Have you read the Utah constitution, lately?

Commentaries on the Utah Constitution | Equity of Law.

When was the last time you reviewed the Utah constitution? Salt Lake Attorney Ben Lusty argues that in all the renewal of interest in the US constitution, we’ve missed the boat with state constitutions.

But this rebirth of constitutional interest ignores the state constitutions.  From this author’s own experience, political activists carry copies of the U.S. Constitution and quote verbatim (and from memory) extended passages of Article I, section 8, or the First Amendment.  The Utah Constitution (or for that matter the constitutions of the other states) remains covered in apathy, or ignorance.  And yet, it is fundamental law within our happy little republic between the mountains and valleys of Utah.

Sure you can quote whole passages of the Bill of Rights, but did you know that under the Utah constitution every able-bodied man is a member of the state militia? That Utah is “forever inseparable” from the United States?

If we live in a federalist system (and you can argue over republic or democracy with someone else), then the state is a sovereign, much as is the federal government in D.C., and as such, we ought to know what our sovereign state’s constitution says.

Read the entire post here. Read the Utah constitution here.

(h/t Equity of the Law)

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5 responses to “Have you read the Utah constitution, lately?

  1. Justice Durham of the Utah Supreme Court is a big advocate of state constitutionalism. She advocates the development of state constitutional case law through a rule of deciding issues under the Utah Constitution whenever (1) the issue is raised and properly briefed, and (2) federal and state constitutional analysis would lead to the same result.

    Furthermore, the Utah Supreme Court refuses to view the Federal Constitution as a “floor” for its analysis of the Utah Constitution. Thus, speech that may be protected under the First Amendment to the Federal Constitution, is not necessarily protected under the Utah Constitution’s Freedom of Speech Clause. This makes analytical sense, but I think it’s somewhat unusual. Owners of strip clubs found this out, to their chagrin, when they chose to challenge Utah’s so-called “nudity tax” in state court solely under the Utah Constitution, and were informed by the Utah Supreme Court that, although the Federal Constitution’s First Amendment provides protection for nude dancing, Utah’s Constitution does not.

    • Astute observation. I’ve not discussed Chief Justice Durham’s philosophy before, but I have noted that SCOTUS declined to take up the case when the “nudity tax” was appealed. https://lawafterthebar.wordpress.com/2010/10/12/scotus-upholds-strip-club-pole-tax/

      • Actually, the “pole tax” came up to the Utah Supreme Court twice. First, it was challenged solely under the Utah Constitution (probably b/c the Utah Supreme Court had previously hinted that Utah’s freedom of speech protections were *at least* as extensive as those in the Federal Constitution) The law was then challenged a second time, again before the Utah Supreme Court (somewhat inexplicably, IMHO), solely under the First Amendment to the Federal Constitution. My first comment referenced the initial decision, and I think your prior post referenced the latter.

        I thought the latest “pole tax” case had a real chance to be taken up by the SCOTUS. I suspect we’ll see a nudity taxing case taken on cert soon, because taxing nudity kind of falls within a hole in the SCOTUS’ prior “nudity cases,” which have been focused on outright public nudity bans or the zoning of sexually-oriented businesses.

    • I believe you are correct. Thanks for noticing the distinction.

      Back to the floor issue: in contrast to Utah, doesn’t California afford greater First Amendment rights than the Federal Constitution? I seem to remember a shopping center case where protesters were stopped on the grounds that the mall was private property, but the California Supreme Court granted the right to go back because malls are public forums. SCOTUS demurred to the state. A similar case in Utah was denied. Ring a bell?

  2. The California case rings a bell — I think that’s the Pruneyard decision. And my recollection of that case is similar to yours. I’m not recalling the Utah case, but my knowledge of Utah state court case law (outside of the last two years or so) is really very thin. It wouldn’t surprise me, though, if that happened.

    I think a lot of attorneys miss potential arguments by ignoring the Utah Constitution. Certain clauses get some play, like the Open Courts Clause, and other clauses in criminal cases, but aside from that, attorneys and laymen alike don’t pay much attention to our state constitution.

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