Originally published in Utah Policy

A recent news report about a challenge to the Utah Fits All program, which provides scholarships to parents to use outside the public school system, includes some good news and some concerning news. The court can make a great contribution by getting the legal issues right.

What is positive about the case is that the judge correctly notes that the relevant question is the “original public meaning” of a 2020 amendment to the Utah Constitution. The phrase may sound simple, but it’s a critical protection of the integrity of our laws and constitution.

The most common alternative to this approach is for judges to look for a higher meaning behind a legal provision or seek what they believe is the intention of the lawmakers, such as “fairness,” and then use that concept to adjust the law to fit the purpose they think it should fulfill.

The problem, of course, is that the role of courts is not to create law but to apply preexisting law to the disputes they must decide. Additionally, courts are not equipped to understand the subjective intent of those who enacted a law. Inevitably, laws are made by many people who have different intentions behind their actions.

The concept of original public meaning is a more secure standard for understanding the law. It focuses on the actual language of the law, not on the subjective intent of those who had a role in drafting, approving or ratifying it.

It is important to focus on the original meaning, because language and circumstances can change and cause us to lose sight of what the provision meant at the time it became binding. It is public because it is open (as opposed to subjective) and it is what the informed public would have understood the language to mean. The term meaning also points to the importance of the actual text of the provision. A purpose like advancing equality or achieving fairness might motivate someone to vote for a legal text, but that motivation does not tell us what the legal provision means. Only the text itself can do that.

It appears, however, that a recent decision of the Utah Supreme Court conflated original public meaning with a search for the intent of drafters or ratifiers of parts of the constitution. Perhaps that is why the judge in the Utah Fits All program lawsuit has asked the attorneys to provide evidence of the intent of the public when it voted on the provision of the state constitution that allows tax funds to be used to support public schools and to “support children.”

That search, though, will distract from the Utah Constitution’s original public meaning. Legislators and voters likely had multiple motivations and intentions in amending the constitution’s K-12 education provisions, most of which will be impossible to determine with precision, and which are really not relevant to the original public meaning anyway. Our legal rights and responsibilities cannot be controlled by subjective motivations we can only guess at. They must have a more secure foundation.

That is why original public meaning – the meaning of the language of the law as understood at the time it was enacted – is the most secure ground on which to build legal rules that will bind the public. It is to be found in the text of the law and sources like a dictionary or legal history, not in political and often agenda-driven statements of intent. The text also binds judges and those enforcing the laws so they are not tempted to creatively make laws through interpretation, which is outside their constitutional responsibility.

The proper understanding of original public meaning ought to be a guiding principle in court rulings about the meaning of constitutional provisions. When it comes to the Utah Fits All program lawsuit, the judge does not need to interpret public intent as a replacement for genuine understanding of original public meaning.