The United States of America

1. The United States of America A Federalist Journey

2. My argument • The dynamics of a federalist system • Efficiency=sovereignty • What makes a system survive • A lesson for the EU – and for Italy

3. The Origin • The reason of the Federation: the survival of the States • The compromise: a Federation with enumerated powers • The constitutional outcome: a dual sovereignty

4. The need for a national bank • The American Bank: the Supreme Court expands the powers of the Federation

5. Slavery and Unity • 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

7. “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)

8. The Civil War and the Reconstruction amendments • 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

9. Re-reading the Constitution • “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)

10. Ultra-liberalism 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”

11. Brandeis • 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)

12. 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)

13. The Civil Rights Movement • Brown v. Board of Education (1954) and the “Incorporation” movement “who is against racism is against federalism”

14. Human Rights Act (1965) • 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

15. A critique • “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)

16. New Federalism:A Resurrection? • “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

17. Powers return to the States • 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

18. Gregory v. Hashcroft (1991) • “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.”

19. County of Allegany v. US (1992) • “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.”

20. The Originalist revolution • This is probably the only genuine trend that aims at restoring the “Lost Constitution” It couples with New Federalism without merging into it

21. The Obamacare Decision • Two rationales • Efficientist • Originalist

22. 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)