1862). The Court later rejected most of a number of challenges brought to the manner in which polygamy cases were prosecuted. Miles v. United States, 103 U.S. 304 (1880).
165. Gustave O. Larson, The Crusade and the Manifesto, in Utah’s History, supra note 73, at 257, 258-61. Mormon church President John Taylor responded to the Edmunds Act by saying: “We have no fault to find with our government, we deem it the best in the world, but we have reason to deplore its maladministration. . . . We will contend . . . legally and constitutionally, for our rights as American citizens and plant ourselves firmly on the sacred guarantees of the Constitution.” Id. at 261. Such sentiments echo the view of the prophet who founded the Mormon church, Joseph Smith, who believed that the weaknesses of American government lie not in its Constitution but in the behavior of the people operating the machinery of government. Society of Separationists, 870 P.2d at 929 n.31. Utahns found their elections closely regulated by a federally appointed Utah Commission. In addition, the U.S. Supreme Court and Congress stripped back the wide ranging jurisdication of Utah’s probate courts. Firmage, supra note 73, at 219. The assault on Mormon society would expand to include restrictions on inheritance, immigration, and on Utah’s economic system. Id. at 226-60.
166. Flynn, supra note 76, at 319. Three women attended this convention as delegates: Emmeline B. Wells, Sarah M. Kimball, and Elizabeth Howard. Hickman, supra note 85, at 56. The 1882 Constitution included property rights protections that could help women, art. XV, § 12, but barred women from the governorship and certain other executive offices, art. V, §§ 3 and 12, and from jury duty, art. XV, § 3.
167. H.R. Misc. Doc. No. 43, 47th Cong., 1st Sess. 3-13 (1882). This Constitution was accompanied by the Memorial of the Citizens of the Territory of Utah Asking for the Admission of Utah as a State In the Union. Id. at 1- 3 [hereinafter Memorial (1882)], reprinted in Const. of the State of Utah (Deseret News Co. 1882). The Deseret News Company’s publication of the proposed 1882 Constitution was in a booklet also containing a journal of the convention proceedings.
168. Compare Utah Const. of 1882 (proposed Constitution of 1882) with Deseret Const. of 1872 (proposed Constitution of 1872). The 1872 Constitution’s cumulative voting provision was dropped.
169. Utah Const. of 1882, art. 1, § 10 (proposed Constitution of 1882).
170. Id. art. I, § 19.
171. See id. pmbl.
172. Memorial (1882), supra note 167, at 2.
173. See supra text accompanying note 149 (discussing Deseret Const. of 1872).
174. Ivins, supra note 136, at 98.
175. B.H. Roberts, “Mormon” Protest Against Injustices, in An Appeal for Constitutional and Religious Liberty: Full Report of the Great Mass Meeting Held in Salt Lake City, May 2, 1885, With the Full Text of the Speeches and the Protest and Declaration of Grievances 41 (reported by John Irvine 1885).
176. Id.
177. The Edmunds-Tucker Act disenfranchised Utah women, allowed confiscation of most Mormon church property, and was quite unpopular with most Utahns. Larson, supra note 165, at 267-68. The Edmunds-Tucker Act led to such things as the decision in United States v. Late Corporation of Church of Jesus Christ of Latter-day Saints, 18 P. 35 (Utah 1888), which began: “In this suit, brought to wind up the affairs of the late corporation of the Church of Jesus Christ of Latter-Day Saints. . . .” Id. at 36. Such decisions made Utah Mormons feel discriminated against. See also Late Corp. of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1, 65 (1889) (allowing confiscation of Church property). Of course, the Supreme Court of Utah was still protecting some rights during these years. In Territory v. Olsen, 22 P. 163 (Utah 1889), the court upheld the conviction of two men for “maliciously and willfully maiming and wounding a pig.” Id. at 164.
178. Flynn, supra note 76, at 319-20.
179. Hickman, supra note 85, at 60-61.
180. H.R. Misc. Doc. No. 104, 50th Cong., 1st Sess. 3-15 (1888). This document also contains the Memorial of the Constitutional Convention of Utah. Id. at 1-3 (including Journal of Proceedings) [hereinafter Memorial (1887)].
181. Utah Const. of 1887, art. XV, § 12 (proposed Constitution of 1887).
182. Id. art. I, § 3.
183. Id. art. I, § 22; see supra text accompanying note 170 (discussing Utah Const. of 1882, art. 1, § 19) (proposed Constitution of 1882).
184. Memorial (1887), supra note 180, at 3.
185. Id. at 2.
186. Id. at 3.
187. Id. The accompanying memorial stated that this was the fifth time Utahns had presented Congress with a proposed Constitution. Id. at 1. According to Flynn’s count, this was the sixth Constitution written by Utahns, but only the fifth sent to Congress. See Flynn, supra note 76, at 319-21. Lyman stated that this was the sixth time Utahns had sent a Constitution to Congress. Lyman, supra note 116, at 41. By my count, however, the Constitution of 1887 could be considered both the seventh proposed Constitution and the seventh Constitution sent to Congress, counting both the Constitution of 1856 (which was not immediately sent to Congress, but attempts were later made to introduce it) and the Constitution of 1867 (the legislatively amended version of the Constitution of 1862).
