Free Market State (of Mind): Antitrust Federalism, John J. Flynn and the Utah Constitution’s Free Market Clause

The Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this Article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust federalism was rooted in Rawlsian notions of distributive justice and economic equality. One of the early critics of the Chicago School’s output-based economic approach to antitrust analysis, Flynn actively sought to infuse antitrust regulation, primarily at the state level, with the consideration of wealth inequality, distributive justice, and individual liberty. Yet, in recent years, conservative groups have taken up the Free Market Clause as a potential deterrent to progressive regulation.

And in the three decades since it was enacted, the courts of Utah have all but forgotten the origin and purpose of this unique and empowering constitutional pronouncement, finding it to be non-self-executing and thereby non-justiciable. This Article, for the first time, unearths the forgotten intellectual history of Utah’s Free Market Clause and explores its three principal applications as: (1) an interpretive aid to Utah’s Antitrust Act, which was modeled on the federal Sherman Antitrust Act; (2) a standalone constitutional claim against anticompetitive state regulations and private conduct; and (3) an alternative approach to federal antitrust analysis that supplements neoclassical economics with concerns over wealth inequality, distributive justice, and individual liberty.