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2014 Utah L. Rev. OnLaw 1 (2014)

handle is hein.journals/utlronla3 and id is 1 raw text is: SOME THOUGHTS ON UTAH ORIGINALISM: A RESPONSE Jeremy M. Christiansen* I. INTRODUCTION Scholars have spilt a lot of ink debating the merits of the interpretative philosophy known as originalism.1 According to this interpretive theory, generally speaking, the objective meaning of constitutional language at the time that language was ratified governs its application in subsequent cases.2 Although debates over the propriety of originalism generally revolve around its application to the United States Constitution,3 it is no surprise that the debate has begun to * © 2014 Jeremy M. Christiansen. Law Clerk to Justice Thomas R. Lee, Utah Supreme Court; J.D., S.J. Quinney College of Law, University of Utah. Many thanks to Professor Troy L. Booher for helpful critiques and to the Utah Law Review staff for their hard work and dedication to legal scholarship. The views expressed in this Article are my own and do not reflect the views of my current employer or the Utah Supreme Court. 1 For an introduction to the modern rise of originalism, see Steven G. Calabresi, A Critical Introduction to the Originalism Debate, 31 HARV. J.L. & PUB. POL'Y 875 (2008). As typical examples of arguments in favor of originalism, see ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); KEITH WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999); John 0. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 31 HARV. J.L. & PUB. POL'Y 917 (2007); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989). 2 See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 78-92 (2012). There are, of course, several variations on originalism including original intent originalism, original public-meaning originalism, and most recently original methods originalism. See generally JOHN 0. MCGINNIS & MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION (2013) (providing a new normative defense of originalism and arguing that the Constitution should be interpreted according to the rules of construction and interpretation widely used at the Founding). Although many of this Article's claims about originalism in Utah are drawn from state court language invoking the intent of the framers, and there are serious reasons to doubt the soundness of an approach centered on generalized notions of intent, there are good reasons to see these decisions as wholly consistent with the more theoretically defensible approaches to originalism like public meaning. In all events, this Article will not strive to differentiate the two. Rather, this Article will address the more over-arching questions of whether originalist methodology generally is dispositive and whether originalist methodology would permit evolutionary constitutionalism. ' For an early and seminal critique of originalism, see H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985). More recent critiques of originalism are not hard to come by. See, e.g., Cass R. Sunstein, Resist the

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