188. Ivins, supra note 136, at 100.
189. Id. The first Mormon prophet, Joseph Smith, had run for President of the United States as a Jeffersonian Democrat. Edward L. Lyman, Heber M. Wells and the Beginning of Utah’s Statehood 10 (1967) (unpublished M.S. thesis) (on file with author). The Republicans had led the polygamy-era fight against the church. Id. at 9-10. Given these facts, some church leaders were concerned that most of the church membership would move into the Democratic camp, which would make Utah politically imbalanced. Id. at 10. Church leaders tried to convince members that they could be good Mormons and Republicans too; apparently these efforts were more successful than one might have expected, since at the next constitutional convention most of the delegates were Republican. Id. at 12. Party differences over national political issues may have contributed to this shift in political preference also. Id. at 12-13.
190. Ivins, supra note 136, at 100.
191. Flynn, supra note 76, at 322-23. Morse attacked Utah polygamists, and Rawlins replied by saying that the people responsible for the education of those who established polygamy were the very same New Englanders who established the educational system in which Morse was taught. Id. at 322 n.86. Rawlins added that the moral sentiment that led to the adoption of polygamy in Utah was “the outgrowth of that puritanical sentiment which in some of its excrescences in the older days burnt witches, persecuted Quakers, drove out from the community Roger Williams, and later produced the gentleman from Massachusetts.” Id.
192. Enabling Act, ch. 138, 28 Stat. 107 (1894).
193. Because I have labeled each of the preceding Constitutions by the year they were created, I will similarly label this Constitution by the year it was created. Note, however, that some other writers label it the Constitution of 1896. See Flynn, supra note 76, at 314. Also, because Utah achieved statehood in 1896 under this Constitution, the Utah Code refers to this Constitution as the Constitution of 1896. Utah Const. art. I, § 1 (History).
194. Utah Constitutional Convention, Salt Lake Trib., Mar. 4, 1895, at 1. This announcement was accompanied by a picture of a stately woman clad in Grecian robes, with a beehive (the symbol of Utah) perched on her head. Id.
195. Id.
196. Ivins, supra note 136, at 101.
197. 1 Official Report of the Proceedings and Debates of the Convention Assembled at Salt Lake City on the Fourth Day of March, 1895, to Adopt a Constitution for the State of Utah 8-9 (1898) [hereinafter Proceedings].
198. Ivins, supra note 136, at 101.
199. Id.
200. See, e.g., 1 Proceedings, supra note 197, at 65 (naming members of first three committees).
201. Declaration of Rights, Salt Lake Trib., Mar. 19, 1895, at 5; see also Andrew Kimball, Diary (Mar. 8-18, 1895) (copy on file with author) (mentioning days at work on “Preamble” and “Declaration” Committees).
202. Gustave O. Larson & Richard D. Poll, The Forty-fifth State, in Utah’s History, supra note 73, at 387, 394.
203. Ivins, supra note 136, at 102-03.
204. See id. (stating that Roberts opposed women’s suffrage based on “moral principle and political expediency”).
205. See Ivins, supra note 136, at 103. Reading the convention records on the debate over suffrage is quite interesting. These debates were also the talk of the state and were well attended by the public (who even crowded out delegates at times). The arguments for suffrage, which invoked the Declaration of Independence and Lincoln’s arguments for freeing the slaves, are inspiring. See 2 Proceedings, supra note 197, at 437-52. The repartee between the sides is also quite entertaining. For example, Orson Whitney opined that B.H. Roberts could hardly be likened to Horatius or Leonidas, and mused that perhaps he might not even qualify as “Balaam’s ass.” Id. at 506. The public later filled the convention hall to hear Roberts respond that the biblical Balaam’s ass saved a prophet from destruction, and to paint Whitney as a confused prophet. Id. at 585-86. In addition to approving suffrage, the convention did not incorporate the language from the 1882 Constitution that would have prohibited women from running for governor and other executive offices.
206. 2 Proceedings, supra note 197, at 1018, 1611-14. Many of the most prominent Mormon leaders of the convention opposed prohibition. Id. at 1431- 63. The convention debates also reflected many of the concerns of the era: agricultural versus urban interests, concerns about large corporations corrupting government, and so forth.
207. The convention finished the Constitution on May 6, 1895. Id. at 1834.
208. Utah Const. art. I, § 1.
209. See, e.g., Utah Const. of 1887, art. I, § 1 (proposed Constitution of 1887) (providing for rights to “life, liberty, and the pursuit of happiness”).
