Daniel J.H. Greenwood

Visiting Professor of Law

A.B., Harvard College
J.D., Yale Law School
E-mail: Daniel.Greenwood@hofstra.edu

Daniel J.H. Greenwood

Utah's Constitution:  Distinctively Undistinctive

by C.J. Christine Durham, Daniel J.H. Greenwood & Kathy Wyer

in: George E. Connor & Christopher W. Hammons (eds.), The Constitutionalism of American States (University of Missouri Press, forthcoming 2006)

Utah has a relatively homogeneous population by comparison with most American states, much of which belongs to a distinctive church – the Church of Jesus Christ of Latter-day Saints (L.D.S. or Mormon Church)[1] – with morés and origin stories that, to some degree, express the normative and historical characteristics that distinguish peoples.  One strand of Mormon historiography, for example, portrays the history of Utah as one of settlement by the Mormon people fleeing persecution in the United States followed by extensive legal and some military tension with the federal government.[2]  Distinctive Mormon religious and cultural features continue to be influential in the state’s day to day politics.  For example, the fact that Church members tithe to support Church religious, educational and welfare activities gives Church members additional expenses, while the fact that they commonly have large families gives the state a distinctive age structure, with more children per taxpayer than any other American state.[3] As a result,Utah’s taxpayers sometimes have more needs and fewer resources than is typical.

In addition, for the last several decades, Utah statewide politics have been dominated by a single political party.  Salt Lake City, the state’s capital and largest city, however, is an exception both demographically and politically. Although it is the headquarters of the L.D.S. Church, its population is more religiously and ethnically diverse and its voting patterns are more liberal than in other parts of the state.  As a result, the disproportionate influence of rural voters, limited in most states by the United States Supreme Court’s one-person one-vote cases,[4] remains strong in Utah as political power is retained by the statewide majority outside the capital while the Salt Lake City population wields less influence in state government through its minority party representatives.

The distinctiveness of Utah as a state does not at first glance appear to find expression in the Utah Constitution, the text of which reflects the special history of Utah mainly negatively, in the various concessions the Mormon leaders of the original territory made in order to win statehood.  These include the state’s name, which derives from the name of a local Indian tribe rather than the Mormon name for the region (Deseret), and most importantly, for purposes of gaining statehood, the Constitution’s Ordinance, which purports to “forever prohibit[]” “polygamous or plural marriages.”  (Article III, Section 1)  

Even the compilation method of the Utah Constitution lacks distinction; Utah, like other states that entered the union in the late nineteenth-century, adopted many of the provisions of its original 1896 constitution from those of its sister states.  One commentator has accordingly concluded that "it is impossible to say that the Utah Constitution . . . was drafted by Utahns for Utah."[5]  As this author acknowledges, however, Utah's 1896 constitution was unique, if not in the text of its provisions, then as the product of Utah's "unusual history and experience" in struggling to become a state and to draft an acceptable statehood charter.[6]

I.  Background:  The Struggle for Utah’s Statehood and Constitution

The nearly fifty years from Congress's designation of a Utah Territory in 1850 (Organic Act , ch. 5, 9 Stat. 453 (1850)) to its authorization of Utah's statehood in1894 (Enabling Act , ch. 138, 28 Stat. 107 (1894)) saw a series of disputes between the local population and the federal government.  The experience of this prolonged controversy and the ultimate necessity of the territory’s achieving some manner of reconciliation or accommodation with the nation as a whole in order to gain entry as a state resulted in a state constitution that was intentionally aimed at defining a governing body and its participants in a way that would not only include the population that was already present but also assure potential immigrants, as well as the federal government, that Utah was mainstream America.  At the same time, the ongoing existence of the L.D.S. Church as a decision-making and service system for its members has continued to demonstrate that a seemingly run-of-the-mill Constitution is entirely compatible with a quite unusual polity.[8]

The members of the L.D.S. Church who originally settled in the Salt Lake valley in 1847 had in fact fled to Mexican territory in order to escape the state regimes of New York, Ohio, Missouri, and Illinois.  In the early years, the Mormon Church understood itself not only as a faith community but as a national community with a distinctive history and communal character.[9]  At the beginning, Mormons experimented with creating a distinctive language, alphabet and legal system to emphasize their separation from American norms in their new “State of Deseret” and maintained extensive communal economic enterprises.[10] Even after these experiments were largely abandoned, the L.D.S. community maintained a sense of itself as a self-governing community with a shared history and mythology different from its neighbors.[11]

After Mexico ceded territory that included the Salt Lake settlement to the United States in 1848, the community determined that the best way to preserve its autonomy was to form its own state government.  Over the next thirty-nine years, six separate attempts to draft a state constitution were rejected by the federal government.  In contrast to the early Mormon experiments with forms of church-based governance, hostility to law and collective (or church) ownership of enterprise (which continued in various forms for most of the territorial period),[12] the various draft constitutions show little originality.  As one commentator wrote, “although the social development of the Mormons varied from the usual cultural patterns, their political development [as reflected in their proposed constitutions] tended to parallel that of the rest of the nation.”[13]  Perhaps the most distinctively particularistic feature of the early attempts was the name of the proposed state, Deseret, taken from Mormon scripture.  By the sixth round, in 1882, the convention gave up, accepting that the state, like the territory, would be named after a local Indian tribe, the Utes.[14]

