THE UTAH STATE CONSTITUTION: A REFERENCE GUIDE by Jean Bickmore White. Westport, Connecticut, Greenwood Press, 1998. 250 pp. Cloth $75.00. ISBN 0-313-29351-1.

Reviewed by Craig Hemmens, Department of Criminal Justice Administration, Boise State University. E-mail: chemmens@boisestate.edu.

Jean Bickmore White’s THE UTAH STATE CONSTITUTION is another in a series of reference books on the individual state constitutions. The series, edited by G. Alan Tarr and published by Greenwood Press, is a very useful source for anyone interested in state constitutional law. Where once this subject was largely ignored, researchers and courts, spurred in part by the United States Supreme Court’s growing conservatism and animosity to individual rights (see, e.g., MARYLAND V. WILSON (1997) and OHIO V. ROBINETTE (1996)) and in part by Justice Brennan’s (1977) call to use state constitutions as a source for providing greater protection of individual rights, have begun to more closely examine state constitutions.

Until recently, state constitutions have been dismissed by many as outdated, filled with unenforceable provisions and too much detail. As the federal government became more involved in regulating the affairs of daily life, and the federal constitution was looked to as the source of rights and protections, state constitutions fell into disuse. State constitutions are important, however, not only because they may serve as a source of rights when the Supreme Court turns conservative, but because state constitutions deal directly with many issues of immediate concern to average citizens, such as education, health and welfare, transportation, and property rights. States have broad authority to deal with issues of great concern, particularly in the twentieth century, as America has become an industrialized nation and the economy has become national in scope.

This book closely follows the pattern for the series. Its 250 pages are divided into two parts. Part One provides a brief overview of the development and history of the constitution. Part Two contains a detailed, section-by-section analysis of the current constitution. Also included is a useful bibliographical essay, a table of cases dealing with the state constitution, and an index. As with the other books in this series, this book is not intended to be read from beginning to end, but instead is intended to serve as a reference guide to the various provisions of the Utah state constitution.

While this book is obviously of interest to Utahns, why should anyone outside of Utah be interested in this book? There are several reasons. First, anyone interested in state constitutional law generally can use this book, and the others in the series, to gain a basic understanding of the different state constitutions, and can compare and contrast the constitutions. Second, Utah has a fairly unique history. Founded by Mormons seeking to avoid religious persecution, its leaders shared some of the fears of the original Puritan settlers. The state also provided some rights which many other states and the federal government once failed to provide, such as voting rights for women. This makes for an interesting contrast with other states.

Part One of the book details briefly Utah’s early attempts to write a constitution and achieve statehood. Also included is a discussion of the 1895 constitutional convention and subsequent significant events in the state’s constitutional history. Utah’s state constitution is one of only nineteen original state constitutions still in force, but the document has undergone a substantial number of revisions over the years. For instance, the Revenue and Taxation Article has been amended thirty-three times. The constitution was adopted in 1895, after six previous constitutions (dating back to 1849) had been disapproved by Congress. Utah sought statehood for a half-century before it was granted in 1896, and it was achieved then only after the passage of the Enabling Act, banning polygamy, and the inclusion in the 1895 constitution of a provision outlawing the practice.

Part Two is the heart of the book. Here each provision of the current Utah state constitution is presented and analyzed. Repealed provisions are discussed when appropriate. Significant Utah Supreme Court decisions interpreting various provisions are also discussed. The Utah constitution is similar in appearance to other constitutions of this era. It is not a short document, containing some twenty-four different articles. There are articles setting forth the three branches of government and their duties, and a number of other articles, dealing with matters large and small. The first article, entitled the Declaration of Rights, lists the individual rights retained by state citizens. Included in this article are some unusual provisions, including the still extant right to be executed by a firing squad, the right o carry a concealed weapon, and the right of the state to use as few as eight persons on a criminal trial jury.

Many of the provisions in the Declaration of Rights closely track the provisions of other state constitutions as well as the federal constitution. But while the language of the constitution may be identical, the interpretation placed on this language by the Utah state courts is occasionally at odds with other states and the United States Supreme Court. White does a good job of discussing the Utah Supreme Court decisions interpreting the state constitution. Different interpretations include the refusal of the Utah Supreme Court to extend the spousal testimonial privilege beyond the confines of the trial, thus rendering it almost meaningless. The Utah court has also reserved the right to interpret the exclusionary rule on state rather than federal grounds. This is in accord with several other states in the region, such as Idaho, which provide more individual protections under state constitutions than are provided under the federal constitution.

The Utah constitution contains a number of interesting and unique provisions. These range from the antiquated (authorizing the use of the firing squad for executions) to the modern (adoption of an entire section addressing the rights of crime victims). One notable element of the original constitution is a provision affording women the right to vote. As a state Utah allowed women to vote for a number of years, but there was a fear in the Congress that their polygamist husbands were manipulating Utah women, in effect giving some Mormon men more than one vote. Nonetheless, this right remained in the original draft of the constitution, and did not prove a serious impediment to statehood.

State constitutions do much more than simply set forth the outlines of the state government. They are also political documents, reflecting the dominant social and economic interests of the times. This is particularly true of the constitutions of western states, which were concerned with the conflict between mining and agriculture interests and the growing influence of monopolies like the railroads. It is especially true of Utah, which had all the usual western state problems as well as the Mormon question. This may explain the length of state constitutions, as they try to address issues of concern to specific groups in society instead of stating general principles and outlining the government. The federal constitution delegates certain limited powers to the federal government. States retain the other powers; consequently there is a tendency to list what it is the state cannot do.

White has written an admirably clear and concise guide to the Utah state constitution, and her book is an excellent addition to an

outstanding reference series. I recommend it to anyone interested in Utah history and law, as well as to anyone interested in the development of state constitutional law.

Brennan, William J. (1977). "State Constitutions and the Protection of Individual Rights," HARVARD LAW REVIEW 90: 489.

MARYLAND V. WILSON, 519 U.S. 408 (1997).

OHIO V. ROBINETTE, 519 U.S. 33 (1996).

Copyright 1995