210. Compare Utah Const. art. I, § 27 with Utah Const. of 1887, art. I, § 22 (proposed Constitution of 1887).
211. Utah Const. art. I, § 3.
212. Id. art VI.
213. Id. art. VI, § 26.
214. Utah Const. of 1882, art. V (proposed Constitution of 1887).
215. See Utah Const. art. VII; compare id. with Utah Const. of 1887, art. V (proposed Constitution of 1887).
216. Utah Const. art. VII, § 1.
217. Id. art. VIII, § 1.
218. Id. art. X, § 1-2.
219. Id. arts. XII-XX. Professor Flynn’s legal history of the Utah Constitution warns that the Constitution of 1895 is an “outmoded and archaic” document that has rendered the state incompetent to participate in cooperative federalism. Flynn, supra note 76, at 314. While Flynn lauds the 1849 Constitution of Deseret—the Constitution that may have been created privately by Mormon leaders—as a model constitution, he argues that the 1872 Constitution of Deseret was a radical change from the earlier Deseret Constitutions. Id. at 315, 318; see supra part III.A.1 (discussing Deseret Constitution of 1849). According to Flynn, the 1872 Constitution incorporated long, “debilitating” provisions, created too rigid a separation of powers based on a distrust of government power, and severely weakened the executive branch by dividing power between various elected officers (actually, this division occurred first in the 1849 Constitution). Flynn, supra note 76, at 314, 317-18. This conversion of a model constitution into a crippled statute supposedly continued up through the 1895 constitutional convention. Flynn believes that the Constitution of 1895 is a patchwork of provisions borrowed from other states without any serious debate and that the Utah Constitution cannot therefore be considered a document written by Utahns for Utahns. Id. at 324-25. In fact, Flynn claims that the Utah Constitution of 1895 makes “viable state government impossible.” Id. at 325.
Since Flynn’s legal history was the most accessible and widely used legal history of the Utah Constitution, it is important that its conclusions be assessed. This is particularly true given that his conclusions could be used to argue that certain incursions on civil liberties do not violate the spirit of the Utah Constitution since the Utah Constitution supposedly has no spirit of its own (being a patchwork of borrowed provisions).
Flynn suggests that there is something wrong with the fact that delegates to the 1895 convention studied and borrowed from other state constitutions in framing our current Constitution. Flynn, supra note 76, at 324-25. However, Flynn’s suggestion is debatable, especially since parts of his favored “model” Constitution of 1849 were influenced by other constitutions. See supra note 100 (comparing 1849 Constitution with those of Illinois and Iowa). No constitution in America is unique; all share common elements. As one delegate to the 1895 convention explained in response to a question about whether a particular provision under consideration was borrowed from another state: “There is nothing original but sin, and you have that.” 1 Proceedings, supra note 197, at 237 (statement of James N. Kimball). Borrowing the best from other states is to be expected. What works in one state can justifiably be copied by another. This improves the likelihood that the new state government will work and also lends some uniformity to the federal mosaic. It would be wrong for constitutional drafters to try to impose a completely unproven form of government on a state.
Flynn’s claim that there was no serious debate of important issues in the 1895 convention, Flynn, supra note 76, at 323, is also questionable. For example, the suffrage debate was particularly long, intense, and important. 1 Proceedings, supra note 197, at 407-804; see supra text accompanying notes 202-05 (discussing suffrage debate). The Proceedings contain almost 2000 pages of convention debate; the delegates were involved in various significant discussions throughout many of those pages. Moreover, those volumes do not contain the entire debate of the convention as a whole and do not contain the convention’s committee records (the committees drafted the initial provisions of the Constitution). Consequently, one cannot legitimately claim that there was no debate on, for example, the role of the executive, because some of the relevant convention records have been lost.
Flynn also charges that the Utah Constitution is burdened by unnecessary detail. Flynn, supra note 76, at 317-18. Flynn is correct that the Constitution of 1872 did incorporate additional provisions, such as an article on impeachment and one on education. The 1895 Constitution even incorporated such minutia as a requirement that the metric system be taught in the schools. Utah Const. art. X, § 11 (repealed 1987). Some of the detail in the Constitution is arguably good, such as the 1895 Constitution’s equal rights provision, the Constitution’s protection of the rights of labor, and the protection against “unnecessary rigor” during arrest (a protection not found in many constitutions). Utah Const. art IV, § 1, art. XVI, art. I, § 9. Moreover, a quick glance through the Constitution as printed in the Utah Code shows that it is not a moribund document locking Utah into the past. Utah’s Constitution has been altered frequently; provisions have been repealed or added to keep Utah in step with the times. However, it may well be true that the Constitution is more detailed than it should be.
In fact, at the time Flynn wrote the article, a number of people were concerned that some of the Constitution’s detail was hurting the state. Flynn’s article is part of a symposium issue of the Utah Law Review dealing with state constitutional law and the need to reform Utah’s Constitution. Flynn was particularly concerned with a crisis in state government caused by executive branch gridlock. His article was part of an effort to, among other things, eliminate the State’s Board of Examiners. The Constitution’s Board of Examiners provision was eventually repealed. See Utah Const. art. VIII, § 13 (repealed 1992). However, the then-pressing political concerns motivating Flynn’s article were not fully explained within that article. These concerns were explained in another article. See John J. Flynn, Constitutional Difficulties of Utah’s Executive Branch and the Need for Reform, 1966 Utah L. Rev. 357 (arguing for reform of Utah Constitution).