From the earliest drafts, the proposed constitutions are most notable in their conformity to existing state constitutional norms; they simply ignore most of the distinctive Mormon institutions of the territorial period.  There is no mention of the famous general assembly of the “Ghost State of Deseret,” which had first convened in anticipation of the federal government's acceptance of Utah's third draft constitution in 1862 and continued meeting after that constitution failed and Utah remained a territory rather than a state.[15]  The Ghost assembly convened for several days each year for six years to "reenact[] in behalf of Deseret the laws passed for the Territory of Utah." [16]  There is no discussion of distinctive Mormon economic institutions, including church or cooperatively run irrigation projects, mills, land distribution and city planning, or the communal “United Order” movement in which L.D.S. members were encouraged to “consecrate” their property by turning it over to communal authorities.  Similarly, the proposed constitutions do not reflect in any obvious way the Church's historical antipathy toward being bound by the common law.  Although Mormons maintained distinctive court systems and procedures for the entire pre-state period, these institutions are not mentioned in the constitutions.[17]

The federal government remained unappeased by the unexceptional character of these proposed constitutions, however, in the face of national hostility towards the Mormon practice of plural marriage, or polygamy, which emerged as the primary obstacle to statehood.  Only after the L.D.S. Church officially disavowed the practice in 1890, in the face of federal actions to confiscate Church property and to divest Church members who practiced or espoused polygamy of various political rights, did Congress finally authorize the constitutional convention that would draft what became Utah's 1896 constitution.

By that time, the local population itself had also changed.  While new Mormon converts  had continued to settle in the territory, a substantial number of non-Mormons had as well, though the latter remained a minority.  The divide between the two groups was expressed through both economic and political competition, with non-Mormons traditionally opposing statehood out of fear of the Church's dominance.  By the time of the 1895 constitutional convention, however, all parties recognized the necessity of cooperation, both in order to succeed in the final task required to achieve statehood and in order to bring prosperity to the new state.  The 107 delegates to the convention included not only prominent L.D.S. leaders but twenty-nine non-Mormons, or “gentiles,” one of whom was a Jew.[18]

II.  The Themes of Acceptance and Inclusiveness Expressed in Utah’s Constitution

Thus, while Donald Lutz has suggested that all state constitutions seek to create or define a people, the 1896 Utah Constitution may be considered one of the more intentional attempts to do so.  Of course, like all American states, Utah lacks certain basic prerequisites for defining a people.  It lacks control over its immigration policy and so cannot control the composition of its citzenry.  Just as important, American norms of governmental neutrality leave states with only limited control over the processes of cultural production that differentiate one people from another and the extent to which a governing group can use governmental power to impose its cultural norms (including its views of history, language, behavior) on all inhabitants of the polity.  Still, Utah’s relative isolation, its unusually uniform population in the early years, the Mormon population’s sense of itself as a quasi-national community with a distinctive history of persecution and success, and the state’s own self-conscious struggle for self-realization make the Lutz framework unusually appropriate.

Two concerns were prominent in the minds of the delegates and, to a large extent, remain manifest in the resulting text as it continues to exist today.  The first was the desire to ensure Congress's acceptance of this seventh draft of a Utah constitution and thus bring to an end the long wait for statehood.  The federal Enabling Act for Utah had specified that the new state constitution include certain provisions that would be "irrevocable without the consent of the United States," including a provision "[t]hat polygamous or plural marriages are forever prohibited."[19]  Article III of Utah's constitution for the most part simply incorporates the language of the provisions as set forth in the Enabling Act.  In debating whether the Enabling Act actually required that criminal penalties be imposed on the act of polygamy, the delegates concluded that they would meet federal requirements by adopting the federal language stating that "polygamous or plural marriages are forever prohibited."[20]  The question of whether this was sufficient arose again when the delegates reached the provision ensuring that the territorial laws then in effect would remain in effect at statehood.  Responding to some delegates' concern that the territorial law criminalizing polygamy was preempted by a federal statute and was thus invalid, the convention inserted the statement that the law that "defines and imposes penalties for polygamy[] is hereby declared to be in force in the State of Utah."[21]  (Article XXIV, Section 2)

Aside from adhering to the Enabling Act's specific requirements, the delegates also relied on the principle that language imported from other states' constitutions, which Congress had already approved, would serve as a safe harbor, avoiding any potential for federal criticism.  Such borrowing "seemed reassuring, not a sign of lack of creativity."[22]  Thus, much of the 1896 Utah Constitution was taken from other states.[23]  The statement in Article I, Section 24 that "[f]requent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government," for example, was copied from the Washington constitution.[24]

