The Utah Constitution Is ‘Distinctively Undistinctive’

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.  

Political scientist Daniel Elazar once wrote that each state constitution reflects a distinct “ethnic, religious, socioeconomic, cultural, and historic” background. While Utah’s constitution certainly reflects the state’s unique history as a Mormon society, that does not mean it is an unusual constitution. To the contrary, the delegates at the 1895 convention — which produced the constitution Utah still uses today — consciously signaled a break from Utah’s controversial past by producing what Daniel Greenwood, Christine Durham, and Kathy Wyer call a “distinctively undistinctive” constitution.

The Path to Statehood

In 1830, Joseph Smith founded the Church of Jesus Christ of Latter-day Saints (LDS) in New York. His followers, often called Mormons for their signature book of scripture, began building communities in Ohio and Missouri. Within a decade, violent clashes with neighbors led them to abandon both for frontier Illinois. Nauvoo, the city they founded there, soon rivaled Chicago in population. In 1844, renewed hostilities culminated in Smith’s assassination, and his successor, Brigham Young, resolved to lead the young church’s adherents to land he thought nobody else would want. Leaving the United States, Young’s vanguard wagon train entered Salt Lake Valley on July 24, 1847 — an event now celebrated annually as a Utah holiday. Until this time, the region’s indigenous tribes had only occasional contact with white settlers. In a pattern familiar throughout American history, it would not be long before the settlers displaced the indigenous tribes.

Despite Young’s hopes of building an independent LDS society in the high desert, the Mexican-American War brought his people back under the authority of the United States in 1848. With few ready alternatives, President Millard Fillmore appointed Brigham Young governor of the newly organized Utah Territory in 1851. Word of Young’s theocratic ambitions and of an emerging practice of polygamy soon reached eastern ears, however. Shocked, the new Republican Party pledged in its founding platform of 1856 “to prohibit in the territories those twin relics of barbarism, polygamy and slavery.” Responding to these concerns, President James Buchanan replaced Young with a non-LDS governor in 1858.

Young nevertheless continued to wield power in Utah Territory. In 1862, the same year Republicans in Congress outlawed bigamy in federal territories, he organized an unofficial (and unsuccessful) effort to draft a statehood petition and proposed constitution, and in 1870, convened a shadow government to pass “laws” and prepare to assume power. Objections to polygamy and theocracy led Congress to decline statehood petitions in 1849, 1856, 1862, 1872, 1882, and 1887. Instead, Congress passed the Edmunds-Tucker Anti-Plural Marriage Act of 1887, disincorporating LDS, disenfranchising Utah women (who had been able to vote in the territory since 1870), replacing sympathetic local judges with federal appointees, and barring polygamists from jury service and voting. Finally subdued, Young’s successor Wilford Woodruff announced in 1890 an end to church-sanctioned polygamy and initiated other actions to distance himself from Young’s former theocratic ambitions.

In response to Utah’s “Americanization,” Congress in 1894 passed Utah’s Enabling Act, authorizing the territory to draft a constitution for congressional approval. Utah’s constitutional convention met from March 4 to May 6, 1895, signing the final draft on May 8. Statehood became official on January 4, 1896.

A Break with Utah’s Past

Utah’s Enabling Act required the proposed constitution to contain four provisions, “irrevocable without the consent of the United States.” First, a “perfect toleration of religious sentiment” and a guarantee “that polygamous or plural marriages are forever prohibited.” Second, renunciation of “all right and title to the unappropriated public lands” within Utah, a requirement imposed on most western states. Third, state assumption of territorial debts. And fourth, provision for public schools “free from sectarian control.”

Apart from incorporating the four mandatory ordinances, delegates at the 1895 convention consciously drew heavily on other recent constitutions, especially those of Illinois, Nevada, Washington, and New York. The resulting constitution was “aimed at defining a governing body and its participants in a way that would” assure the federal government and potential transplants to the state “that Utah was mainstream America,” according to one assessment by a group of scholars, including a former chief justice of Utah.

When the convention did address Utah’s uniqueness, it therefore did so negatively. For example, the 1895 constitution included “almost every imaginable protection for religious freedom,” such as these provisions in Article I, Section 4, that have endured without amendment:

“The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.”

