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Judicial Federalism. Intergovernmental Relations. Unitary (France, Sweden) Federal (U.S., Germany, Canada) Confederal (Switzerland). Two Origin Stories. Popular Constitution

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Presentation Transcript
intergovernmental relations
Intergovernmental Relations

Unitary (France, Sweden)

Federal (U.S., Germany, Canada)

Confederal (Switzerland)

two origin stories
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
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 lessee1
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
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.

n ullification and interposition
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
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 18321
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 18322
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
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 crisis1
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
Cooper v. Aaron

Signed by all 9 justices

Primary question is not segregation, but federal judicial power

Restatement of Marbury v. Madison

michigan v long 1983
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 19831
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 19832
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
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
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
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
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
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
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
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