The delegates' second major concern in drafting the 1896 Utah Constitution was to promote an aura of inclusiveness.  They sought not only to further ease the divide between Mormons and non-Mormons already resident, but also to reassure those contemplating settlement in Utah that they could comfortably live and do business there. The desire to promote the new state as an attractive destination for those who could contribute to its economic prosperity was common in the west.  Utah's concern, however, was particularly acute given its negative national image throughout the era of controversy over polygamy and church control.  Thus, while the Mormon people's desire for statehood may have originally been motivated in large part by a desire for autonomy, the years of struggle ultimately led to a genuine effort to join the mainstream.  While the extent to which the inclusiveness expressed in Utah's Constitution has been realized in state politics has been a subject of some controversy, there is no question that the constitutional ideal remains of considerable significance.  Although the L.D.S. Church has occasionally wielded political influence overtly, these occasions have been quite rare, leaving the question of why the state has attained such political uniformity a matter of speculation. While the constitution is to an extent responsible for structuring political debate, for example through winner take-all elections and electoral boundaries that tend to increase the power of local majorities and preclude serious discussion of issues that larger state-wide minorities might be able to put on the table, there is little evidence available, in the Proceedings of the constitutional convention or elsewhere, that convention delegates who were Church members deliberately set out to construct a constitution that would facilitate Church domination.

Not surprisingly, in light of the polygamy controversy, the issue of freedom of religion and conscience received attention in the 1896 Constitution, even beyond the requirements of the federal Enabling Act.  The standard features of the American political theory of limited government offered a path to compromise the competing goals of autonomy and inclusiveness that the Utah delegates adopted apparently without controversy.  As one author has observed, "[a]lmost every imaginable protection for religious freedom and injunction against the union of church and state has been included" in Utah's constitution,[25] ranging from the guarantee of the right "to worship according to the dictates of [one's] conscience[]" (Article I, Section 1), to the prohibition of religious tests for admission in public schools (Article X, Section 8) and of public aid for the support of church-controlled schools (Article X, Section 9).  Tellingly, the Utah Constitution is the only state constitution to explicitly forbid "any church [from] dominat[ing] the State or interfer[ing] with its functions."[26]  (Article I, Section 4)  Further, the delegates' debates clearly indicate that nonreligious belief systems are included within the understanding of freedom of conscience.[27]  The Utah Supreme Court has interpreted the state constitution's religious freedom and freedom of conscience provisions, in light of Utah's history, as evidencing a strict policy of neutrality between religion and nonreligion.[28]  This perhaps reflects an ongoing desire to appear all-inclusive and mainstream even as the relationships between state and church, the L.D.S. religion and minority religions, and religion and non-religion remain relevant to the state’s politics.   

Other indications of the delegates' intent to make the state attractive to potential settlers appear in the debates over the education and corporations articles.  In both of these articles, the desire to promote the state's image had to be balanced against practical concerns about available state resources.  In regard to education, one delegate called the provision ensuring public funding of the common schools (Article X, Section 3) "an advertisement worth more to Utah than all the money that has been expended in advertising this Territory in the last year."[29]  However, the delegates ultimately acknowledged that the state university and agricultural college could not afford to operate without charging tuition, and state-funded high schools were not provided for in the Education Article until 1906.[30]  A surprisingly long debate occurred over the location of the state university and agricultural college,[31] resulting in their remaining in separate locations rather than merging into a single institution.  (Article X, Section 4).  Both the state university and the agricultural college were granted “perpetuation” of all their existing “rights, immunities and franchises,” which arguably included a large degree of autonomy and academic freedom from legislative interference.[32]  Similarly, the original Article X, Section 9 (repealed 1986) barred legislative interference in textbook selection (more likely to preserve school board than teacher autonomy). 

The Corporations Article (Article XII), which was substantially eliminated in 1993, recognized the state's desire to encourage industrial development while also reining in the corporate power emerging in the late nineteenth century.  Its detail reveals the delegates' concern that "future legislatures . . . be able to deal with the powerful corporations they hoped to attract."[33]  The resulting "balancing act"[34] included provisions mainly reflecting struggles from earlier in the nineteenth century elsewhere in the United States.  Thus, we find a ban on special incorporation acts and several other forms of special acts, which had been the source of much corruption in mid-nineteenth century legislatures.[35]  Two provisions react to specific United States Supreme Court decisions:  one responds to the Dartmouth College[36] case, by explicitly retaining for the legislature the power to modify corporate charters,[37] and another extends the logic of Charles River Bridge[38] by barring irrevocable franchises.[39] Reflecting the mid-century railroad financing crises, in which local governments had competed for railroad lines by extending credit and financing with disastrous consequences, the Constitution bars all lending of public credit for private undertakings.[40]  A residual general suspicion of the corporate form can also be seen in provisions designed to limit the life of a corporation,[41] limiting the scope of the internal affairs doctrine,[42] limiting the ability of corporations to evade liability by certain formal transactions,[43] providing for double liability for bank shareholders,[44] and constitutionalization of the ultra vires doctrine, meant to restrict corporations to limited purposes.[45]  The convention also debated, but did not adopt, a general bar on “bounties” or other inducements to attract industry.[46] 

Presaging Utah’s later labor struggles (International Workers of the World leader Joe Hill was hanged in Salt Lake City in 1915), the original constitution's inclusiveness extended to the working class.  The constitution  included specific bars on the use of Pinkertons as strike breakers and blacklists of union organizers[47] and (contra Lochner[48]) provides that regulation of the conditions of labor is within the police power.[49]  Finally, the Constitution contained both a general provision barring “combinations” to control the price of agricultural, commercial or manufacturing products (but, in contrast to the common law, not workers),[50] and specific rules to limit railroad exploitation of their customers.[51]