Other provisions of the original constitution were typical of the era. Scholars have identified late-19th century progressive values in several provisions, including those dealing with labor, public education, corporations, and prisons. For example, delegates prohibited lending public credit or otherwise using public funds to invest in “any railroad, telegraph, or other private . . . enterprise.” The passage of time rendered these concerns obsolete, however, and a 1992 amendment repealed most of the article governing corporations.

The 1895 constitution also reflected the era’s suspicion of centralized power and corruption. Executive power, for example, was divided among the governor, attorney general, and secretary of state, and many executive functions were assigned to boards. Significant amendments in 1980 and 1992 eliminated many boards, conferred new line-item veto authority, provided for gubernatorial disability and succession, and made other reforms. In terms of formal authority, Utah’s governor is now among the nation’s strongest.

Further reflecting the era’s concerns, the legislature was limited to a 60-day session every other year, in addition to procedural requirements, a single subject rule, prohibitions on special legislation, and other restrictions. By amendment, Utahns added initiative and referendum processes in 1900. Eventually, suspicion of legislatures waned nationwide, and many state legislatures “transformed from horse and buggy, 18th century anachronisms to bodies as well-run and professional as many national legislatures,” Christopher Z. Mooney has written. Utah was not among them. A 1984 amendment adopted annual 45-day sessions, but the legislature continues to spend fewer days in session than almost any other state’s. A 2018 amendment authorized the legislature to call itself into special session, but its impact remains to be seen.

As for the judiciary, a 1944 amendment switched from partisan judicial elections to gubernatorial appointment with senate confirmation. A sweeping 1984 amendment provided for commission nomination with retention elections, in addition to creating a judicial conduct commission and a judicial council authorized to adopt rules administering the judicial system.

Most rights remain as written in 1895. Often echoing the federal Bill of Rights, Utah’s constitution guarantees due process, prohibits excessive bail and cruel and unusual punishments, and ensures freedom of speech. Additions since 1895 mostly reflect conservative priorities of recent decades. A 1984 amendment separated the right to bear arms from militia service, providing an “individual right . . . to keep and bear arms for security and defense of self, family, others, property, or the state.” A 1994 amendment enumerated crime victims’ rights. A 2004 amendment defined marriage as “the legal union between a man and a woman.” And a 2020 amendment guaranteed a right to hunt and fish, obligating the state to “promote wildlife conservation” and to “preserve the future of hunting and fishing.”

A Wave of Recent Amendments

Utah has never held a revision convention, making it one of only 19 states still operating under its original constitution. That said, frequent amendment has left little of the original text intact — with notable exceptions like the declaration of rights described above.

Amendments require a proposal by two-thirds of each legislative chamber followed by voter ratification. Amendments came slowly at first. As shown in Figure 1, voters ratified 11 amendments from the 1902 to 1930 elections, rejecting 17. From the 1992 through 2020 elections, by contrast, voters ratified 45 amendments, rejecting only 7. (Data compiled by author.)

Figure 1 — Total Amendments Ratified and Rejected by Voters (1902–2020)

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Amendment activity accelerated significantly when the Utah Legislature created a Constitutional Revision Commission in 1969 to propose amendments for the legislature’s consideration. Its first proposal reached voters in 1970, relaxing Article XXIII’s amendment provisions to permit sweeping revisions to an entire article. Thus empowered, the commission’s work led to far-reaching amendments addressing the legislature (ratified 1972), elections (1976), the executive branch (1980 and 1992), the judiciary (1984), and more.

It is hard to overstate the commission’s impact. When it was formed in 1969, 79 percent of the sentences written in 1895 remained in the Utah Constitution, as shown in Figure 2. In 1989, only 20 years after the commission’s formation, only 41 percent remained. Today, 28 percent remain — mostly in Article I’s declaration of rights, Article II’s description of state boundaries, Article III’s recitation of the Enabling Act’s four mandatory provisions, and Article XXIV’s obsolete provisions governing the transition from territory to state.

