• In the ongoing legal challenge to Utah scholarships for families in need to use outside the public school setting, the judge has signaled an intent to look at the “original public meaning” of the state constitution and statutes.
• Original public meaning is the language adopted by lawmakers and voters as it would be understood by informed members of the public at the time that language became law.
• Notwithstanding the use of the appropriate phrase, the judge seems to be focused on the intent of lawmakers (including voters), which, unlike the language of a measure, is subjective and inaccessible to those affected by the law.

​A recent report on the ongoing lawsuit over whether the state can offer scholarships for families to use outside the public school system focused on the judge’s effort to understand the “original public meaning” of a 2020 amendment to the Utah Constitution. That amendment allows the state to use income tax and other revenue to not only fund public education but also “to support children and to support individuals with a disability.”

The article notes that the judge has asked for additional briefing meant to clarify the “original public meaning” of the amendment. That request is encouraging, because the original public meaning is always what courts should be looking for as they work to apply legal provisions to a specific dispute.

In the past (and sometimes still), some judges have tried to interpret constitutional and other legal provisions in different ways. They could, for instance, try to determine a higher meaning that motivated a law, like fairness, and then work to conform the language of the law to that higher meaning, even if the result is different from the wording of that law.

It has also been a practice for some judges to spend time trying to understand the intent of those who created a law (whether the drafters or legislators or citizens who ratified it). That usually involves looking at statements they made during the drafting process or legislative process or to the press or in materials presented to voters.

There are at least four significant drawbacks to these approaches.

First, courts do not have any special expertise that allows them to discern the intents of those who make laws. They cannot accurately know the thinking of legislators or voters. Indeed, human nature being what it is, those individuals are unlikely to even know themselves.

Second, public (or even private) statements can be illuminating – and are great for historians trying to understand what historical actors were really up to – but they are always indeterminate. A legislator may vote for a bill for a wide range of reasons, including political pressure, a desire to impress friends, or even inattention to detail, but is hardly likely to give these as reasons in the sources that make up a legislative history.

Third, laws are made by more than one person, so understanding the thought process of one lawmaker or voter, or even a group of them – however important those people might be – does not tell us what everyone understood was happening.

Fourth, circumstances change, and recollections of what legislators or voters thought could easily be colored by subsequent events. There is a risk of confusing what we think something ought to be now with what we thought it was in the past.

That is why the phrase 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. Why? Because the drafters, voters and ratifiers made that language the law. It is important that it is 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 in at least two ways. First, it has to be an open meaning, not a hidden subjective intent of an individual or group which would not have been known to those who approved the legal language. Second, and relatedly, it is public in that it can be ascertained by the public. A law that says X should only be understood to mean X even if the drafters or legislators creating it hoped it would mean Y. Of course, we have to assume that the public understanding was informed since we could not know every possibly idiosyncratic belief of every person, so valid laws can be sophisticated or complicated.

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 it does not tell us what the text means. Only the text itself can do that.

Taken together, original public meaning is a secure foundation for legal rules that will bind the public. Someone trying to conform to a written provision should not be (and really cannot be) expected to know what the legislators were really thinking when they drafted it. 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.

This is not to say that determining meaning will always be easy. Laws use legal terminology that is not always the same as common usage. Sometimes historical usage is different than current usage, so some historical research will be necessary. These instances, however, don’t justify ignoring the actual language of the law, since that is what those who will be governed by it “agreed to.”

The sour note in the coverage of the recent scholarship case, though, is that it appears the judge is encouraging the parties to look for something other than original public meaning – historical evidence about the intentions of voters. Intention is not the same as meaning, and it is subjective rather than public.

The phrase “support children,” for instance, is hardly a term of art or technical legal jargon. It doesn’t seem like the usage will have changed significantly since 2020.

More importantly, how will voter intent be determined? Contemporaneous survey data might disclose some attitudes about scholarship programs, but how would we know that the sample is coterminous with voters for Amendment G? The arguments printed on the ballot might tell us how the alternatives were framed, but they cannot tell us whether voters read, understood or believed them.

Even if it were possible to know what every voter was thinking when they approved the 2020 amendment, how would we decide which set of subjective intentions should control? It seems feasible to assume that some who voted for the law would not like the idea of scholarship funds being used in private schools. It seems just as likely (perhaps more, since the language seems pretty clear) that others saw it as opening the way to get support for new educational options. Which intention is the “real” one?

The same principle holds true for trying to determine the purpose of an enactment.

An illustration might make this a little clearer.

Think of the 15th Amendment, which says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Now imagine that a judge believes it can be understood by its purpose. They might conclude that the purpose is to ensure that formerly enslaved persons could vote. Would that then mean that laws would still be able to prohibit voting by Asian Americans?

What if the judge finds statements or journal entries from drafters, or members of Congress who voted for it, or state legislators who ratified it, and those statements included statements that these individuals were OK with Black Americans voting but wouldn’t want Hispanic Americans to vote? Should those intentions be controlling in any way when the language clearly rules those results out?

The bottom line is that the safe route is to look at the language of the Constitution rather than to a vague purpose or hidden intent. That is the only fair, reasonable and effective way to determine what the law is and thus how it should be applied.

In our system, there is always a way to change the law: Elect legislators who agree with you who can propose new laws. That is not always the easy route, but it is the only one that is just.