Judicial Federalism
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
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
The Fairfax Land Grant
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?
Cooper v. Aaron (1957)
Faubus at State Capitol
Ark. Nat’l Guard Turns Away Student
Students shouting
Eisenhower Goes with His Strengths
101st Airborne Arrives
Soldiers escort black students
101st Airborne Escorts Little Rock 9
Cooper v. Aaron
Signed by all 9 justices
Primary question is not segregation,
but federal judicial power
Restatement of Marbury v. Madison
Black journalist attacked by crowd
Jaffree v. Bd of School Commissioners
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
Michigan v. Long (1983)
O’Connor’s Majority Opinion:
“we find that we have jurisdiction in the
absence of a plain statement that the
decision below rested on an adequate
and independent state ground.”
Michigan v. Long (1983)
Stevens dissent:
If the Finnish police had arrested a
Finnish citizen for possession of
marihuana, and the Finnish courts had
turned him loose, no American would
have standing to object …
Michigan v. Long - Stevens dissent:
In this case, the State of Michigan has
arrested one of its citizens and the
Michigan Supreme Court has decided
to turn him loose … Michigan simply
provided greater protection to one of
its citizens than some other State
might provide or, indeed, than this
Court might require throughout the
country.
US Constitution - Religious Freedom
1st Amendment
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof;
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
Utah vs. U.S. Constitution - Gender Equality
UT Constitution, Article IV, Section 1.
The rights of citizens of the State of Utah to
vote and hold office shall not be denied or
abridged on account of sex. Both male and
female citizens of this State shall enjoy
equally all civil, political and religious rights
and privileges.
U.S. Constitution
Just Kidding!
Bowers v. Hardwick (1986)
Majority found that Constitution does not
“extend a fundamental right to
homosexuals to engage in acts of
consensual sodomy.”
Dissent noted that law applied to
heterosexuals as well and there was no
reason to restrict application to gays.
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