Costituzione

e
quadro internazionale
 gli argomenti


 Costituzione e centralità della
dimensione internazionale
 divisione dei poteri
 gli attori della politica estera
 l’evoluzione storica
Question 1

Perché la sfera internazionale è

fondamentale nel dibattito sulla
Costituzione?
 le debolezze della
Confederazione

 relazioni con l’esterno (ex. commercio)

 tasse e sicurezza nazionale

 espansione continentale
 Articles of confederation:
una «lega di stati sovrani»

“II. Each state retains its sovereignty, freedom, and

independence, and every power, jurisdiction, and
right, which is not by this Confederation expressly
delegated to the United States, in Congress
assembled.

III.The said States hereby severally enter into a firm

league of friendship with each other, for their
common defense, the security of their liberties, and
their mutual and general welfare, binding
themselves to assist each other, against all force
offered to, or attacks made upon them, or any of
them, on account of religion, sovereignty, trade, or
any other pretense whatever”
 l’espansione a Ovest:
una questione federale

 espansione interna ↔ «continentalismo»

 moltiplicazione stati V. ampliamento stati
esistenti: un impero senza colonie?
 chi decide tempi e modi ammissione?
centralizzazione
 →federazione → no conflitti tra stati →
sicurezza e libertà
The Northwest Ordinance, 1787
 Unione → Sicurezza #1
« Leave America divided into thirteen or, if you please,
into three or four independent governments--what
armies could they raise and pay--what fleets could
they ever hope to have? If one was attacked, would
the others fly to its succor, and spend their blood and
money in its defense?
Would there be no danger of their being flattered into
neutrality by its specious promises, or seduced by a too
great fondness for peace to decline hazarding their
tranquility and present safety for the sake of neighbors,
of whom perhaps they have been jealous, and whose
importance they are content to see diminished?
Although such conduct would not be wise, it would,
nevertheless, be natural. The history of the states of
Greece, and of other countries, abounds with such
instances, and it is not improbable that what has so
often happened would, under similar circumstances,
happen again.»

(John Jay, Federalist Paper n. 4, 1787)

 Unione → Sicurezza #2

[Nay] it is far more probable that in America, as in

Europe, neighboring nations, acting under the
impulse of opposite interests and unfriendly passions,
would frequently be found taking different sides.
Considering our distance from Europe, it would be
more natural for these confederacies to apprehend
danger from one another than from distant nations,
and therefore that each of them should be more
desirous to guard against the others by the aid of
foreign alliances, than to guard against foreign
dangers by alliances between themselves.
(John Jay, Federalist Paper n. 5, 1787)
 « The European nations, I believe to be not friendly to us. They were
pleased to see us disconnected from Great Britain; they are pleased to see
us disunited among ourselves. If we continue so, how easy it is for them to
canton us out among them, thas ey did the Kingdom of Poland? »
Congressman Olivier Ellsworth, Connecticut, 1788)
Question 2

La Costituzione e la divisione dei poteri in

politica estera
 Regulate Commerce (art.1)

 Declare War (art.1)

 Ratify Treaties (art. 2)

 Appoint Diplomatic Representatives (art.2)

Question 3

Quali sono i soggetti principali secondo

la costituzione?
 Presidente / Congresso
 quale relazione? “Islands of
ambiguity”
 quale tendenza? una «presidenza
imperiale»
Question 4

Quali sono i poteri del presidente?

 I poteri del Presidente

 Negotiate Treaties + Treaty Interpretation/Termination

 Appoint Ambassadors and Diplomatic Representatives

 Commander in Chief (art.2): “The President shall be

Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when
called into the actual Service of the United States”
Question 5

Quali sono i poteri del Congresso?

 Foreign Trade

 Declare War

 Indirect Responsibilities (allocations, immigration, norms

on naturalization, power of the purse, etc.)

