concurring:
¶ 69 Much of the greatness of our nation lies in our ongoing struggle to advance, improve, and better ourselves both individually and collectively. Our pluralistic system al*1255lows countless individuals and myriad groups to seek to advance their views of what makes for a better society and' to oppose the views of those who believe otherwise. The many contrasting ideas competing for ascendancy in the public debate make for tempestuous seas. Considering the intense conviction and passion devoted to various ideals, it is no small accomplishment that our nation has been able to navigate these seas in a largely peaceful fashion.
¶ 70 As a nation, we now find ourselves with a combination of freedom, wealth, and opportunity unmatched in world history. In my view, the factor most responsible for this miraculous result is our nation’s Constitution, which has provided a sound framework for democratic debate and societal evolution while simultaneously protecting certain rights from restriction by ordinary political processes. The unquestioned importance and force of the Constitution’s terms has spurred perhaps the greatest ongoing jurisprudential debate affecting this nation: how are we to decide what the Constitution means? While the vast majority of scholarly attention has been directed toward answering this question in relation to the Federal Constitution, the same debate rages throughout the states of this union, each of which wrestles with the meaning of its own constitution. The present case requires this court to grapple with the difficult questions permeating the debate as to the proper method to follow when interpreting our state constitution.
I. THE INTERPRETIVE TASK AT HAND
¶71 We are called upon to assess the constitutional validity of a city ordinance prohibiting nude dancing in sexually oriented businesses. Under federal constitutional law, such dancing “falls only within the outer ambit of the First Amendment’s protection.” City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion). Plaintiffs, which own sexually oriented businesses affected by the ordinance, concede that it would be difficult, if not impossible, to succeed in arguing that the city’s prohibition on nude dancing violates the United States Constitution’s protection of the right of free speech.1 As a result, Plaintiffs have structured the current litigation so as to focus exclusively on the protections afforded by our state constitution.
¶ 72 The dispute in the present case, though nominally limited to a handful of plaintiffs, is a manifestation of the broader tension between the will of the majority in our democratic society and those protections constitutionally afforded the minority. As a general matter, the right of the democratic majority to regulate and outlaw behavior ceases at the point at which constitutionally protected rights are unduly infringed. Where, as is demonstrated by the majority opinion, historical evidence indicates that nude dancing in sexually oriented businesses is not within the ambit of protected communication under our state constitution, the proper role of this court is to allow the democratic process to resolve issues pertaining to the restriction of that conduct. I therefore concur in the majority opinion.
II. THREE APPROACHES TO CONSTITUTIONAL INTERPRETATION
¶ 73 I write separately to further explain the manner in which I arrived át this conclusion. As noted above, the fundamental question presented in this appeal is whether our state constitution extends protection to nude dancing in sexually oriented businesses. To answer this question, we must interpret the relevant provisions of our state constitution and discern the breadth of the protections provided therein. When faced with such an interpretive task, our first step must be to determine how we should discharge our interpretive function. In other words, we must ascertain any mechanisms that are available to aid us in our interpretive task and then decide which of 'those mechanisms we may appropriately usé. Almost all approaches to constitutional interpretation purport to begin with the text of the provision at issue. The crux of the quandary is therefore determin*1256ing where we, as judges, should look for guidance when assessing the meaning of that text. Drawing on approaches adopted and advocated in relation to the interpretation of the federal constitution, and those previously employed by this court, I see essentially three possible approaches to constitutional interpretation, together with various combinations thereof: (1) we can' assign meaning to the text based on the attitudes and views of contemporary society (the “contemporary-context approach”); (2) we can assign meaning to the text based on our own individual attitudes and views (the “subjective approach”); or (3) we can assess the meaning of the text based on the understanding and intent of those who drafted and ratified the constitution (the “historical approach”).2
¶ 74 All three of these approaches ask the question “what does the provision mean?” The contemporary-context approach asks “what should the provision mean in the context of our modern values and attitudes?” The subjective approach asks “what should the provision mean according to the interpreting judge’s own personal values and attitudes?” The historical approach asks “what did this provision mean to those who drafted and ratified it?” While the answer to the first two questions would seem to be a moving target, the answer to the last one, at least in .theory, is fixed. As I will explain hereafter, I believe that the appropriate question is the last one.
