• The controversy over proposed Amendment D arose from a July Utah Supreme Court decision that gave the courts power to determine whether the Utah House and Senate could amend or repeal statutes that began as ballot initiatives.
• The reasoning in that decision demonstrates a fundamental misunderstanding of the court’s role in applying constitutional text, substituting a search for a subjective hidden meaning behind the text.
• A decision consistent with the court’s role would focus on understanding and applying the meaning of the express language of the Utah Constitution, which the court had resources to do. Returning to that understanding of the court’s role is critical to maintaining the integrity of our state constitution.

​Recent debates over ballot question language and lawsuits have obscured the big-picture policy questions that deserve to be thoughtfully considered, such as the role of ballot initiatives and elections in representative democracy and the responsibility of state courts in lawsuits arising from the legislative process. Our recent op-ed and podcast on proposed Amendment D dig deep into those issues.

But the topic of the state courts and the legislative process is particularly important. To understand why, it is worth examining in some detail the background to Amendment D, which is, in many ways, a response to a decision of the Utah Supreme Court issued in July.

That lawsuit involved a ballot initiative that enacted a law to change the way legislative districts in the state are drawn. The majority of elected lawmakers decided to amend that ballot initiative law like they would any other law, but those reforms troubled some of the supporters of the original initiative. They filed a lawsuit arguing that the amendment of the voter initiative law violated the spirit of the Utah Constitution and the intent of the initiative. The Utah Supreme Court ultimately agreed, though it left the resolution to the case to the lower courts.

The court characterized its decision as a protection of Utahns’ “right to reform the government through a citizen initiative … from government infringement.” The court invoked two constitutional provisions. The first is a general statement about the nature of government authority:

All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require. Article I, section 2

The second describes how the legislative power is to be exercised in the state:

(1) The Legislative power of the State shall be vested in: (a) a Senate and House of Representatives which shall be designated the Legislature of the State of Utah; and (b) the people of the State of Utah as provided in Subsection (2). Article IV, section 1

The court’s decision addresses an important question – what is the “legislative power”? The court references two legal reference works to explain that “legislative power generally includes the power to amend and repeal existing statutes.” It also notes that “of course, a citizen initiative, if approved by a majority of voters, becomes a statute.”

That would seem to make this an easy case. If the Legislature has the power to amend or repeal statutes, and a ballot initiative is a statute, then changes to the redistricting initiative would be within the Legislature’s clear constitutional authority. The court, however, argued that this apparent clarity is not enough to determine the case.

Instead, the court posited a new reading of the constitution where Article 1, Section 2 (which describes the people’s right to alter or reform the government) creates an implied (i.e. unwritten) limitation on the legislative power of the state’s elected House and Senate.

Though the court does not say this explicitly, it inserts this new limit on the Legislature’s authority by creating a new power for the courts. The court held that the Legislature can only make amendments to a ballot initiative “that facilitate or support the reform, or at least do not impair the reform enacted by the people.” In the alternative, the Legislature could show it has an overriding reason (“compelling interest”) in making the amendment. How would we know that this new requirement has been fulfilled? Through litigation and, ultimately, a court decision. Thus, initiative supporters have an incentive to sue any time an initiative is challenged to get the court’s “final word” on whether the Legislature stepped outside the bounds of its legislative power, as defined by the courts.

This will not always be a straightforward task and allows for an unusual amount of discretion to be granted to judges. To take the example behind the July decision, how would the court determine if a legislative amendment “facilitates” the intent behind the redistricting initiative? There could be different intentions from high-minded bipartisanship to simply seeking to change the partisan makeup of the Legislature.

To add a new line for courts in the legislative organization chart required the court to grapple with a previously settled understanding, arising from the nature of the judicial power, that the court was bound by the “original public meaning” of a constitutional or other legal text in making its decisions. This commitment is often referred to as originalism.

This is a critical concept which protects the integrity of the written law and of representative government. Constitutional scholars John McGinnis and Mike Rappaport helpfully explain that the original public meaning is the “expressed meaning” of a legal provision, what the drafters or framers (including those who ratify a constitution) of a law expressed through the language they adopted. They contrast this with a search for subjective intent of the people or lawmakers.

Expressed meaning is the meaning conveyed by the text itself, while subjective intent reflects what the authors personally meant to communicate. While the authors of the Constitution may have intended certain meanings, the public meaning hinges on what a reasonable, informed reader at the time would have understood. A hidden intent, no matter how genuine, does not alter the meaning expressed to the public. This distinction mirrors the difference between textualism, which focuses on the text’s expressed meaning, and intentionalism, which delves into the authors’ hidden intentions.