Flynn’s useful history does make a number of valuable points. In fact, Flynn’s point that strong state governments are necessary to slow the shift of power to the federal government in Washington, D.C. is very apt and important. Flynn, supra note 76, at 325. But it is also important to consider that the Utah Constitution may be a valuable, useful document reflecting the diligent efforts of Utahns to benefit Utah.
220. Larson & Poll, supra note 202, at 395. This took place on January 4, 1886, making Utah the 45th state and establishing January 4 as Utah’s statehood day.
221. Scholars interested in researching the legal history of the Utah Constitution can find versions of early constitutions at the Utah State Historical Society, in the Special Collections of the Marriott Library at the University of Utah, in the LDS Church Archives, and elsewhere. Some of the constitutions in these collections are in the form of a congressional document, while some are privately printed versions of the constitutions. Discussing such research with a professional archivist at these sites can result in easier access to such materials, as well as to other materials the archivist may know of that may not be properly catalogued in each site’s indexes.
222. Utah Const. art I, § 27.
223. A 1995/1996 telephone survey conducted by Nicki Wake of Utahns around the state suggests that most Utahns (58% of survey participants) do not frequently think about fundamental principles and cannot think of any when asked. A number (45%) of those who said that they do think about fundamental principles could not think of a fundamental principle when asked to describe one. Among those who said that they knew what fundamental principles are, there was no unanimity of opinion—answers ranged from freedom of speech to the right to bear arms to representative government to tax limitation to abortion rights. An informal survey of members of the University of Utah College of Law community yielded similar results (survey results on file with author).
224. The word “recur” is defined as “to go back in thought or discourse.” Merriam-Webster’s New Collegiate Dictionary 978 (10th ed. 1994).
225. If a government official has a duty to defend individual rights and uphold the government, the fact that Section 27’s requirement of recurrence is necessary to uphold individual rights and perpetuating free government should make frequent recurrence mandatory for such officials.
226. 2 Proceedings, supra note 197, at 361-62. The daily proceedings of the convention were typed verbatim. Series 3212 Description (Series 3212 is the set of convention records archived by the State of Utah; it is described by the Series 3212 Description—three pages of explanatory material cataloging the records. The Description is contained in Series Inventory Binder #5). The State Constitutional Convention (1895) Convention Records [hereinafter Records] is this typewritten record. Toward the end of the convention the delegates decided to publish an edited version of the stenographer’s typewritten record to help the public better interpret the intent of the Convention. 2 Proceedings, supra note 197, at 1744. Proceedings is the published version of the typewritten record of the convention. Series 3212 Description, supra, at 1. A few parts of the typewritten record were not included in Proceedings and some parts of the debates were edited, but Proceedings is a fairly accurate record of the convention debates. Series 3212 Description, supra, at 1.
Unfortunately, Proceedings does not cover everything that went on in the convention. Series 3212 Description, supra, at 2. Many committee reports are not contained in Proceedings and have been lost. Series 3212 Description, supra, at 1. Some other convention files have also been lost. Series 3212 Description, supra, at 1. What remains, along with a published Journal of the Convention (recording daily procedural events but not the text of debates) and the other sources described above, are available at the Utah State Archives. Proceedings is available more widely.
227. 2 Proceedings, supra note 197, at 361-62.
228. Once the conventioneers arrived; most of the delegates wandered in late. The Bill of Rights, Deseret Evening News , Mar. 26, 1895, at 1.
229. In the debate, this section was referred to as Section 29 because it was the 29th section of the proposed Declaration of Rights. God Bless the Ladies, Salt Lake Trib., Mar. 19, 1895, at 5. After the delegates revised the Declaration of Rights, the proposed Section 29 became Section 27.
230. Varian had come to Utah from Nevada to prosecute Mormons for polygamy. Ivins, supra note 136, at 95, 100-01. Varian was an able lawyer and an accomplished parliamentarian. Utah Constitutional Convention, Salt Lake Trib., Mar. 4, 1895, at 1.
231. 2 Proceedings, supra note 197, at 361-62.
232. Utah Const. art. I, § 26.
233. 2 Proceedings, supra note 197, at 361-62. Since the provision seems to have been copied from Article I, Section 32 of the Washington Constitution, it might appear that Varian had no real objection. Id. However, the Salt Lake Tribune reported that Varian’s remark about the Washington Constitution was a sarcastic reference to delegate Eichnor’s frequent citing of other state constitutions. Will Schools Be Free?, Salt Lake Trib., Mar. 27, 1895, at 3, 5. This may well be true, although because the Tribune’s reporting of the content of this exchange differs from the Records and the Proceedings accounts, it is also possible that the Tribune exaggerated the sarcastic nature of Varian’s statement.
The delegates did draft Section 27 to be very similar to Washington’s Section 32. However, the 1887 and 1882 proposed Utah Constitutions (written before the Washington Constitution) also had similar, but longer “frequent recurrence” provisions. Those provisions were similar to provisions in the West Virginia and Wisconsin Constitutions. Interestingly, the Washington Constitution also borrowed from the Wisconsin Constitution, as well as the Illinois and New Hampshire Constitutions. Sanford E. Pitler, Comment, The Origin and Development of Washington’s Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L. Rev. 459, 522 n.325 (1986).