A. The Contemporary-Context Approach
¶ 75 Turning first to the contemporary-context approach, it can be argued that any interpretation of our constitution must be cognizant of that document’s present societal context. Adherents to this approach consider the constitution a living, evolving document that is malleable, sensitive to, and capable of reflecting changing social conditions, attitudes, perceptions, and trends. As a result, use of the contemporary-context approach can lead to the elevation of an evolving or evolved social view to special legal status, thereby “constitutionalizing” a widely held social belief. Such an approach relies on the premise that the constitution is a document enshrining principles, the content of which can change over time, and that it is the role of the judiciary to discern the breadth of activity protected by constitutional principles in contemporary society.
¶ 76 It is true that our state constitution is a document that rarely delves too deeply into particulars. Instead, it can be conceived of as a broad outline of our state structure, enabling democratic functionality while compelling moral reverence for the rights of those not in the majority. It can certainly be argued that we should interpret the constitution to give effect to the societal values that exist in that document, independent of the words chosen to signify those values. In other words, one may contend that, although the constitutional language expressing the principle of free and unfettered speech has remained the same, our society’s conception of that principle, or our society’s belief as to what speech must be protected to serve that principle, may have changed.
¶ 77 While the contemporary-context approach is not without its appeal, and certainly does not lack for adherents, I find it unsatisfactory for a number of reasons. First, it casts judges in the role of opinion pollsters, a position I am skeptical judges are necessarily qualified to undertake, as it requires them to assess popular opinion and cultural trends. Second, and more fundamentally, I am at a loss to discern the source of judicial authority to conduct such a societal survey. I am aware of no authorization, *1257whether contained within the constitution or otherwise, that grants judges the ability to shape the constitution to match what they believe to be the changing contours of our society. Third, molding the constitution to reflect changing social attitudes, even if the judicial branch were adequately equipped to recognize such changes, seems to be a usurpation of the role the legislative branch is designed to play in our government. Indeed, the legislative branch is the branch of government that is expressly designed to adjust our legal framework to reflect contemporary context. Accordingly, if certain behavior is not granted protection by the federal or state constitution, that does not end the debate as to whether that behavior will be tolerated by society. The people remain free to employ the democratic process to allow or prohibit such behavior. If it so happens that the prevailing view of society toward a certain behavior has altered over time, society is fully empowered to implement that view through use of the democratic process. Of course, the will of the majority is checked by established constitutional protections. Our role as judges is to identify and fortify the wall protecting those rights specified in the constitution from majoritarian override.3
¶ 78 If the framers of the constitution chose not to include a particular behavior within the constitution’s protective sphere, debate and action addressing that behavior should occur in the democratic arena. Society should seek to resolve disagreements concerning the proper scope of governmental regulation of unprotected behavior through political debate and contest, not judicial fiat. Our society is best served when the line between judging and legislating is clearly drawn. Looking to social attitudes in an attempt to shape the constitution through interpretation strikes me as more akin to legislating than judging, and I would therefore reject that approach to constitutional interpretation.
B. The Subjective Approach
¶79 Turning to the second interpretive approach identified above, the subjective approach, I admit that it is indeed enticing to adopt an interpretive technique whereby we, as judges, look to our own attitudes and views to discern the contours of the protective boundary erected by our state constitution. Under this approach, the constitution becomes an instrument by which judges can implement their own social views, irrespective of historical understanding or predominant modern social attitudes, perceptions, or trends. Judges are human, after all, and each judge no doubt has strong convictions as to what makes for a better society. The inescapable presence of those convictions has, I suspect, tempted many judges to strike down a legislative act as unconstitutional because the act is viewed, from a personal perspective, as wrongheaded or socially harmful. Furthermore, when faced with majoritarian curtailment of behavior that a reviewing judge believes to be in need of protection as part of a humane and decent society, the temptation to conclude that the right to engage in such behavior is enshrined within the penumbra of our constitution’s express protections is powerful to say the least.