A further signifier of the Utah Constitution's self-conscious inclusiveness is the absence of a provision prohibiting the sale or use of alcohol.  Though Mormon doctrine prohibited alcohol, and some delegates supported including the prohibition in the 1896 constitution, the convention ultimately rejected the idea, partly out of the desire to stimulate local sugar production, and partly out of the recognition that prohibition would simply be impracticable.[52]

Other provisions of the 1896 constitution firmly situate it in its time and place.  Article XVII, Section I, confirming existing individual water rights, provided that the rights are "for any useful or beneficial purpose," was the product of extensive controversy over the relationship between private property interests and the recognition of water as a limited resource in the West.[53]  The requirement in Article XI, Section 6 that municipal corporations preserve waterworks and water rights for the benefit of their inhabitants demonstrates the same concern.  Provisions addressing the protection of state forests (Article XVIII, Section 1) and the holding of public lands in trust for the people (Article XX, Section 1) similarly have particular relevance in a Western state where a high percentage of the territory remains unpopulated, undeveloped and under federal or state control.  The progressive values evident in many state constitutions of the late-nineteenth century are apparent in the Labor Article (Article XVI), in the already-discussed Education Article (Article X) (which originally included a provision requiring teaching of the metric system (Article X, Section 11)), and in provisions, now repealed, that required establishment of state-funded "[r]eformatory and penal institutions, and those for the benefit of the insane, blind, deaf and dumb, and such other institutions as the public good may require"  (Article XIX, Section 2 (repealed)). 

In one highly significant aspect, the original Utah Constitution varied from the dominant spirit of its times.  After the “longest fight in the convention” and despite fears that it might endanger Congressional approval,[54] women’s suffrage won.  Moreover, using text borrowed from the Wyoming constitution, the 1896 Constitution included one of the earliest guarantees of equal rights for women (Article IV, Section 1), providing that “male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.”[55] Unfortunately, the clarity of this language was promptly marred by a 1915 Supreme Court decision holding that, the words notwithstanding, this provision did not bar a road poll tax that applied only to men, because “[s]uch a [differential] classification [of men and women] has … always been made and enforced from time immemorial, and … it is a natural and proper one to make” not barred by the express language of the Constitution.[56]   The Constitution also omitted a literacy requirement for enfranchisement,[57] in contrast to other states that were beginning to use this as a device to exclude immigrants and former slaves from political participation. 

III.  Defining Governmental Structure

Of course, in addition to its role in ensuring statehood and in promoting the concept of Utah's inclusiveness, the Utah Constitution also establishes the structure of state government.  It is in this regard that one scholar criticized the original 1896 constitution as exhibiting a general hostility towards the authority and role of state government.[58]  Of particular concern was the dispersion of executive powers among an "executive 'troika'"--the governor, secretary of state, and attorney general--who together constituted a Board of Examiners, responsible for examining all claims against the state.[59] (Article VII, Section 13 (repealed))  Other executive tasks were performed by other specifically-empowered boards comprised of the governor and other executive officials.  Most of the provisions establishing such boards, with the exception of the Board of Pardons and Parole (Article VII, Section 12), were repealed in 1981, with further amendments occurring in 1993.  The executive branch retains its decentralized character, however, particularly due to the status of the state attorney general, a separate elected executive official vested with the role of "legal adviser of the State officers."[60]  (Article VII, Sections 1, 16)

The Legislative Department Article (Article VI) establishes a part-time legislature that meets for a limited period beginning in January, originally for sixty days every two years, and currently for forty-five days every year.  (Article VI, Section 2, 16)  In keeping with the wariness of the legislature evidenced by this short term, the restrictions on special legislation  (Article VI, Section 26), and the requirement that each bill contain only one subject clearly stated in the title (Article VI, Section 22),  the Constitution was amended in 1900 to provide for initiative and referendum (Article VI, Section 1).[61]  The article sets forth procedural requirements for election and service of legislators (Article VII, Sections 3-8, 13), the passage of legislation (Article VII, Sections 11-12, 14-16, 22, 24-26) and the impeachment of executive officers (Article VII, Sections 17-20), and imposes rules for setting legislators' salaries (Article VII, Section 9).  Originally, it provided for a decennial census and redistricting, but apparently this requirement was simply ignored, and it was eventually repealed.[62]  This Article specifically prohibits the legislature from authorizing "any game of chance, lottery or gift enterprise" (Article VI, Section 27), and Utah remains one of only two states (the other being Hawaii) that retains such a restriction.[63]

The Judicial Department Article (Article VIII) provides for a supreme court and district courts, whose members were originally to be elected, but, since 1985, have been appointed by the governor and then retained through retention elections every ten years (for supreme court justices) or shorter terms (for other judges).  (Article VIII, Sections 8-9).  Along with the change in the method of choosing judges, the 1985 revision established a judicial council with administrative authority for the state courts (Article VIII, Section 12), and a judicial conduct commission to handle disputes over judges' misconduct (Article VIII, Section 13).  Perhaps the most interesting clause regarding the courts appears not in this article but in the Declaration of Rights: the Open Courts Clause (Article 1, Section 11), which provides an open textured right of redress of injury that has generated much judicial interpretation. 

