• The Utah Legislature has recently explored changes to the judicial system but the discussion over those changes has not focused on relevant concerns.
• A recent court decision striking down the Utah Fits All scholarship program which employed extra-constitutional “principles” and subjective intent of voters to override constitutional text points to the real concern.
• The Legislature is reasonably concerned that allowing policy considerations to become part of judicial decision-making will erode the principles of accountability to voters and separation of powers.

​This year, the Utah State Legislature attempted to make changes to the state’s judicial system. Some Utahns wondered why – and the governor even vetoed a related measure. But a recent decision by a trial court in Utah helps demonstrate the urgent need for more care in how state courts apply constitutional provisions.

The decision comes in a challenge to the Utah Fits All scholarship program created by the state Legislature in 2023, which provides funds to lower-income families to meet educational needs outside the public school system. The Utah Education Association sued, arguing that the Utah Constitution only allows the Legislature to provide support for education within the public school system.

On April 18, a state district court accepted the UEA arguments. The court concluded that the “original public meaning” of the Utah Constitution’s provisions on the creation of public schools and the use of income tax revenue could be determined by the voters’ intent in approving the constitutional text and by “principles” behind the text. In fact, at one point, the court said that if it was “constrained by the plain language” of the income tax provision, that language would support the constitutionality of Utah Fits All. But the voters could not have intended that result, says the court, based on statements made in the debate surrounding the vote for approval. In other words, the court believes the true meaning is at odds with the text. This creates serious problems for jurisprudence. It’s also understandable given recent Utah State Supreme Court decisions.

In deciding that the state cannot provide educational assistance to parents outside of traditional public schools, the court looked to prior state Supreme Court decisions, particularly a case in which the court suggested the Utah Constitution may create a right to abortion. The state court’s reasoning, however, was deeply mistaken.

First, it is a truism that constitutions provide principles for delegating authority to government and protecting rights, rather than articulating exact details that the people through their representatives create via the lawmaking process. However, that does not mean that there are aspirational ideas (a higher unwritten law) above the constitution’s actual text that courts can use to supplement or modify the clear language of the document.

Second, the court’s reliance on the subjective intent of voters is completely misplaced. It is the words of our laws, particularly our constitution, that bind us. Laws are drafted and approved by many different people; in the case of constitutional provisions, they are ratified by thousands of individual citizens.

As a practical matter, it is impossible to know which personal motivations of individuals involved in the process reflect the actual, subjective, meaning of a document.

Some people who voted for the constitutional language that allows the Legislature to use income tax revenues to support people with disabilities and children in the state would surely be comfortable with the scholarship program at issue in this case, while some others may not be. Looking at statements of individual legislators, or press coverage of debates, or arguments made by supporters and detractors are not nearly as valuable as looking at the words the people of the state added to their constitution.

It is ironic that the court refers to the proper aim of courts, determining the law’s “original public meaning,” but applies a zombie version of that principle by imposing on the constitution’s text, a post-approval (not original) hidden (not public) meaning at odds with the actual words.

Speculation about voters’ or legislators’ motives is at best unnecessary and at worst, a usurpation of authority from the people and their representatives. There may be instances where some particular words or phrases could have different meanings or were approved so long ago that we would need to look for legislative discussion or historical usage for guidance. But the words “to support children” (added to the constitution in 2020) are reasonably clear.

The fact that Utah courts believe they need to look beyond the constitution for meta-principles that allow judges to create policies not clearly established in the document goes to the heart of judicial and legislative power, and the very nature of a constitution and representative government. That is why the Legislature is right to be concerned.

The challenge to the Utah Fits All will be appealed, and the abortion case is still at an early stage. So, there is plenty of time for the courts to make clear that they understand (1) that the laws enacted by the people and their Legislature, not the political and policy views of some participants in the political process, are binding, and (2) that the courts do not have a role in establishing the public policy of the state by trying to implement higher principles above the constitutional text. Doing so is essential to preserve the rule of law and retain our constitutional system. When this case reaches the Utah Supreme Court, the justices should rule accordingly.