¶ 80 I do not discount the argument that judges following the course set by their own moral compass when discharging their judicial duties may be trusted and valuable stewards of public policy. Judges are, after all, generally highly educated, well intentioned, thoughtful, and (we hope) wise. Further, judges are largely protected, at least in our state’s system, from the ever-changing political winds and are able to make policy pronouncements with the benefit of a full hearing in which both sides to a particular debate are given the opportunity to state their case. If the hallmark of the judicial process is sound reasoning conducted with the aim of *1258arriving at the best possible result, irrespective of political forces mounting against that result, it is easy1 to see why many find the notion of entrusting major social policy decisions to the judicial branch appealing.
¶ 81 Despite its allure, however, I also find the subjective approach to constitutional interpretation unacceptable and consider it even more dangerous than the contemporary-context approach outlined above. Under the contemporary-context approach, the judiciary would at least moor its social policy pronouncements to either perceived majority views or, at the very least, a perceived groundswell of support for a given policy proposition. In contrast, a judge following the subjective approach would wield virtually unchecked power to modify the social contours of our society in a dramatic manner. Further, although a judge operating under the subjective approach to constitutional interpretation would be nominally constrained by the text of the constitution, that constraint is drastically minimized by the reality that the unambiguous communication of ideas through the use of language is a difficult task. Given the inadequacies of the written word and the judiciary’s charged task of finding meaning in the text of the constitution, a judge operating under the subjective approach can utilize definitional flexibility to rationally read personal beliefs into the constitution. For example, a determined and creative judge can expand the term “speech” or “communicate” to include virtually any aspect of human conduct.
¶ 82 If the contemporary-context approach to constitutional interpretation is more akin to legislating than judging, the subjective approach to constitutional interpretation is more akin to dictating than judging. Therefore, for the reasons outlined above, I conclude that the subjective approach should be rejected.
, C. The Historical Approach
¶ 83 A judge operating pursuant to the third approach outlined above, the historical approach, would look not to the prevailing views of contemporary society or to his or her own personal views on the questions of the day. Rather, under this approach to constitutional interpretation, the judicial enterprise is anchored to the text of the constitution as understood and intended by its framers and the voters who ratified it. Whatever other skills,' talents, and insight judges possess, interpreting the language of various texts is something all judges are trained to do. We are frequently required to interpret texts, whether they be regulations or laws promulgated by the government or contracts between private parties. And it is well established that our goal in interpreting these texts is to give effect to the intent of the texts’ creators. E.g., Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370 (court rules); Allstate Ins. Co. v. Wong, 2005 UT 51, ¶ 25, 122 P.3d 589 (contracts); State v. Maestas, 2002 UT 123, ¶ 52, 63 P.3d 621 (statutes). Therefore, application of this same interpretive approach to a constitutional text is a task that we, as judges, are qualified to accomplish, experienced with, and comfortable undertaking.
¶ 84 Admittedly, the historical approach is less glamorous than the first two approaches discussed above, which enable judges to make dramatic contributions to society and shape the social structure in a manner they deem beneficial. The judge looking to the text of the constitution is engaged in a more workmanlike function. Such a judge does not alter our society’s blueprint in an attempt to improve our societal project, but merely ensures that the people of this state, the constitutionally sanctioned architects of our society, are aware of what the blueprint contains and are operating in accordance with that document’s terms. Under the historical approach, judges are more referees than players in the grand political game. While adopting the first or second approach to constitutional interpretation could, in some instances, result in a net benefit to society if judges’ choices are truly wise and clairvoyant, I believe that as a general rule the judicial branch can best serve the people of this state by adopting a historical approach to constitutional interpretation. This approach provides stability to state government while remaining true to the principle that it is the people of this state who should ultimately determine how our society should be *1259structured. When a particular action of our state’s government is challenged as violative of our constitution, we should proceed in a methodical fashion with a traditional textual analysis by testing the challenged action against the intended meaning of the constitution. We may disagree with an action taken by the legislative or executive branch, we may find a statute or regulation wrongheaded, even silly, but if the challenged act does not impinge upon a constitutionally protected right, it is not our place to void that act. Rather, we should strictly adhere to our judicial function and allow the democratic process to serve as the mechanism to resolve disagreements over social policy.