234. Heber Wells would later become Utah’s first governor after statehood. 4 Orson F. Whitney, History of Utah, 619-20 (1904). Like Varian and Van Horne, he was a Republican.
235. 2 Proceedings, supra note 197, at 362.
236. Whitney was a writer, poet, historian, and a Democrat. Utah Constitutional Convention, Salt Lake Trib., Mar. 4, 1895, at 8.
237. 2 Proceedings, supra note 197, at 362.
238. See Utah Const. art. I, § 1. This section is the source of the “inherent and inalienable right to enjoy and defend their lives and liberties” language that Whitney alluded to.
239. Richards, a Democrat, was a leading lawyer in Utah and a point man in the defense of Mormons being tried for polygamy. Larson, supra note 165, at 257, 262; see also Biographical Sketch of Franklin S. Richards, in Tullidge’s History of Salt Lake City 2-10 (1886).
240. 2 Proceedings, supra note 197, at 362.
241. Id.
242. Id. at 437-54.
243. Id.
244. See supra text accompanying note 235 (stating that Section 27 was “a patriotic utterance that did no harm”).
2 Proceedings, supra note 197, at 437-54.
246. Id.
247. Id. at 4, 540, 556, and 568. The fundamental principles contained in the Declaration of Independence are summed up in this passage:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The Declaration of Independence para. 2 (U.S. 1776).
248. 1, 2 Proceedings, supra note 197, at 4, 540, 556, and 568.
249. Id. at 440, 451, 540, and 643.
250. See supra text accompanying notes 95, 109-14, 126-27, 132-33, 149-53, 162, 171, and 184 (describing each proposed Constitution’s characterization of territorial rule, and—in note 162—providing the majority political party’s position on political issues). Sources bearing on why the “frequent recurrence” provision was included in the 1882 Constitution are hard to find. The journal of the convention is too short to contain such information, the newspapers at the time made no mention of the provision, and no known journal entries from members of the Standing Committee on Ordinance and Bill of Rights cover discussion of the provision.
251. Id.
252. Id.
253. Id.
254. 648 P.2d 1364 (Utah 1982).
More recently, Rackley v. Fairview Care Centers, 2001 UT 32, 23 P.3d 1022, dealt with a plaintiff’s assertion that Article I, Sections 1 and 27 of the Utah Constitution create a public policy reason for shielding an employee from being fired for reporting that another employee was hiding the existence of a VA check from a nursing home resident. The Utah Supreme Court stated that “these two provisions do protect the right to acquire, possess, and protect property,” but also decided that these provisions do not create a public policy exception to at-will employment status. Section 1 specifically deals with the right to acquire, possess, and protect property, while Section 27 does not expressly speak of property rights. There was no additional discussion of the extent to which the Court relied on Section 27 for its conclusion, rather than relying Section 1 alone. One could argue that the Court mentioned Section 27 in conjunction with Section 1 only because the plaintiff tried to tie them together, and since it was rejecting the plaintiff’s argument the Court found no need to go into greater detail and discuss property rights solely under Section 1. However, there is a stronger argument that the Court was stating, at least in dicta, that it is a fundamental principle that people have the right to acquire, possess, and protect property.
255. Id. at 1365 (quoting Utah Code Ann. § 78-3a-48(1)).
256. Id. at 1365-66 (quoting Children’s Rights Act, ch. 40, 1980 Utah Laws 288).
257. Id. at 1366.
258. Id. at 1377. Article I, Section 7 of the Utah Constitution says: “No person shall be deprived of life, liberty or property, without due process of law.” Utah Const. art. 1, § 7. Section 25 says: “This enumeration of rights [the Article I Declaration of Rights] shall not be construed to impair or deny others retained by the people.” Id. § 25. The Ninth Amendment to the U.S. Constitution states that citizens enjoy unenumerated rights, and the Fourteenth Amendment requires that states respect the due process rights of all persons. U.S. Const. amend. IX, XIV.
259. In re J.P., 648 P.2d at 1372-73 (citations omitted).
260. 2 Proceedings, supra note 197, at 362. Washington’s provision reads: “A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” Wash. Const. art. 1, § 32. Recall, however, that the 1882 and 1887 proposed Utah Constitutions—written before Washington’s Constitution—each contained a “frequent recurrence” provision. See supra note 233 (noting that frequent recurrence provisions were similar to but longer than Washington’s). Utahns did not first get the idea for such language from Washington, but did use the form of Washington’s provision in the 1895 Utah Constitution.
261. Examining the legislative history of Washington’s Section 32 is difficult because there is no record of the debates. The Journal of the Washington State Constitutional Convention 1889, at vi-vii (Beverly Paulik Rosenow ed., 1962) (containing procedural record of convention events). The court reporters who recorded the debates in shorthand were never paid to transcribe the debates, and the shorthand records were destroyed. Id.
262. 181 P. 920 (Wash. 1919).
263. Id. at 924.
264. Id. at 922.
265. Id.
266. 137 P.2d 1010 (Wash. 1943).