Figure 2 — Percent of Original Sentences Remaining

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Despite all this change, Utahns have resisted the temptation to lengthen their constitution, as shown in Figure 3. On average, amendments have deleted as much text as they have inserted. Speaking generally of the 50 states, University at Buffalo School of Law professor James Gardner once lampooned the “failed discourse of state constitutionalism,” criticizing the “vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements” — especially their propensity to constitutionalize policy details better left to statute. Utahns have mostly avoided this vice, though Figure 3 does suggest an emerging tendency toward a net addition of constitutional language.

Figure 3 — Words Added to and Deleted from the Utah Constitution

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The most frequent targets of amendment activity have been Article XIII, Revenue and Taxation (62 proposed, 39 ratified); Article VI, Legislative Department (49 proposed, 29 ratified); Article X, Education (21 proposed, 16 ratified); Article VII, Executive Department (22 proposed, 11 ratified); and Article I, Declaration of Rights (13 proposed, 11 ratified). Two articles have been repealed entirely, transferring their subject matter to statutory control: Article XIX, Public Buildings (specifying the location of the state fairgrounds, capitol, and reformatory institutions), and Article XXI, Salaries (requiring that nearly all officials be paid by fixed salary). Six of the 24 articles have never had an amendment proposed.

Judicial Interpretation and Mixed Signals from the Courts

Utah Supreme Court justices have repeatedly affirmed their interest in the constitution’s original meaning. As the state supreme court wrote in the founding era, “It is our duty to declare [the framers’ intention] whether we deem it wise or unwise.” The current court has expressed the same sentiment: “When we interpret our constitution, we are not simply shopping for interpretations that we might like. We start our analysis by trying to understand what the language meant to those who voted on it.”

The court has sent mixed signals as to what else it will consider when interpreting the state constitution. In a 1993 case, the court rejected a purely textual analysis: “We have encouraged parties briefing state constitutional issues to use historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials to assist us in arriving at a proper interpretation of the provision in question.” It seemingly narrowed this guidance in 2006, omitting any reference to policy arguments: “In interpreting the Utah Constitution, prior case law guides us to analyze its text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.” Two cases decided a year later appeared to backtrack, reviving advice that policy arguments may be appropriate. One writer used this discrepancy as a springboard for the ambitious claim that Utah’s unique history makes policy arguments relevant to a distinctive “Utah originalism.” Another has countered that the court’s reference to policy arguments pertains only to “briefing requirements rather than interpretive methodology,” a perspective seemingly more aligned with the court’s repeated insistence that only a provision’s original public meaning should guide its decisions.

In 2024, the Utah Supreme Court issued two rulings with uncertain but potentially earthshaking implications for Utahns. First, the court unanimously held in July that the people’s state constitutional right to “alter or reform their government” limits the legislature’s ability to revise a governmental reform statute enacted by initiative. Second, after the legislature hastily prepared a corrective constitutional amendment, the court unanimously voided it in October, holding that legislators prepared ballot language so misleading that it failed to meet the constitution’s requirement that “amendments shall be submitted to the electors of the state.” Both rulings relied on language found in the original 1895 constitution.

It is unclear whether this interbranch conflict will remain confined to the specific question under dispute — partisan gerrymandering — or if it will result in general court-curbing actions by the legislature.

• • •

State constitutions do not attract the same popular attention as the U.S. Constitution. Similar to other states, only about half of Utahns even know their state has its own constitution. Perhaps they can be forgiven; state supreme courts invalidate fewer legislative and executive actions in states like Utah that keep their constitutions brief and current, keeping both the court and the constitution from the headlines.

That said, state constitutions “are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law,” as Justice Brennan wrote. Indeed, the Utah Supreme Court’s 2024 rulings on direct democracy described above drew from this font. In light of these recent decisions, one thing remains certain: even a “distinctively undistinctive” constitution can be full of surprises.

Adam R. Brown is an associate professor of political science at Brigham Young University.

Suggested Citation: Adam R. Brown, The Utah State Constitution Is ‘Distinctively Undistinctive’, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 26, 2025), https://statecourtreport.org/our-work/analysis-opinion/utah-state-constitution-distinctively-undistinctive