¶ 85 In advocating the historical approach, I am not blind to its attendant problems. At times, the intent of those who drafted our constitution is difficult to discern, and even the purest of adherents to the historical approach cannot wholly avoid the influence of changing social attitudes and personal views as to what is best for society. Beyond these apparent difficulties, it is frequently argued that this interpretive approach moors society to antiquated notions of what makes for a healthy and productive society and that the dead hand of the framers, who lived centuries ago, should not be given reign over the living. While I acknowledge the real interpretive difficulties encountered by judges applying this approach, I regard the last argument as a red herring. While it is true that, under the historical approach, our constitutional analysis is focused on the understanding of those who drafted the document at a particular time, it does not follow that we are sentenced to live in a static society. The democratic process remains vibrant, flexible, and fully capable of responding to societal change. Indeed, far from promoting a static society, a judiciary constrained from constitu-tionalizing personally held values or current social attitudes actually promotes societal flexibility.
¶ 86 Despite the difficulties that attend the historical approach to constitutional interpretation, I see no other workable alternative, no other alternative that would not unnecessarily blur the lines between the branches of government, and no better way of balancing the need for constitutional protection of minority rights with the freedom of a democratic people to shape their society as they see fit. It is for these reasons that I conclude that a historical analysis of our state constitution is the most appropriate interpretive course to follow when confronted with constitutional questions.
III. THE FRAMERS DID NOT INTEND THE FREE SPEECH RIGHT TO PROTECT NUDE DANCING IN SEXUALLY ORIENTED BUSINESSES
¶ 87 A review of our prior decisions demonstrates that “this court has a very long history of interpreting constitutional provisions in light of their historical background and the then-contemporary understanding of what they were to accomplish.” In re Young, 1999 UT 6, ¶ 15 & n. 5, 976 P.2d 581. Our decisions have employed the following interpretive approach. As with other texts, we start with the language of the constitutional provision in question. In re Worthen, 926 P.2d 853, 866 (Utah 1996). Where the language of the provision is plain, that is to say, where its meaning as intended or understood by its framers is beyond debate, we need proceed no further. See id. But when the language is ambiguous, either as to its scope or otherwise, we must necessarily broaden the scope of our inquiry. Id. When looking beyond the language in question, we consider historical evidence regarding textual development, sister state law, and policy arguments relied upon by the framers in the form of economic and sociological materials. See Soc’y of Separationists v. Whitehead, 870 P.2d 916, 921 n. 6 (Utah 1993). “Each of these types of evidence can help in divining the intent and purpose of the framers, a critical aspect of any constitutional interpretation.” Id. Nothing in this ease suggests that a departure from our customary use of the historical approach is necessary, advisable, or even allowable.
¶ 88 Chief Justice Durham’s dissenting opinion is nevertheless bereft of any attempt to ascertain the intent of the framers of the constitutional provisions at issue. The Chief Justice justifies this, by two arguments. First, she argues that the meaning of the *1260free speech right is plain and that therefore it is unnecessary to consider the intent of the framers. Second, she appears to argue that reliance on the intent of the framers is ill-advised because it can sometimes lead to bad results. In his dissent, Justice Nehring accepts the historical approach but argues-that the historical record supports a natural-law construction of the free speech right, which would offer some protection to nude dancing in sexually oriented businesses. I address each of these arguments in turn.
