The debate over Amendment D has often sacrificed important constitutional considerations in favor of a focus on less weighty, more headline-grabbing political questions. The Utah Supreme Court’s ruling on Amendment D should let us turn the page and focus on the highest priorities.
A state supreme court that seems to be walking away from judicial restraint is one such priority issue. Another is ensuring that ballot initiatives fulfill their proper role in a representative democracy.
In an August ruling on abortion and a separate decision in July on ballot initiatives, the Utah Supreme Court showed a concerning tendency in its legal thinking: Identify a principle absent from the text of the state constitution and use it to redefine the meaning of constitutional language.
A natural outcome of this approach has been to place the court in the role of resolving policy disputes — placing the court in a concerning conflict with the constitution’s principle of the separation of powers. Utah judges have historically restrained themselves when asked to overturn legislative action by those who failed to defeat it in the Legislature.
But in the abortion and ballot initiative rulings, political activists have a pattern for how to use the courts to overcome their failures in representative democracy: The Utah Supreme Court is willing to snatch policy victory from legislative failure, if the argument is right.
The experience of the U.S. Supreme Court should offer a cautionary tale to state courts tempted to leave behind judicial restraint for the siren song of the activist approach.
The U.S. Supreme Court has been strongly criticized in recent years, with voter trust in the judiciary hitting all-time lows. As a majority of the justices have restrained themselves to a role carefully circumscribed by the constitutional text, it has upset some who have become accustomed to the court resolving hot-button policy disputes like abortion in prior decades. Many have struggled to leave a politicized view of the court behind and instead have attacked the court for its return to judicial restraint, highlighting why the judicial activism of the past was such a serious mistake.
The obvious solution for the Utah Supreme Court is a course correction before judicial activism becomes the norm: Acknowledge policy disagreements masquerading as constitutional disputes for what they are, and leave them to voters and their elected representatives to decide. Leaders of the representative branches of government have signaled they are willing to use their own constitutional authority to check the direction of the court, which is a path the court should avoid.
The question on the role of ballot initiatives in representative democracy is equally important.
The court’s July ruling enshrined a theory that voters’ policy decisions in ballot initiatives must be “protected” from the policy decisions of the elected representatives chosen by voters. This court-manufactured conflict between these two constitutional rights of the people is an unnecessary confusion of the constitution.
The July ruling, on its face, seems to limit the impact of its decision to ballot initiatives that “alter or reform the government,” referencing language in the Utah Constitution. But this theoretical limit is not much of a limit at all in practice.
Any policy reform, be it legislative or ballot initiative, alters or reforms some aspect of government in some way — that is the very purpose of policy reform. The court may not believe that every ballot initiative implicates that specific language of the Utah Constitution, but what it does and does not apply to is a matter of significant debate. So, by relying on it as the limit of protection for ballot initiatives, they have just guaranteed that every political activist in the future will draft their ballot initiative to credibly argue that it merits this heightened legal protection from legislative repeal.
In other words, the primary impact of this limit in the court’s July ruling is to make the court the final word on the fate of every policy reform enacted by voters and significantly reformed by lawmakers — placing themselves squarely between voters’ direct legislative power and the voters’ power to legislate via those they elect to legislate.
The court also did an admirable job attempting to discern the original historical meaning of the Utah Constitution’s ballot initiative provision. However, that historical development happened in the context of our national constitutional history.
The Utah Constitution’s primary purpose, like its national counterpart, is to establish representative democracy through the government’s elected branches. This is why most of the constitution’s text is dedicated to articulating and limiting the powers of the Legislature and governor, and relatively little is spent on outlining the ballot initiative power and process.
In following this model, springing from the federal constitution, the framers of the Utah Constitution incorporated the intent of the framers of the U.S. Constitution, who held distinct skepticism toward the concept of direct democracy (embodied by ballot initiatives) and saw elections as the ultimate check available to the people on the power of government. With this system and natural protection in place, it is dubious to conclude that the original intent of the Utah Constitution’s ballot initiative provision demands court-ordered protection against actions undertaken by the people’s elected representatives.
Given all of this, it should come as no surprise then that states which have empowered ballot initiatives at the expense of representative democracy are criticized across the spectrum for the form of governance they have inflicted upon citizens and voters.
Presuming that the July ruling is not challenged in federal court as a violation of the U.S. Constitution’s guarantee of representative democracy in the states, policymakers should consider improvements to the lawmaking process of ballot initiatives. If Utahns are forced to live under ballot initiatives that are difficult to repeal, then the vetting process for such proposals ought to be thorough and deliberative, similar in nature to the heightened deliberation inherent in representative democracy.
Judicial restraint, in keeping with the constitutional separation of powers, has helped make Utah an example of good governance to the nation. Utah judges, policymakers and voters ought to carefully consider the ramifications of moving away from that bedrock legal principle. If we keep important considerations like this top of mind, we can continue to make Utah the best place to live, work and raise a family regardless of the outcome of any one piece of legislation or court decision.
William C. Duncan and Derek Monson are colleagues at Sutherland Institute, a nonprofit public policy think tank that seeks to advance principled public policy that promotes the constitutional values of faith, family and freedom.