267. Id. at 1015.
268. Id.
269. 136 P.2d 165 (Wash. 1943).
270. Id. at 169 (Miller, J., dissenting).
271. 2 Proceedings, supra note 197, at 362.
272. One scholarly analysis of Washington’s Section 32 concluded that Section 32 refers to four fundamental principles that enhance individual rights. Brian Snure, Comment, A Frequent Recurrence to Fundamental Principles: Individual Rights, Free Government, and the Washington State Constitution, 67 Wash. L. Rev. 669 (1992). According to Snure, these principles are (1) liberty, (2) democracy, (3) natural law, and (4) federalism. Id. at 681-89. Snure argued that by basing the Washington Constitution on these principles, that Constitution provides more rights for the citizens of Washington than does the U.S. Constitution. He also argues that it provides a greater role for citizen participation in government than does the U.S. Constitution. Id. at 688-90. Such opportunities for participation make it easier for citizens to protect their own rights.
273. Three other states originally had similar provisions, but the provisions were not carried into their subsequent constitutions. Neb. Const. of 1866-1867, art. I, § 19, reprinted in Federal and State Constitution, supra note 94, at 2351 (“The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”); Ohio Const. of 1802, art. VIII, § 18, reprinted in Federal and State Constitutions, supra note 94, at 2911 (“That a frequent recurrence to the fundamental principles of civil government is absolutely necessary to preserve the blessings of liberty.”); Pa. Const. of 1776, § XIV, reprinted in Federal and State Constitutions, supra note 94, at 3083 (“That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free: The people ought therefore to pay particular attention to these points in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislatures and magistrates, in the making and executing such laws as are necessary for the good government of the state.”).
274. Harry L. Carrico, The Seventeenth Annual Kenneth J. Hodson Lecture: George Mason, John Marshall, and the Constitution, 121 Mil. L. Rev. 1, 9 (1988).
275. Va. Const. of 1776, § 15.
276. Va. Const. art. I, § 15. One scholarly analysis of this provision concluded that the blessings of freedom depend not just on whether a constitution creates a good form of government, but on whether the citizenry understand their civic responsibilities and always remember to fulfill them. Julian P. Boyd, On the Need for “Frequent Recurrence to Fundamental Principles,” 62 Va. L. Rev. 859, 870-71 (1976). Boyd explained that the writers of Virginia’s Declaration of Rights included this provision because they did not want the rights for which they fought so hard to slip away due to inaction of the people. Id. at 871.
277. N.C. Const. of 1776, § XXI. One scholarly analysis concluded that North Carolina’s provision comprehended at least three fundamental principles: popular sovereignty, separation of powers within state government, and freedom of religion. John V. Orth, “Fundamental Principles” in North Carolina Constitutional History, 69 N.C. L. Rev. 1357, 1364 (1991).
Another scholarly analysis of the provision concluded that frequent recurrence to fundamental principles entails respect for individual rights and an obligation to preserve that for which earlier generations fought. Louis D. Bilionis, On the Significance of Constitutional Spirit, 70 N.C. L. Rev. 1803, 1813-15 (1992). Bilionis further suggested that this provision deals not with an enforceable duty, but with a constitutional attitude, particularly as it relates to judicial interpretation of a constitution. Id. at 1812-13. Bilionis observed that in the “interstices of constitutional analysis,” a judge’s sense of constitutional spirit informs the jurist’s judgment in filling gaps in the law. Id. at 1813. Frequent recurrence to fundamental principles will help a judge interpret a constitution according to the constitution’s spirit, not the spirit of the U.S. Constitution or the spirit of a currently popular constitutional theory. Id.
278. As noted, Virginia and then North Carolina wrote the first such provisions. The other provisions follow in order of their creation:
The 1776 Constitution of New Hampshire read:
A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government; the people ought, therefore, to have a particular regard to all those principles in the choice of their officers and representatives: and they have a right to require of their law-givers and magistrates, an exact and constant observance of them in the formation and execution of the laws necessary for the good administration of government.
N.H. Const. of 1776, pt. I, art. I, § XXXVII.
The 1777 Constitution of Vermont read:
That frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the blessings of liberty, and keep government free. The people ought, therefore to pay particular attention to these points, in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislators and magistrates, in the making and executing [sic] such laws as are necessary for the good government of the State.
Vt. Const. of 1777, ch. I, art. 16.
The 1780 Constitution of Massachusetts read:
A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives: and they have a right to require of their lawgivers and magistrates an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.
Mass. Const. of 1780, pt. 1, art. XVIII.
The 1818 Constitution of Illinois read: “[A] frequent recurrence to the fundamental principles of civil government is absolutely necessary to preserve the blessings of liberty.” Ill. Const. of 1818, art. VIII, § 18. This provision is addressed briefly in Orrin N. Carter, The Coming Illinois State Constitutional Convention, 14 Ill. L. Rev. 333, 333 (1919) (arguing that frequent recurrence by citizens is important because it reminds them of importance of rule of law, and that by respecting law people retain liberty).