A. The Intent of the Framers Cannot Be Ignored by Asserting that the Meaning of the Free Speech Right Is Plain
¶ 89 Although the Chief Justice superficially recognizes the import of the framers’ intent, infra ¶ 127, she avoids any real inquiry into that intent by claiming that the provision at issue is unambiguous. Specifically, she argues that because the Utah Constitution itself plainly defines what constitutes free speech, “it is not necessary to consult the framers in order to arrive at the proper definition of free speech.” Infra ¶ 130. Yet the term she advances as conclusively defining speech — “communication”—is by no means plain and requires interpretation no less than does the term it purports to define.
¶ 90 The question of what constitutes speech under the United States Constitution is one that has occupied judges and scholars for over two centuries. No one could reasonably suggest that the term is so clear as to preclude debate regarding its meaning. Nor does the Chief Justice so suggest. She does contend, however, that this famously ambiguous term is rendered clear in the Utah Constitution because that document defines “speech” as “communication.” The obvious flaw in this reasoning is that the term “communication” is no more amenable to easy definition than is the term “speech.” They are two words of the same nature that beg interpretation. To argue that “speech” and “communication” are words so clear as to preempt debate regarding their meaning is no more tenable than it would be to make the same argument regarding constitutional terms like “establishment,” “cruel and unusual,” or “due process.”
¶ 91 The Chief Justice proceeds to assert a so-called “plain meaning” definition of “communication” that is virtually unlimited in its scope and would no doubt astonish those who included the term in the Utah Constitution. She argues that “the right to freely communicate” “is expressed in broad, sweeping, and comprehensive terms, with no qualifications placed on the forum, method, or medium of communication,” and that “it is beyond dispute that the act of communicating extends beyond mere words to encompass a wide variety of expressive activity.” Infra ¶ 116.
¶ 92 The term “speech” as used in the United States Constitution also includes no qualifications as to “forum, method, or medium” of speech, but that has not led to it being construed in the broadest conceivable sense. Yet that is precisely the construction the Chief Justice advances as the plain meaning of “communication.” As she interprets the word in her dissent, virtually any conduct — from purveying obscenity-to soliciting prostitution — qualifies as “communication” and would, accordingly, be afforded protection under our state constitution so long as the conduct does not fall within her narrow interpretation of our constitution’s “abuse of that right” language.4 This broad construction would arguably require the State to satisfy heightened scrutiny for almost every law that regulates conduct. I disagree that the framers’ use of the word “communicate” mandates such a broad construction. As the plain meaning does not mandate the dissent’s interpretation, that interpretation must stem from sources external to the constitutional text.
¶ 93 Indeed, the Chief Justice, although relying nominally on a plain meaning analysis, clearly looks to our contemporary context for guidance in her interpretation. She asserts that “[t]he question is not whether the framers would have considered the conduct *1261communicative; if it is communicative, that is enough.” Infra ¶ 130. She further asserts that “[t]o hold that the free speech provisions of the Utah Constitution mean only what they did in 1896 risks the creation of constitutional doctrine that eviscerates the fundamental right to ‘freely communicate.’ ” Infra ¶ 136. Thus, it is not the meaning of the free speech right to those who created it that governs, according to the Chief Justice, but its meaning in our contemporary context. In essence, the Chief Justice applies a contemporary-context approach in plain language garb.
¶ 94 Consistent with her contemporary-context approach, the Chief Justice supports her assertion that the term “communication” has come to include nude dancing in sexually oriented businesses by describing the evolution of public attitudes toward dance in general and erotic dance in particular. Yet, as this court has stated in the past, our task is to discern the intent of the framers when interpreting a constitutional provision. We stray beyond this role if we attempt to illuminate the meaning of particular language by turning to our modern understanding of the terms used. As I have argued in Part II above, it is more appropriate under our tripartite constitutional democracy to determine whether nude dancing in sexually oriented businesses was included within the right “to communicate ... thoughts and opinions” as that right was understood by those who created it.
¶ 95 Before addressing the Chief Justice’s critique of the historical approach, I find it necessary to discuss briefly her cursory dismissal of the majority’s analysis of our constitution’s “abuse of that right” language. It is remarkable that the Chief Justice construes “communicate” in its broadest sense while giving “abuse of that right” an exceedingly narrow construction. She bases this construction on her conclusion that, at a minimum, an “abuse” must entail some “harm.” See infra ¶ 128.