 What is not expicitly stated

 Role of the Senate (treaties and appointments)

“To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof”
[Art.1, Section VII]

“To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes »
[Art.1, Section VIII]

To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water
[Art.1, Section VIII]
Treaties and appointments (art.2)

The President “shall have Power, by and with the

Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators
present concur; and he shall nominate, and by and
with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose
Appointments are not herein otherwise provided
for, and which shall be established by Law”
Question 6

aree di potenziale conflitto

istituzionale in politica estera?
 "The Constitution is an
invitation to struggle for the
privilege of directing American
foreign policy.”
[legal scholar Edward S.
Corwin, 1973]
 la Costituzione come
“invitation to struggle”

 nomine, trattati / accordi

 dichiarazioni di guerra / autorizzazioni
all’uso della forza
 trattati

 Tentativi presidenziali di distinguere tra “treaties” (binding

and “long term commitments”, e.g.: armaments) e
“agreements” (e.g.: trade agreements):

a) “congressional-executive agreements”: maggioranza

semplice delle due camere

b) “sole-executive agreements” : basati su iniziativa esecutivo

 da 1930s a oggi:
rafforzamento dell’esecutivo

 5% of international agreements stipulated

by the US have been ratified according to
the clauses of the article 2 of the
Constitution

 Reid v. Covert, (1957): Supreme Court ruled

that the Constitution supersedes
international treaties ratified by the US
Senate ("this Court has regularly and
uniformly recognized the supremacy of the
Constitution over a treaty“)
 Trattati e Accordi:
alcuni esempi

1) Treaty: North Atlantic Treaty (82 to 13)

2) Congressional-executive agreements:
Bretton Woods agreement (1945) or
NAFTA (1993)

3) Sole-executive agreements: “Destroyers

for Bases” (1940)
Question 7

Ci sono esempi di sconfitte presidenziali

in politica estera?
 Woodrow Wilson /League of Nations, 1919

 Jimmy Carter / Salt II, 1979

 Bill Clinton / the Kyoto Treaty, 1997

 Nomine presidenziali
controverse
1959: Clare Boothe Luce (Brazil)

2005: John Bolton (recess appointment, UN)

2009: Philip Gordon (Ass. Secr. of State)

2012: Susan Rice (UN)

 “There's no such thing as the
United Nations. If the U.N.
secretary building in New York
lost 10 stories, it wouldn't make
a bit of difference.”

[John Bolton, future US

ambassador to the UN]
Question 8

Quante volte gli Stati Uniti hanno

formalmente dichiarato
guerra?
- 1812
- 1845
- 1898
- 1917
- 1941

- Varie “autorizzazioni” a ricorrere all’uso della

forza
 UNA PRESIDENZA IMPERIALE?

“Resolved by the Senate and House of Representatives of the United States of America
in Congress assembled,
 That the Congress approves and supports the determination of the President, as
Commander in Chief, to take all necessary measures to repel any armed attack against
the forces of the United States and to prevent further aggression.
 Section 2. The United States regards as vital to its national interest and to world peace
the maintenance of international peace and security in southeast Asia. Consonant with
the Constitution of the United States and the Charter of the United Nations and in
accordance with its obligations under the Southeast Asia Collective Defense Treaty,
the United States is, therefore, prepared, as the President determines, to take all
necessary steps, including the use of armed force, to assist any member or protocol
state of the Southeast Asia Collective Defense Treaty requesting assistance in defense
of its freedom.
 Section 3. This resolution shall expire when the President shall determine that the
peace and security of the area is reasonably assured by international conditions created
by action of the United Nations or otherwise, except that it may be terminated earlier
by concurrent resolution of the Congress.

[Gulf of Tonkin, Public Law 88-408]

 Contro la presidenza imperiale:
War Powers Resolution (1973)
US Armed Forces can be sent into action abroad only:

- by authorization of Congress or
- in case of "a national emergency created by attack upon the
United States, its territories or possessions, or its armed
forces."

- Congress must be notified within 48 hours

- no more than 60 days (+ 30) for obtaining an authorization

by Congress or a declaration of War
 Joint Resolution 114
«Operation Iraqi Freedom»
(10.2002)
 (a) AUTHORIZATION- The President is authorized to use the
Armed Forces of the United States as he determines to be
necessary and appropriate in order to—

 (1) defend the national security of the United States against the
continuing threat posed by Iraq; and

 (2) enforce all relevant United Nations Security Council

resolutions regarding Iraq