Judges faithfully seeking to limit their interpretation to discerning the original public meaning of a text will not be able to enact personal preferences or philosophies in place of the constituted law. It is thus also a protection of the separation of powers, reserving to those designated in the constitution the exclusive authority to make laws and to the people the ability to amend their constitution.

So, how could the Utah Supreme Court conclude that the seemingly clear reference to “legislative power,” which includes power to amend and repeal existing statutes, actually contains an unwritten limitation on that power?

It appears that the court misunderstood the task of applying original public meaning. Here is how the court described what it was doing: “Our task is to uncover Utahns’ understanding, at the time of our state’s founding, of the principles at play in article I, section 2, including specifically the Alter or Reform Clause.” The emphasis is not in the original but is added to highlight the difference between the court’s approach and originalism. The court sought to find a hidden (thus needing to be uncovered) set of principles (not the meaning, but something behind the meaning).

To fulfill the task it has set for itself, the court examines philosophical sources about the nature of the people’s power to determine how they will be governed. This gives an initial appearance of the historical analysis that might be appropriate to understand what a constitutional provision meant when enacted, but the court is not going to find the meaning of a text when it is actually looking for something behind that text.

The goal of originalism is not to understand the unenumerated meta-principles behind the constitution, but the meaning embodied in the enumeration. So, if legislative power means the authority to amend and repeal laws, it does not stop meaning that because voters or delegates might have had in mind Plato or Locke or Rousseau’s philosophies of liberty. Perhaps those motivations were there, but the subjective understanding (discerned a century or more later) cannot trump what the law actually says. Trying to discern the speculated subjective meta-principles behind a text is actually the goal of “living constitutionalism,” which is the antithesis of originalism.

Ironically, the court had resources to determine the original public meaning of the relevant constitutional principles.

For instance, understanding the people’s right to alter or reform government in Article 1, Section 2 does not have to depend on philosophy when the language of the Utah Constitution itself provides clarity. It enumerates multiple ways of protecting the right: a process for amending the constitution, provision for electing legislative representatives, and voter initiatives and referendums. These processes supplement one another so that if initiative supporters don’t like changes made by the Legislature, they can put in place new legislators through elections or repeal a legislative bill through referendum.

What the constitution does not enumerate is supreme court oversight of the Legislature’s use of its inherent legislative power. It also does not enumerate a right of initiative supporters to have their work remain sacrosanct. Interestingly, there are state constitutions that do just this. California, for instance, gives voters a veto of legislative amendments to initiative provisions. The Utah Supreme Court noted other states with enumerated limitations on legislative amendments in the language of their constitutions but concluded that the absence of these in Utah’s constitution was irrelevant.

For another example, as noted above, the court itself accepted that the normal meaning of “legislative power” in Article 4, Section 1 includes the ability to repeal or amend statutes. The court does not anywhere point to historical sources suggesting that the framers or ratifiers of the Utah Constitution had a different understanding of legislative power than the one noted in current dictionary definitions. There is also no historical evidence in the court’s decision that the Utah Constitution was understood to change the meaning of legislative power.

Interestingly, in 2012 the Utah Supreme Court quoted an Oregon Supreme Court decision which said “that laws enacted by initiative ‘may be amended or repealed by the Legislature at will.’” The Utah Supreme Court decision from July of this year dismisses this quote as dicta (observations not strictly required for the court to make its decision). That might be true of the 2012 decision, but it is pretty good evidence of how the phrase “legislative power” would have been understood in a state constitution roughly contemporaneous with Utah’s adoption of the initiative process. (The July decision notes other examples but explains these away – perhaps because they show that at the time, the adoption of an initiative process was not understood as changing the nature of legislative power.)

The 2012 decision includes an important caution that the initiative power

cannot be left to the whims of a doctrine whose invocation turns on the discretionary decrees of the judicial branch. Of all the branches of government, we are least suited to decide on the wisdom of allowing the people to supplant their representatives in a particular field of regulation. We are the least representative branch of government. There is a troubling irony in our making discretionary calls on the propriety of acts by the ultimate repository of regulatory power.  We must assure that our decisions on such vital matters are dictated by law, not by our individual preferences.

The good news, illustrated by the contrast of this opinion with the court’s decision in July, is that misunderstandings can be corrected. The Utah Legislature has the constitutional responsibility and authority to set the rules for who serves on the commissions that limit who the governor can nominate to the state judiciary, and the Utah Senate has the constitutional responsibility of voting to confirm or reject judicial nominees and thus can appropriately ensure that nominees understand the court’s role.

Future cases will allow refinement and should allow the court to return to a more circumspect conception of its power. Doing so would be a far better protection of our constitutional system than attempts to secure the “right” result in specific cases.