¶ 96 Assuming Chief Justice Durham’s premise that “abuse” is inextricably linked to “harm,” I am not convinced that the concept of “harm” should be limited to tangible, deleterious secondary effects, such as increased crime rates or decreased property values. Alexander Biekel makes a salient point when he argues that to grant an unrestricted “right to obtain obscene books and pictures in the market” may have a more fundamental effect on society than merely rising crime rates. Alexander Biekel, The Morality of Consent 73-74 (1975). As Bickel states,
To grant this right is to affect the world about the rest of us.... Perhaps each of us can, if he wishes, effectively avert the eye and stop the ear. Still, what is commonly read and seen and heard and done intrudes upon us all, wanted or not, for it constitutes our environment.
Id. I remain open to the possibility that there may be some acts, communicative or otherwise, that so degrade the essence of human dignity and so denigrate broad notions of societal values that, even in the absence of demonstrable, tangible negative secondary effects, the democratic majority should be capable of curtailing the behavior.
B. The Chief Justice’s Critique of the Historical Approach Is Flawed
¶ 97 After completing her purported plain meaning analysis, Chief Justice Durham asserts that the infirmity of the interpretive approach adopted by the majority and endorsed by this concurrence is illustrated by Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857), and Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). The United States Supreme Court wrongly decided these cases, the Chief Justice argues, because it used interpretive techniques similar to those used by the majority — ignoring the text of the Constitution and instead relying “on the law existing at the time of the Constitution’s adoption.” Infra ¶ 135. The Chief Justice asserts that the United States Supreme Court has “long since rejected the notion that practices accepted at the time these provisions were adopted dictate the meaning of the constitutional text.” Infra ¶ 135.
¶ 98 The results in these cases are indeed troubling and their use in criticizing the majority’s interpretive approach warrants some discussion. First, I should note that I disagree with the result in each of these cases. *1262Second, the interpretive approach relied upon by the majority, what I have called the historical approach, does not advocate that constitutional text be ignored. Rather, the goal of the historical approach is to give effect to the text as understood by those who framed and ratified it. An examination of the text itself is of central importance in achieving that goal.
¶ 99 Third, the historical approach does not provide that practices accepted at the time a provision is adopted should dictate the result. The common law and statutes existing at the time a provision is adopted do not dictate the meaning of any constitutional provision, but they certainly qualify as evidence bearing upon the question I believe must be at the heart of our inquiry — what was the understanding of those who drafted and ratified our constitution? The Chief Justice’s characterization of the use of this type of evidence as “pure speculation,” infra ¶ 136, ignores an important segment of the overall historical picture. There may well be instances where existing-law evidence is overcome by other, more direct evidence of the framers’ intent. In this case, however, all evidence of the framers’ intent supports, rather than refutes, the majority, opinion’s interpretation of our. constitution.
¶ 100 Finally, in my view, a properly applied historical analysis may well have yielded the opposite result in Dred Scott and Plessy. Although a searching analysis of these opinions exceeds the scope of this concurrence, it does bear noting that the Supreme Court in these opinions did not, in my view, properly apply the historical approach. A cursory or superficial application of any interpretive approach leads to, at best, suspect results. This is true of the historical approach as well. If a court allows one type of evidence of original intent to dictate its result, it may misconstrue that intent. For instance, there is some indication that the Plessy majority either ignored or failed to consider important portions of the historical record. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L.Rev. 947, 953 (1995). The result in that case may have been different had they properly applied the approach. Id.
¶ 101 Regardless, I do not contend the historical approach to be perfect, but the best of the alternatives. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L.Rev. 849, 862-63 (1989). It may well be that the historical understanding of the scope of some constitutional right could be incongruent with modern views of what that scope should be. But the mechanism for resolving any such perceived incongruity belongs not to judges but to the people.
