Judicial Federalism

Intergovernmental Relations

Unitary (France, Sweden)

Federal (U.S., Germany, Canada)

Confederal (Switzerland)

Two Origin StoriesPopular Constitution

Constitution is expression of “We the People” ratified by popular convention in states. Union is indivisible so long as people are.

Compact TheoryConstitution is compact joined by states who are sole members and can be dissolved by any single state.

Utah ConstitutionArticle 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 LesseeMarshall served as Martin’s atty, father had

surveyed much of disputed landSpencer Roane was neighbor and personal

enemy of MarshallJoseph 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 CrisisCongress passed significant tariffsSouth Carolina had major

import/export economySouth Carolina declares tariffs null in

port of Charleston and provides punishment of any federal agent attempting to enforce tariff law

Nullification CrisisAndrew 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 justicesPrimary question is not segregation,

but federal judicial powerRestatement 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 drugsMI 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 Freedom1st AmendmentCongress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof;

UT Constitution - Religious FreedomArticle 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 RightsUS, 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. ConstitutionJust 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