The 1848 Constitution of Wisconsin read: “The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.” Wis. Const. of 1848, art. I, § 22. This provision is addressed briefly in A.H. Reid, A Frequent Recurrence of Fundamental Principles, 1 Marq. L. Rev. 186, 186 (1916-1917) (arguing that legislatures should make reference to sound and timeless principles of justice and moderation before deciding on particular policy).
The 1872 Constitution of West Virginia read: “Free government and the blessings of liberty can be preserved to any people only by a firm adherence to justice, moderation, temperance, frugality and virtue, and by a frequent recurrence to fundamental principles.” W. Va. Const. of 1872, art. III, § 20.
Washington’s provision was written in 1889. Wash. Const. of 1889, art. I, § 32.
The 1889 Constitution of South Dakota read: “The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.” S.D. Const. of 1889, art. VI, § 27.
Utah’s provision was written in 1895. Utah Const. of 1895, art. I, § 27.
The 1910 Constitution of Arizona read: “A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” Ariz. Const. of 1910, art. II, § 1.
A similar provision is also part of the Constitution of the Gila River Indian Community. Gila River Indian Community Const. art. IV (“A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”) (cited in Bilionis, supra note 277, at 1811 n.29).
It is not clear how many of the pre-1895 “frequent recurrence” provisions were familiar to the delegates to Utah’s 1895 constitutional convention.
279. For an indication of how various state courts have interpreted these provisions, see Bilionis, supra note 277, at 1815 n.44. Bilionis’s sampling of case citations shows that these provisions have been interpreted in a variety of ways, often as part of an effort to protect rights.
280. Va. Const. art. I, § 15; see supra text accompanying note 276; cf. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse passim (1991) (discussing importance of sense of responsibility in addition to desire for rights).
281. See Va. Const. art. I, § 15; see supra text accompanying note 276.
282. Va. Const. art. I, § 15.
283. Vt. Const. ch. I, art. 18; see supra note 278 (quoting fundamental principles provision of Vt. Const. of 1777, ch. I, art. XVI).
284. Mass. Const. pt.1, art. XVIII; see supra note 278 (quoting fundamental principles provision of Mass. Const. of 1780, pt. 1, art. XVIII).
285. N.H. Const. pt. 1, art. 38; see supra note 278 (quoting fundamental principles provision of N.H. Const. of 1776, pt. I, art. XXXVIII).
286. Ill. Const. art. 1, § 23 (adding to original language: “These blessings cannot endure unless the people recognize their corresponding individual obligations and responsibilities.”); see supra note 278 (quoting fundamental principles provision of Ill. Const. of 1818, art. VIII, § 18).
287. Mass. Const. pt. 1, art. XVIII; N.H. Const. pt. 1, art. XXXVIII; Vt. Const. ch. I, art. 18; Va. Const. art. I, § 15.
288. See Boyd, supra note 276, at 870 (stating bills of rights, constitutions, and laws are only as strong as citizens).
289. Mass. Const. pt. 1, art. XVIII; N.H. Const. pt. 1, art XXXVIII; Vt. Const. ch. I, art. 18.
290. See supra note 118 (detailing some conflicts between Mormons and their non-Mormon government leaders early in Utah’s history).
291. See supra text accompanying notes 170 and 183 (describing 1882 and 1887 proposed constitutional language).
292. A state statute is similar to the older version of Section 27; section 53A-13-101 of the Utah Code requires schools to teach
[h]onesty, temperance, morality, courtesy, obedience to law, respect for and an understanding of the Declaration of Independence and the Constitutions of the United States and the state of Utah, Utah history including territorial and preterritorial development to the present, the essentials and benefits of the free enterprise system, respect for parents and home, and the dignity and necessity of honest labor and other skills, habits, and qualities of character which will promote an upright and desirable citizenry and better prepare students for a richer, happier life . . . .
Utah Code Ann. § 53A-13-101(4) (Supp. 1996).
293. This was a common and widespread view of rights in the late 1800s. Thomas Cooley’s treatise on state constitutional law noted:
In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded against and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed.
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 49 (6th ed. 1890) [hereinafter Constitutional Limitations]. Delegates to the 1895 constitutional convention repeatedly referred to Cooley’s treatise during the 1895 convention debates. 2 Proceedings, supra note 197, at 438, 446-47, 1739.
294. See supra text accompanying notes 95, 109-14, 124-27, 132, 149, 172, 180, 208-09 (describing proposed constitutions’ inclusion of natural rights).
295. 1, 2 Proceedings, supra note 197, at 4, 439-42, 540, 556-68.
296. Utah Const. art. I, § 1.
297. Utah Const. art. I, § 27.
298. Utah Const. art. I, § 1.
299. Marvin S. Hill, The Rise of the Mormon Kingdom of God, in Utah’s History, supra note 73, at 97, 100-01.
300. I use the term communitarian here in a general sense to refer to concern for community, social responsibilities, respect for tradition, and moral values, in contrast to fixation on radical individualism. The framers would likely be happy with such decisions as the pro-religious freedom Society of Separationists decision and the pro-family values In re J.P. decision. See supra parts II.B.1, IV.C (discussing Society of Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993) and In re J.P., 648 P.2d 1364 (Utah 1982)).
