The United States of America

A Federalist Journey

The dynamics of a federalist system

Efficiency=sovereignty

What makes a system survive

A lesson for the EU – and for Italy

My argument

The reason of the Federation: the survival of

the States

The compromise: a Federation with enumerated powers

The constitutional outcome: a dual sovereignty

The Origin

The American Bank: the Supreme Court

expands the powers of the Federation

The need for a national bank

Two economies

The Western expansion of the Union and slavery: the Missouri compromise and the Kansas non-slavery status

Slavery and constitutional reforms

Dred Scott v. Sandford (1857): North and South sovereignty

Slavery and Unity

“The States of Missouri and Illinois are

bounded by a common line. The one prohibits slavery; the other admits it. This has been done by the exercise of that sovereign power which appertains to each. We are bound to respect the institutions of each, as emanating from the voluntary action of the people” (Dred Scott)

From The United States are…

To The United States is…

Thanks also to the Constitutional Amendments (13°, 14°)

Lesson no. 1: when the Court failed to find a balance, the war began

The Civil War and the Reconstruction amendments

“Both the states and the United States existed

before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the confederate government” (Lane County v. Oregon)

Re-reading the Constitution

Lochner v. New York: do we have the human right to work to death?

1935: Schechter Poultry (Roosevelt’s Dred Scott)

Roosevelt’s menace (everybody agreed with him in the Congress): the Supreme Court was “persuaded”

Ultra-liberalism

The people of the United States are now

confronted with an emergency more serious than war. Misery is widespread, in a time, not of scarcity, but of overabundance. The long-continued depression has brought unprecedented unemployment, a catastrophic fall in commodity prices, and a volume of economic losses which threatens our financial institutions”

“There must be power in the states and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the states which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity” (Schechter, dissenting)

Brandeis

Lesson no. 2: a “deferential” Court created social rights

AND placed them at the Federal level

“The federal government is the government of all the States, and all the States share in the legislative process by which a tax of general applicability is laid”. (NY v US, 1946)

Brown v. Board of Education (1954) and the

“Incorporation” movement

“who is against racism is against federalism”

The Civil Rights Movement

Enforcing the Fifteenth Amendment (after

the Civil War)

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislatio

Human Rights Act (1965)

“there can be no doubt that we have an

indestructible Union, but the Court’s opinion in this case is the la test in a series of decision which casts some doubt upon whether those States are indeed “indestructible””

(Rehnquist, Fry v. United States, 1975)

A critique

“If the administration of the desert was given to

the Federation, we would run out of sand in a few weeks”

Federation is

Expensive

unefficient

New Federalism:A Resurrection?

States as:

Laboratories

The most efficent level of government

The most efficient level of satisfaction

Lesson no. 3: the return to the States is not a return to the past

Powers return to the States

“As every schoolchild learns, our Constitution

establishes a system of dual sovereignty between the States and the Federal Government.”

“This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.”

Gregory v. Hashcroft (1991)

“But the Constitution protects us from our own

best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”

County of Allegany v. US (1992)

This is probably the only genuine trend that

aims at restoring the “Lost Constitution”

It couples with New Federalism without merging into it

The Originalist revolution

Two rationales

Efficientist

Originalist

The Obamacare Decision

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” (Roberts)