Utah Supreme Court justice talks to Snow students on Constitution and federalism
By Max Higbee and Suzanne Dean
Sept. 21, 2017
EPHRAIM—Justice Christine Durham, who has announced plans to retire later this year after 35 years on the Utah Supreme Court, talked about the responsibilities of citizenship in a federalist democracy at the Snow College Convocation last week.
“[The constitutional system] is a little bit more complicated than most people think,” she said in a talk last Thursday, Sept. 17, which was Constitution Day. “I’m going to be talking about the fact that there are, in addition to the federal Constitution, state constitutions, and what that means in our system.”
Durham said the earliest constitutions in the United States were state constitutions. In fact, the Massachusetts constitution is oldest written constitution still in force.
The state constitutions talked about what had come to be viewed as the inherent individual rights of citizens. They established what Durham called the “affirmative rights” of citizens in relation to government.
“If you think about the federal constitution, where did it come from? Where does the federal government get its power?” she asked.
Her answer was that in the American context, the states had government powers first. When the states got together to create a nation, they delegated some of those powers to the federal constitution.
“Under the federal constitution, our individual rights are what we call ‘negative rights.’ It’s not that we are guaranteed the right to free speech in the federal constitution. What we are guaranteed in the federal constitution is the right to be protected from government interference with free speech.”
Durham said the founders realized a federalist democracy was a “very fragile enterprise.” They understood that it would be up to the people to maintain it, she said.
“They also understood that was not going to be possible if the people were not educated and knowledgeable bout the constitutional system.”
The need for knowledgeable citizens was one of the main reasons state constitutions almost uniformly guaranteed a free public education, she said.
Today, the justice said, lack of knowledge about the Constitution and apathy about democratic participation is a big concern.
She asked students for a show of hands as to whether they had studied the U.S. Constitution or any constitution. Only a few hands went up.
She noted that a while ago, a poll was conducted in which the first 14 amendments to the U.S. Constitution were presented to people. “Some people thought they were Communist plots.”
She also asked for a show of hands as to how many people attending the convocation were eligible to vote. Most hands went up. Then she asked how many were registered to vote. Fewer hands went up.
Durham said Utah has been at the bottom of the nation in voter turnout. In 2014, 28 percent of voting-age people in Utah actually voted, which was the third lowest turnout among the 50 states.
In 2016, 80 percent of registered voters in Utah cast ballots, the highest in four decades. But that translated to only 57 of voting-age adults.
“There are a lot of reasons why people don’t register and vote, but when you get right down to it, none of them are good reasons,” she said.
Justice Durham grew up in Southern California before moving to Washington, D.C., then to Paris, where she graduated high school. She attended Wellesley College two years ahead of Hillary Rodham Clinton, and went on to law school at Duke University.
In 1982, Gov. Scott Matheson, Jr. appointed her as the first woman on the Utah Supreme Court. She served as chief justice from 2002-2012. She founded the National Association of Women Judges in 1986 and served as its president from then until 1997.
Her talk at Snow College is available via the “Watchit Snow College” YouTube channel.