301. This provision was apparently copied from Article I, Section 2 of the Washington Constitution, with no floor debate during the convention. Compare Utah Const. art. I, § 3 with Wash. Const. art. I, § 2 (illustrating similarities).
302. State ex rel. Bishop v. McNally, 43 P. 920, 920 (Utah 1896) (holding that state government is not continuation of territorial government, but is sovereign).
303. Such a concentration of power should be guarded against. As one person put it in an electronic signature to his Internet newsgroup message, “‘A government big enough to give you everything you want is big enough to take everything you have.’” Internet .sig of Larry Smith, available at http://www.xmission.com/~wake/sigs.html (quoting Barry Goldwater). Even federal officials sometimes acknowledge the importance of federalism. In United States v. Lopez, Chief Justice Rehnquist stated:
We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, § 8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 229-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S. Ct. 2395, 2400, 115 L.Ed.2d 410 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Ibid.
United States v. Lopez, 115 S. Ct. 1624, 1626 (1995).
304. For a good summary of the pros and cons of federalism, see A.E. Dick Howard, The Values of Federalism, 1 New Eur. L. Rev. 143 (1993). Also note the Utah Supreme Court’s observation that
the history of our political institutions is founded in large measure on the concept—at least in theory if not in practice—that the more local the unit of government is that can deal with a political problem, the more effective and efficient the exercise of power is likely to be.
State v. Hutchinson, 624 P.2d 1116, 1121 (Utah 1980) (holding county could pass campaign finance disclosure ordinance because local governments may legislate for general welfare without specific grant of power from state).
305. Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, in Developments in State Constitutional Law: the Williamsburg Conference 239, 243 (Bradley D. McGraw ed. 1985). Justice Stewart explained in State v. Anderson:
In 1895, when the Utah Constitution was adopted, none of the specific provisions in the federal Bill of Rights was deemed binding on the states. The Bill of Rights restricted only federal, not state, action. The incorporation of various provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment so as to make them applicable to the states did not occur until several decades after the adoption of the Utah Constitution. Given that history, the framers of the Utah Constitution, like the framers of all other state constitutions, viewed their own state constitutional provisions as the sole source of constitutional protection for those individual liberties enshrined in state bills of rights and declarations of rights.
910 P.2d 1229, 1240 (Utah 1996) (plurality opinion) (Stewart, J., concurring in result) (interpreting search and seizure provision of Utah Constitution) (citations and footnotes omitted).
306. Article I, Section 2 of the Utah Constitution states that the people are the ultimate source of political power. Utah Const. art. I, § 2. Every earlier proposed Constitution also had a similar provision in Article I, Section 2. See supra part III.A (setting forth proposed language in Constitutions of Deseret and Utah).
307. James Q. Wilson, American Government 128-30 (1989).
308. Robert D. Putnam, Striving for Tocqueville’s America, L.A. Times, June 4, 1990, at B5.
309. See Rex. E. Lee, A Lawyer Looks at the Constitution 55-65 (1981); Howard, supra note 304, at 145-56.
310. These responsibilities include obeying the law, participating in community service, informed voting, and serving jury duty, among other things. Uintah High School, American Government Unit 3 Objectives (1993) (on file with author). The history of Section 27 also suggests that citizens should cultivate civic virtues, such as a desire for justice, moderation, and so forth.
311. See supra part II.B.2 (describing possible approaches to constitutional interpretation).
312. Id.
313. The federal courts had been putting polygamous Utah men in prison as rapidly as possible during the polygamy era for exercising what the prisoners viewed as their rights. Whitney, supra note 118, at 263-75, 366-85, 388-411, 419-31.
314. As Justice Ellett put it, the only real question is: “Shall the state courts be the final arbiters of their own laws under their own Constitutions . . . ?” State v. Archuletta, 577 P.2d 547, 551 (Utah 1978) (Ellett, C.J., concurring) (upholding conviction of burglar). To the framers of the Utah Constitution, the answer would be an obvious “yes.” Justice Ellett even labelled as “sycophants” judges who follow the lead of federal courts when they should not do so. Salt Lake City v. Piepenburg, 571 P.2d 1299, 1299 (Utah 1977) (upholding obscenity conviction).
315. Of course, judges must still protect constitutional rights regardless of public sentiment (although the public always has the opportunity to eliminate a constitutional right by amending the constitution).
316. Such suggestions are reminiscent of Will Roper’s eagerness in A Man for All Seasons to “cut a great road through the law to get after the Devil.” Robert Bolt, a Man for All Seasons 38 (1962). Sir Thomas More observed that should Roper succeed in “[cutting] down every law in England to do that,” there would be no place to stand in the winds that would then blow. Id.
317. 648 P.2d 1364 (Utah 1982).
318. See supra part IV.C (discussing a Utah case interpreting Section 27). Also, see supra note 254 dealing with property rights.
319. Hans Linde has argued that initiatives are incompatible with a republican form of government. Hans A. Linde, Who Is Responsible for Republican Government?, 65 U. Colo. L. Rev. 709 passim (1994).
Paul Wake