C. Regardless of the Degree to Which the Framers Were Influenced by Naturalr-Law Concepts, Their Intent Controls the Question of What Constitutes Speech
¶ 102 In his dissent, Justice Nehring employs the historical approach, accepting the premise that our role in this appeal is to ascertain the intent of the framers and ratifiers of the Utah Constitution regarding the right of free speech. Infra ¶ 158. He further agrees that we should do so by examining the constitutional text and historical evidence. Infra ¶ 158. His textual and historical examination leads him to the conclusion that the framers and ratifiers were influenced by a natural-law concept of the freedom of speech, rather than a Blackstoni-an one. A basic assumption running throughout his dissent is that Utah’s free speech provisions must be either natural-law based or Blaekstonian. In other words, either the constitution only protects against prior restraint (Blaekstonian), see William Blackstone, 4 Commentaries *151-53, or it protects all' speech except where it “injuries] ... any other individual in' his person, property, or good name” (natural law), St. George Tucker, Blackstone’s Commentaries: With Notes and References to the Constitution and Laws of the Federal Government of the United States (1803), reprinted in, 5 The Founders’ Constitution 152-58 (Philip B. Kurland & Ralph Lerner eds., 1987). In my view, the intent of the framers was likely somewhere in between. But even accepting the premise that the framers and ratifiers intended speech to be protected to a degree consistent with a natural-law view, the question remains, what did they consider to be speech in the first *1263instance? Or, as more specifically posed in this appeal, did they intend the right to “communicate freely thoughts and opinions” to extend to nude dancing in sexually oriented businesses? In my view, all of the textual and historical evidence available to us supports the conclusion that they did not.
¶ 103 As Justice Nehring notes, under a natural-law, or Lockean, concept of the right of free speech, the right exists independent of any constitution. A constitution that includes a right of free speech merely affirms the existence of such a right; it does not create it. The natural-law view further holds that the right of speech may be restricted by the state only to the extent the speech at issue injures another. Under a Blackstonian view of the free speech right, the right is created by the constitution. Further, in the pure Blackstonian view described by Justice Nehring, speech is protected only against prior restraint. Thus, a natural-law concept of the free speech right provides for a much higher measure of protection than does the Blackstonian concept.
¶ 104 Justice Nehring characterizes the majority opinion as adopting a strict Black-stonian construction that protects speech only against prior restraint. I read the majority opinion as protecting speech from both prior restraint and other forms of abridgement or restraint to the extent intended by the framers. There is ample evidence that the free speech right as contained in the Utah Constitution is neither purely Blacksto-nian nor purely natural-law based. First, the liberty and responsibility clause contains indicia of both the Blackstonian and the natural-law conception of free speech rights. As demonstrated in the majority opinion, the “responsible for the abuse” language has its roots in Blackstone’s Commentaries. Supra ¶¶ 31-40. But as demonstrated in Justice Nehring’s dissent, the “inherent and inalienable right” language has its roots in the natural-law philosophy. Justice Nehring essentially concludes that the natural-law language controls the level of speech protection, but he does not in my view adequately account for the inclusion of the “responsible for the abuse” language. His conclusion begs the question: why did the framers include indicia, of both philosophies if only one has effect?
¶ 105 Second, both the majority and Justice Nehring cite the writings of Thomas M. Cooley to support their position. Justice Nehring characterizes a passage from Cooley’s treatise as “a natural rights manifesto.” Infra ¶ 172. But at least one court has classified Cooley as an adherent to the Blackstonian view. See State v. Ciancanelli, 339 Or. 282, 121 P.3d 613, 623-24 & n. 10 (2005). The following passage from Cooley’s treatise demonstrates that he does not strictly adhere to either view:
We understand the liberty of speech and of the press to imply not only liberty to publish, but complete immunity for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established.