Aside from the establishment of certain public educational institutions in Article X, the state's governmental framework is made complete with the provision in Article XI for counties (Article XI, Sections 1-5), municipal corporations (Article XI, Section 5), special service districts (Article XI, Section 7), and other governmental entities, as established by the legislature (Article XI, Section 8).  The constitution puts most of the responsibility for imposing specific requirements on such entities in the hands of the legislature.

IV.  Amendments and Implications for Utah's Constitutional Future

The Utah Constitution provides that it may be amended when two-thirds of each legislative house vote in favor of the amendment, and the change is then approved by a majority of voters in the next election.  (Article XXIII)  In addition, the Utah Legislature has established a Constitutional Revision Commission for the purpose of advising the Governor and the Legislature regarding proposed constitutional amendments.[64]  Though Utah has not been as active in amending its constitution as some states, a number of changes have been noted above.  Some additional amendments over the past hundred plus years are of particular interest, with some of them remaining the subject of considerable controversy. 

Several amendments have resulted from the practice of constitutionalizing fiscal rules.  The original Constitution contained specific dollar denominated limits on debt and legislative pay which eventually became intolerable.[65] 

In contrast, the original provisions on Revenue and Taxation (Article XIII) were quite simple, but have been repeatedly amended to dedicate tax revenue streams to particular purposes and to constitutionalize various exemptions[66]  For example, the gasoline tax is to be used entirely for highways, driver education and traffic law enforcement and apparently may not be used even for other transportation needs or mitigation of the detrimental effects of over-reliance on automobiles, while the income tax is dedicated entirely to public and higher education (Article XIII Section 5).

For the last third of a century or more, several amendments to the Utah Constitution have reflected national right-wing political trends with little distinctive Utah or Mormon content.  Perhaps the best examples of this tendency are the gun control, victims rights and heterosexual marriage amendments.

In 1983, the provision guaranteeing the right to bear arms, Article I, Section 6, was amended to make explicit that the right is an individual right and not a right of the militia or the people collectively.[67]  The amendment appears to have been a reaction to a Utah Supreme Court decision adopting the mainstream view of the US Constitution’s Second Amendment,[68] and to reflect to some degree the concerns and language of the national gun rights movement under the influence of the NRA.[69]   Interestingly, although the language of the amendment defines the right in extremely broad language – the “individual right ... to keep and bear arms for security and defense ... as well as for other lawful purposes shall not be infringed,” its operational language makes the amendment entirely precatory.  “[N]othing herein shall prevent the legislature from defining the lawful use of arms.”   Thus, the import of the provision appears to lie largely in the hands of the Utah legislature. Given the Amendment’s conscious replication of the US Constitution’s “keep and bear arms” language, originalist interpreters may also conclude that the “arms” in question are only those that would have been held by ordinary citizens in the colonial period. 

In 1992, the bulk of the original article XII governing corporations was repealed, replaced with verbatim adoption by statute of the Revised Model Business Corporations Act, a national document which shares little of the original Utah constitution’s fears of corporate political dominance or economic abuse. 

In 1994, a Victim Rights Amendment was added, again as part of a national movement to assure crime victims the right to be present and heard at felony trials and to assure that character evidence is admissible in non-capital sentencing proceedings. 

The Utah definition of marriage amendment similarly reflects national movements rather than a particular Utah issue.  In 2004, Utah and many other states changed their constitutions to ward off a feared threat that courts would require recognition of gay marriage.  The Utah legislature and voters added section 29 to Article I’s Declaration of Rights, stating that

(1)  Marriage consists only of the legal union between a man and a woman.

(2)  No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

The effect of the new Section 29 is not yet clear.  In particular, the meaning of the second clause was hotly disputed during the enactment campaign, with proponents contending that it was merely meant to prevent “marriage under another name” and opponents suggesting that it might bar equal treatment of unmarried couples or even require eliminating well-established legal rights.  Predictably, following enactment, positions have shifted.  As this chapter is written, an out-of-state anti-homosexual group is seeking to use clause 2 to challenge the City of Salt Lake’s policy of granting employment benefits to domestic partners of employees, even if not married or eligible to be married.  If Section 29 is held to have substantive meaning, it will certainly be challenged as a violation of the Federal equal protection clause, since it would then deny legal privileges to some citizens that are granted to others with no obvious basis other than invidious discrimination. 

Regardless of the legal effects of Section 29, however, it clearly marks a dramatic step in the ongoing American project of creating an inclusive, democratic polity.  For the first time since the demise of the anti-miscegenation laws, some American states, including Utah, are explicitly declaring the policy of the state to be to bar certain citizens from marrying others and explicitly taking a stand in favor of maintaining long standing patterns of discrimination against disfavored groups of citizens.  Ironically, Utah's adoption of this trend indicates a reversal of the 1896 constitution's emphasis of inclusiveness even as it continues Utah's efforts to join the mainstream.  This new constitutional provision also happens to coincide with the official position of the L.D.S. Church.  Meanwhile, at the same time gay marriage has become an issue, the recent renewal of criminal prosecutions of polygamists[70] has revived the question of what the Utah Constitution's religious freedom guarantees mean when juxtaposed to the Ordinance's explicit "prohibit[ion]" of polygamy.[71]  It seems that Utah's distinctive history continues to play a role in shaping its otherwise undistinctive constitution.

