Building the Canon of Utah Constitutional Law: Lessons from the Utah Public Interest Standing Doctrine

Abstract

There exists an uneven dialogue between the Utah judiciary and the Utah bar on pleading under the Utah Constitution. While the bench encourages legal arguments based in the State Constitution, members of Utah’s legal community have noted challenges to succeeding on state constitutional claims. When the bar tries to make a constitutional claim, there is little case law on which to base an argument, and when the Utah Constitution is pleaded, the court will often decide on other grounds. The bar should anticipate few cases to support a state constitutional proposition. However, in the interest of developing the Utah constitutional canon, advocates should not opt for a mere footnote to the one case remotely on point or undeveloped arguments relying on nothing more than the plain text of the Utah Constitution. Rather, the brief that gives modern and historical meaning to the text by using various interpretational tools that have been offered by the Utah Supreme Court not only has a good chance of being heard but also can push forward new state constitutional doctrine.