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 422 (Leonard W. Levy ed., Da Capo Press 1972) (1868). From this passage, it is clear that Cooley understood freedom of speech to include more than just protection against prior restraint. But it is also clear that he understood the scope of the free speech protection to be influenced by “the common-law rules which were in force when the constitutional guaranties were established.” Id. In other words, the law existing at the time the. constitution was adopted may be used to demonstrate that certain forms of expression were not intended to fall within the protective sphere of the free speech right. Thus, Cooley’s conception of the scope of the free speech right was considerably less extensive than the natural-law construction as described by Justice Nehring. In sum, given that the framers of the Utah Constitution included both Blackstonian and natural-law language in the text of the liberty and responsibility clause, and that Cooley took an intermediate position in the debate between the two philosophies, I cannot accept Justice Nehring’s assumption that the *1264free speech right in the constitution is strictly natural-law based.
¶ 106 More importantly, however, even accepting that the framers and ratifiers intended to afford speech a natural-law level of protection, that is, even if they intended to protect all speech not injurious to another, the question remains, what did they consider to be speech? Justice Nehring, like Chief Justice Durham, essentially concludes that all conduct with even a modicum of expressiveness constitutes speech under the Utah Constitution. This conclusion essentially transforms the freedom of speech into a virtually unlimited freedom of conduct and would require the state to satisfy some level of heightened scrutiny for' almost every statute or rule that regulates conduct. See supra ¶ 92. That the people of this state intended to bind themselves to this extent is highly unlikely.
¶ 107 But even the question of what the framers and ratifiers considered to be speech is broader than the one before us. We need only determine whether they considered the conduct at issue here — nude dancing in sexually oriented businesses — to be speech.5 All of the textual and historical evidence available to us is consistent with the conclusion that they did not.
¶ 108 Indeed, it seems an unassailable conclusion that the terms “speech” and “communication ... [of] thoughts and opinions” were not contemplated by those drafting and ratifying the constitution as bestowing any type of protected status on the type of nude dancing at issue in the current case. Any lingering doubt as to whether the citizens of this state desired to protect nude dancing in sexually oriented businesses is completely alleviated by the majority opinion’s excellent analysis of the constitutional debate addressing the scope of our state’s free speech guarantee, criminal statutes relating to the topic that were in effect both before and after the ratification of the constitution, and the manner in which our sister states have crafted and interpreted their own free speech protee-tions. Moreover, I am unable to discern any mechanism that has since come into operation to now constitutionally protect this type of nude dancing from state regulation. I am therefore unwilling to strike down the ordinance at issue in this case on constitutional grounds, and I concur, in the majority opinion.
. Indeed, some of Plaintiffs' dancers have litigated claims under the federal free speech clause and lost in that effort. Heideman v. S. Salt Lake City, 165 Fed.Appx. 627, 634 (10th Cir.2006).
. The term ''originalist” is commonly applied to the kind of interpretive approach I have identified here and will be explaining further. "Origi-nalist” refers to the focus the approach places upon the original meaning or intent of a constitutional provision. That term has been the subject of extensive scholarly debate and has come to include various nuances of meaning and various schools of thought. Moreover, it has come to be politically charged. An originalist interpretation is often perceived to necessarily dictate a politically conservative result. I have chosen to use the term "historical approach” because I believe it is as descriptive as "originalist” (it looks to the historical meaning of a constitutional provision at the time of the constitution's drafting and ratification), and I do not wish to suggest adherence to any particular strain of originalism. I intend the term "historical approach” to mean no more and no less than the meaning X ascribe to it in this opinion.
. Perhaps ironically, it is through the will of the majority that minority rights gain protection. After all, the adoption of a constitution is a majoritarian process and, due to the nature of our government, minority rights are always in some risk of curtailment. Amendment of our state constitution could presumably be utilized to remove rights previously given constitutional protection. If this conception of constitutional government is taken to its logical conclusion, the only true check on majoritarian power is the majority's own submission to and reverence for constitutionally enshrined protections.
. Indeed, Chief Justice Durham cites with favor a passage in which the Oregon Supreme Court concludes that the protection of expression under that state's constitution extended even to "explicit sexual conduct.” Infra ¶ 138 (quoting State v. Ciancanelli, 339 Or. 282, 121 P.3d 613, 629 (2005)).
. Accordingly, the issue of whether nude dancing in other contexts, such as in the arts, is speech is not before us.