[1] The percentage of the population that is L.D.S. has dropped rapidly in the last several decades and is now thought to be about 62%.  Salt Lake Tribune, July 24, 2005.

[2] See, e.g., Edwin B. Firmage & Richard C. Mangrum, Zion in the Courts: A legal history of the Church of Jesus Christ of Latter-day Saints, 1830-1900 (U of Illinois Press: 1988), ch. 8 (The War on Mormon Society).  In the “Utah War” of 1857-8, the United States responded to reports that the Mormons were in “substantial rebellion” by sending in armed forces, accusing Mormon leader Brigham Young of treason and removing him from his position as territorial governor.  The Nauvoo League, a Mormon force that also served as the territorial militia, fought back, burning two forts and supply trains.  Ibid. p. 244.  Later, the Federal government launched a campaign to eradicate polygamy and reduce the power of the L.D.S. church that by the 1880s included barring polygamists and their supporters from serving on juries, holding public office and even voting.  Ibid. p. 226.  L.D.S. leaders were imprisoned for polygamy under evidentiary rules that apparently allowed conviction based on reputation with little more, and, in the final stages, the Church was disincorporated and threatened with expropriation of most of its extensive property holdings.

[3] See Pam Perlich, Population Growth in Utah: 1970-1995, available at http://governor.utah.gov/dea/Library.html.  According to the 2000 U.S. Census, 32.2% of Utahns were under 18, compared to 25.7% in the nation as a whole.  Utah’s 2002 birth rate among women between the ages of 18 and 44 was 90.6%.  Nat’l Center for Health Statistics, http://www.cdc.gov/nchs/births.htm.

[4] Utah was no exception to the usual American practices.  The original Utah Constitution provided for excessive representation of rural counties, and the unfairness grew worse as the population urbanized and the legislature failed to redistrict.  Redistricting occurred in Utah only twice before the courts took action in 1965.  Jean Bickmore White, Charter for Statehood: The Story of Utah’s State Constitution (University of Utah Press: 1996), p. 96.  The state constitution was amended to conform to Federal constitutional requirements in 1988.  Ibid. p. 97.  Rural counties are still given formal overrepresentation in the current rules regarding initiatives and referenda, although this is probably less significant than the power that accrues as a result of single party domination.

[5] John J. Flynn, Federalism and Viable State Government--The History of Utah's Constitution, 1966 Utah L. Rev. 311, 324.

[6]Thus, the Utah Constitution may be an example of the phenomenon explored in Jorge Borges’ short story, “Pierre Menard, Author of Don Quixote,” in which a modern author creates a new version of Don Quixote,  dramatically different from the original even though the words are identical. Jorge Luis Borges, Ficciones (Anthony Kerrigan trans., 1962).

[8] This was so to a degree even before the territory was forced to succumb to federal demands.  Indeed, the first proposed Constitution of the State of Deseret, written in 1849 “while the territory was governed as a theocracy,” guaranteed freedom of religion in familiar American strong terms.  White, Charter for Statehood, p. 21.  At the time, the Mormons referred to their polity as “The Kingdom of God and His Laws with the Keys and Powers Thereof, and Judgment in the Hands of His Servants, Ahman Christ”and it was governed by a Council of Fifty, understood to be the “political arm of the Kingdom of God when the Lord finally established his Kingdom on Earth.”  Firmage & Mangrum, Zion in the Courts, p. 7.

[9] See generally Firmage & Mangrum, Zion in the Courts. 

[10] Firmage & Mangrum, Zion in the Courts [page #?]; David L. Bigler, Forgotten Kingdom: The Mormon Theocracy in the American West, 1847-1896 (Arthur H. Clark Co. 1998), p. 56. In the early years of settlement in Utah, Mormon leaders preached economic self-sufficiency, going so far as to organize a boycott of all “gentile” (non-L.D.S.) merchants in 1868 and the creation of a church-controlled alternative, the Zion’s Cooperative Mercantile Institute that remains a significant presence in the Utah economy today.  The church and its leaders encouraged members to turn their property over to the church for collective operation, Firmage & Mangrum, Zion in the Courts, p. 317; at the peak of the “United Order” phase, some towns were entirely collectivized even to the point of common dining rooms. Ibid. p. 223. Collective control diminished in the course of the Federal anti-polygamy campaign and by 1884 many of the remnants had been spun off from the church as cooperatives, some of which remain important.  Ibid.  The Church's expansive modern social welfare operation may also be a remnant of this era.

[11] Benedict Anderson, Imagined Communites.  

[12] White, Charter for Statehood, pp. 23 (describing “Ghost Government of Deseret”—the Mormon power controlling the territory despite the official rules --  in the late 1850s),  40 (describing theocratic shadow government in Utah as late as the 1880s).

[13] Martin Berkeley Hickman, Utah Constitutional Law (Ph.D. Diss. Univ. of Utah 1954), p. 73.

