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). The Utah Constitution Search Engine (http://www.xmission.com/~wake/search.html) may be useful for quick, preliminary research.
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 apostle 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 ” 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 apostle 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