Intergovernmental Relations
Unitary (France, Sweden)
Federal (U.S., Germany, Canada)
Confederal (Switzerland)
Two Origin Stories
Popular Constitution
Constitution is expression of “We the
People” ratified by popular convention in
states. Union is indivisible so long as
people are.
Compact Theory
Constitution is compact joined by states
who are sole members and can be
dissolved by any single state.
Utah Constitution
Article I, Section 3.
[Utah inseparable from the Union.]
The State of Utah is an inseparable
part of the Federal Union and the
Constitution of the United States is
the supreme law of the land.
Martin v. Hunter's Lessee
Marshall served as Martin’s atty, father had
surveyed much of disputed land
Spencer Roane was neighbor and personal
enemy of Marshall
Joseph Story – nominated by James
Madison, became first professor of
constitutional law at Harvard, writes first
major commentary on constitutional law
Art. I, Sec. 10
No state shall enter into any treaty,
alliance, or confederation; grant letters
of marque and reprisal; coin money;
emit bills of credit; make anything but
gold and silver coin a tender in payment
of debts; pass any bill of attainder, ex
post facto law, or law impairing the
obligation of contracts, or grant any title
of nobility.
Nullification and Interposition
Nullification: State declares federal
law null and void
Interposition: State interposes its
sovereignty between the federal
government and its institutions or
individuals.
Worcester v. Georgia (1832)
GA required whites living in Cherokee
lands to take oath pledging loyalty to
state – jailed missionaries for refusing
and supporting Cherokee land claims
Sup Ct held that GA did not have power
to impose such laws in Cherokee
country.
Worcester v. Georgia (1832)
Georgia legislature resolves:
"Any attempt to reverse the decision of
the Superior Court [of GA]... by the
Supreme Court of the United States,
will be held by this State as an
unconstitutional and arbitrary
interference in the administration of
her criminal laws and will be treated
as such."
Worcester v. Georgia (1832)
Justice Story:
“The court has done its duty,
now let the nation do theirs.”
President Jackson (apocryphal):
“John Marshall has made his
decision, now let him enforce it.”
Nullification Crisis
Congress passed significant tariffs
South Carolina had major
import/export economy
South Carolina declares tariffs null in
port of Charleston and provides
punishment of any federal agent
attempting to enforce tariff law
Nullification Crisis
Andrew Jackson:
The laws of the United States must be
executed ... Those who told you that
you might peaceably prevent the
execution have deceived you....
Disunion by armed force is treason.
Are you really ready to incur its
guilt?
Michigan v. Long (1983)
MI police search Long’s car/ find drugs
MI Supreme Court finds search
illegitimate, seemingly relies on
federal 4th Amendment cases, rather
than MI Constitution, but reaches
different result than U.S. Sup Ct
UT Constitution - Religious Freedom
Article I, Section 4. [Religious liberty.]
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.
U.S. v. UT Constitution - Gun Rights
US, Amendment 2:
A well regulated militia, being necessary to the
security of a free state, the right of the people to
keep and bear arms, shall not be infringed.
Utah, Article I, Section 6. [Right to bear arms.]
The individual right of the people to keep and
bear arms for security and defense of self, family,
others, property, or the state, as well as for other
lawful purposes shall not be infringed; but
nothing herein shall prevent the Legislature from
defining the lawful use of arms
Bowers v. Hardwick (1986)
Majority found that federal
Constitution’s 14th Amendment
does not “extend a fundamental
right to homosexuals to engage in
acts of consensual sodomy.”
Kentucky v. Wasson (1992)
KY Supreme Court finds both rights
against anti-gay discrimination and
sexual privacy within state constitution.
Ct found that law "infringed upon the
equal protection guarantees found in
the Kentucky Constitution.“
KY followed similar state Sup Ct decisions
in NY, PA, and lower court decision in MI
Same sex marriage and states