[14] Flynn, History of Utah's Constitution, p. 319.  The name change was first proposed in the 1872 constitutional convention. Dale L. Morgan, The State of Deseret (1987), pp. 112-13.

[15] Morgan, The State of Deseret, pp. 96-101.

[16] Ibid. p. 100.

[17] After the Federal courts were organized in 1855, the L.D.S. Church barred members from using those “foreign” and “ungodly” courts, at least for civil actions between Church members, and instead directed Mormons to use church-based procedures emphasizing resolution of conflict through compromise (often imposed by church authorities) and enforced by disfellowship or excommunication. Firmage & Mangrum, Zion in the Courts, pp. 2, 15, 214-6, 263-7, 288.  Church courts insisted on their exclusive jurisdiction and/or supremacy until well into the 1890s and the Church did not officially recommend that members use the civil courts to collects debts until 1908.  Ibid. p. 267.  In the event of conflict between Church decisions and civil court decisions, the Church courts regularly required members to waive their legal rights and follow church rulings.  Ibid. pp. 276-8.  

Additionally, the Mormon-controlled territorial legislature created locally staffed “probate courts” (with jurisdiction extending far beyond probate) which did not follow common law procedures or precedents; these continued to be influential at least to statehood.  Ibid. p. 218. These courts abolished the forms of pleading and the formal authority of precedent, barred attorneys from collecting fees, required lawyers to present facts adverse to their client, and placed a strong emphasis on resolution of conflict through compromise rather than final adjudication; they thus resembled the Mormon Church adjudicative system more than traditional common law courts.  Ibid.  Although the probate courts formally were part of the Federal/territorial judicial system, in practice Church members were expected to take appeals to the parallel Church system.  Ibid. pp. 276-8.  

[18] White, Charter for Statehood, p. 50.

[19] Ch. 138, § 3, 28 Stat. 107.

[20] Proceedings of the Utah Constitutional Convention (1895), 1:811 (statement of Mr. Eichnor).

[21] Ibid. 2:1736-37.

[22] White, Charter for Statehood, p. 52.  That the delegates were self-conscious in following this practice is revealed in a contemporary newspaper account, quoted in White, ibid. p. 77, in which one delegate facetiously stated that if a provision were not exactly copied, "I am afraid then we should not adopt it. We must have the exact words of some state constitution."

[23] Flynn, History of Utah’s Constitution, p. 323 (citing Nevada, Washington, Illinois, and New York as the most common sources for Utah's constitutional provisions).

[24] Proceedings 1:362.

[25] Lester J. Mazor, Notes on a Bill of Rights in a State Constitution, 1966 Utah L. Rev. 326, 331.

[26] As Mazor points out, this provision is unusual in that it appears to place a direct prohibition on churches rather than imposing a limitation on governmental powers, as is customary for bill of rights provisions.  Ibid. p. 332; see  Proceedings 1:240 (statement of Mr. Kimball) (acknowledging the role of the declaration of rights as "declaring what the State can do").

[27] Proceedings 1:240 (statement of Mr. Van Horne).  The delegates also contemplated extending the prohibition on state support of religious institutions to parallel nonreligious institutions, such as those controlled by Freemasons or atheists, but ultimately rejected the idea.  Ibid. 1:245-48.

[28] Soc'y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 937-38 (Utah 1993). Of course, the constitutional language can have only limited influence on the casual thoughtlessness—generally manifesting itself in an assumption that the entire population, rather than somewhat more than half, observes L.D.S. practices—that is the main practical limit to an aura of inclusiveness in modern Utah.  Those are issues of empathy that play out in the political branches.

[29] Proceedings 1:388 (statement of Mr. Goodwin).

[30] White, Charter for Statehood, pp. 71-72, 94. 

[31] Proceedings 1:368,  2:1231, 1310.

[32] The University's constitutional autonomy is currently at issue in a case before the Utah Supreme Court, University of Utah v. Shurtleff, No. 20030877.

[33] White, Charter for Statehood, p. 74.

[34] Ibid.

[35] Article VI, Section 26 (barring special laws generally) ; Article XII, Section 1 (barring special incorporation acts).  The fear of corruption can also be seen elsewhere in the original constitution:  for example, Article VI Section 28 (originally Section 29) bars the legislature from delegating to any “special commission, private corporation or association, any power to make … any municipal improvement … to levy taxes ... or to perform any municipal function;  Article XII, Section 17 (repealed) (barring corporate officers or holders of franchise from serving as officials of municipality granting the franchise) and Article VI, Section 30 (repealed 1972), which originally barred bonuses on governmental contracts).

[36] Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819).

[37] Proceedings 2:1466-67.  While the relevant provision in Article XII was repealed in 1993, Article I, Section 23 serves the same function, stating that "[n]o law shall be passed granting irrevocably any franchise, privilege or immunity."  See Proceedings 1:366 (statement of Mr. Evans) (referring to Dartmouth College in connection with Article I, Section 23).

[38] Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Pet.) 420 (1837).

[39] Article XII, Section 11 (repealed) (franchises may be taken for public use). 

[40] Article VI, Section 29 (originally Section 31) (amended to allow universities to invest in research-based spin-offs). Cf. Hickman, Utah Constitutional Law,  p. 19 (describing 1837 crises and the suspicions of legislatures that resulted).

[41] Article XII, Section 3 (repealed) (barring legislature from extending corporate franchises).  In 1870, Utah territorial law provided for a maximum duration for a corporation of 25 years. Laws Utah 1870, p. 137; Keetch v. Cordner, 90 Utah 423, 62 P.2d 273 (Utah 1936).  In 1883, the period was extended to 50 years, Laws Utah 1880, chap. 17, p. 19; ibid. p., and in 1901, it was again extended to 100 years. Laws 1901, c. 81, id.  Perpetual duration was permitted only in 1957. 1957 Utah Laws ch. 23, section 1.  Current law provides for perpetual duration.  Ut. Stat. 16-10a-302.

[42] Article XII, Section 6 (repealed) (limiting privileges of foreign corporations to those granted to domestic ones).

[43] Article XII, Section 7 (repealed) (barring corporation from leasing or alienating any franchise so as to relieve the leased or alienated property from liabilities of the corporation).

[44] Article XII, Section 18 (repealed) (imposing double liability for bank shareholders until amendment in 1941).

[45] Article XII, Section 10 (repealed) (restricting corporations to their stated purposes).

[46] Proceedings, 899-890, 904. 

[47] Article XII, Section 16 (repealed) (barring Pinkertons); Article XII, Section 19 (amended to remove criminality) (barring blacklists); Article XVI, Section 4 (barring exchanges of blacklists).

[48] Lochner v. New York, 198 U.S. 45 (1905).

[49] Article XVI, Section 1 (legislature shall protect the rights of labor); Article XVI Section 3 (barring the “political and commercial control of employees,”  labor and child labor in mines and convict labor); Article XVI, Section6 (providing for 8 hour day on public works and permitting health and safety regulation in factories and mines).

[50] Article XII, Section 20 (anti-trust provision) (amended to include reference to “free market system,” to explicitly reference political power (as opposed to merely consumer price manipulation) justification of anti-trust laws and to remove implicit distinction between unions and producer combinations).

[51] Article XII, Section 15 (authorizing legislature to establish passenger and freight tariffs) (repealed); Article XII Section 12 (declaring railroads common carriers); Article XII, Section 13 (barring railroad consolidations); Article XII, Section 14 (assuring taxability of railroad rolling stock). 

[52] White, Charter for Statehood, pp. 80-82; Proceedings 2:1439.  Following the federal lead, a prohibition section was added to the Utah Constitution in 1919 and was repealed in 1934.  (Article XXII, Section 3 (repealed))

[53] White, Charter for Statehood, p. 78.

[54] Ibid. p. 54.

[55] It is worth noting that the Utah territory had provided for female suffrage, but this right was repealed by the federal government during the polygamy controversy.

[56] Salt Lake City v. Wilson,  46 Utah 60, 148 P. 1104 (Utah 1915).  Cf. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) (similarly using “original intent” and long-standing practices to rule that constitutional provision cannot mean what its words say).  Interestingly, the convention itself had rejected an explicit bar on “discrimination in wages on account of sex,” White, Charter for Statehood, p. 76, suggesting that the delegates as well were unwilling to confront the full implications of the general principles they wrote into law.

[57] White, Charter for Statehood, p. 57, quoting one delegate as stating, “It is bad enough to be ignorant without being punished for it.” 

[58] Flynn, History of Utah’s Constitution, pp. 324-25.

[59] Ibid. pp. 324, 317; White, Charter for Statehood, p. 63.

[60] See Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U. Fla. J.L. & Pub. Pol’y 1, 6 (1993).

[61] (modified in 1998 and 1999 to require super-majority for changes to hunting regulations).  White, Charter for Statehood, p. 52, notes that the Convention considered copying such a provision from the Swiss Constitution but rejected the proposal.  The later amendment appears similar to those adopted contemporaneously in several other US states.

[62] Hickman, Utah Constitutional Law, pp. 91-92, writing in 1954, notes that no redistricting had taken place since 1931. 

[63] White, Charter for Statehood, p. 66.

[64] Utah Code Ann. §§ 63-54-1 to -9.

[65] Original Article VI, Section 9; XIV Section 1;  White, Charter for Statehood, pp. 67, 80. 

[66] White, Charter for Statehood, p. 93.  These currently include authorization for partial or full property tax exemptions for military veterans and their widows, the poor, for agricultural land and equipment, and residential property.  Article XIII Section 3.  

[67] The prior text was: “The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law.”  The amended text states: “The individual right of the people to keep and bear arms for security and defense of self, family, others, property or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.”

[68] See State v. Vlacil, 645 P.2d 677 (Utah 1982) (holding that Utah legislature could constitutionally ban alien from obtaining arms license. 

[69] See M. Truman Hunt, The Individual Right to Bear Arms: An Illusory Public Pacifier?  1986 Utah L. Rev. 751, 752.

[70] Several small groups that are not affiliated with the L.D.S. Church continue to practice polygamy in Utah.  The number of polygamists in the state is estimated at 30,000.

[71] The Utah Supreme Court currently has before it a case that may raise this issue.  State v. Holm.