Esto es la Universidad.... pública




Este blog está dirigido a vosotros, los estudiantes que acabáis de llegar a la Universidad. A la Universidad pública. A la universidad de todos. La que costeamos entre todos para que independientemente del nivel de vuestros ingresos familiares tengáis la oportunidad de aprender y de transformar vuestra vida. Para que aprendáis Derecho y, sobre todo, os convirtáis en personas pensantes y críticas, dispuestas a integraros inteligentemente en el mundo que os ha tocado vivir.

En este blog encontraréis primero las instrucciones para sacar el máximo provecho de "nuestro" esfuerzo conjunto a lo largo de estas semanas de clase. Pero también algo más: una incitación permanente a aprender, un estímulo para que vayáis más allá de la mera superación del trámite administrativo del aprobado. Escribía el piloto, escritor y filósofo francés Antoine de Saint Exupéry (1900-1944) en El Principito, que "sólo se conocen las cosas que se domestican". Por eso voy a tratar de convenceros de lo importante que es "domesticar" lo que vais a estudiar. Para que sintáis lo apasionante que es descubrir el mundo a través del Derecho. Pero no del Derecho a secas, sino del Derecho en su trayectoria histórica, en el marco cultural de la civilización en la que aparece. Para que comprendáis como sugería José Ortega y Gasset, que preservar nuestra civilización depende de que cada generación se adueñe de su época y sepa vivir "a la altura de los tiempos".

Para ello cada semana os diré qué tenéis que estudiar y cómo, os proporcionaré lecturas y os recomendaré ejercicios. También compartiré con vosotros pensamientos y consideraciones que vengan a cuento, al hilo de lo que vayamos estudiando.

Tendremos que trabajar mucho, vosotros y un servidor. Pero eso dará sentido a vuestro -nuestro- paso por la Universidad. Será un esfuerzo muy rentable para vuestro -mi- engrandecimiento como personas. Os lo aseguro.

Ánimo, y a por ello.

Un saludo cordial

Bruno Aguilera-Barchet

miércoles, 30 de marzo de 2022

THE FEDERAL OPTION

The US Federal State 

If in Teaching Guide 8 we saw how historically different political units tried to get together in order to be more powerful, namely the Composite monarchy, the Confederation or the Customs Union (Zollverein), today we will see what so far is the most effective Union of States: the Federal Model. 

It was born in the United States at the end of the 18th century, and despite the difficulties of its consolidation, the American Federal State has become a model to unite different States into a Powerful Union. Besides the United States the Federal Model has been adopted by some important states as Mexico (since 1824), Argentina (since 1853), Canada (since 1867), Brazil (1889), Australia (since 1891), Germany (since 1949), Republic of India (since 1950), The Russian Federation (since 1991). 

Map of Federal States in the World

In Spain you have a different model: a unitary state but highly decentralized in 17 territories that have a great deal of autonomy. In fact they are called “Autonomies”, a system created by the Spanish Second Republic in 1931 with the weird name of “Integral State”. After 1978 it is called the State of the Autonomies. It is still the rule today despite the fact that some “Autonomies” want to become Independent States: Namely the Bask Provinces and Catalonia. 

 The Federal System is based on a dualism. On one side you have the member states (also called “Provinces” in Canada) and on the other the Supra State that leads the Federation. There is a distribution of Power –usually defined in the Constitution- between the States and the Federal Supra State.  Usually it is the Federal State that has international representation and has assigned the defense of the territory, among other competences. It is a complicated system but it is a good way o creating a strong power preserving the singularity of member states. 

 The US is the most solid Federal Republic, because it has also a Presidential system of Government with a powerful Executive. Not all Federal States are presidential. Germany is a Parliamentary System, as the Executive Power vested on the Chancellor is designated by the Legislative Power. In the US the people elect on one part the Legislative Assemblies (Senate and House of Representatives) and on the other the President. In Germany People elect the members of the Legislative Assembly (Reichstag) and they designate the head of the Executive. There is a clear division of powers in a Presidential System and not so clear in a Parliamentary. 

We will study the most representative Federal model of State, the one of the United States, because despite many difficulties they have become a World Power because they have been able to have a strong federal government, preserving the identities of the member states. It is complicated, so the best way to understand it is to see how the US were formed and how Federalism works there. 

The Star Spangled Banner: the symbol of US integration

13 States and One Nation. 

 We already know from Teaching Guide 4 how the British colonization of North America brought 13 different colonies and how these after the Declaration of Independence of July 4, 1776 united to fight the British Crown. In order to lead war against their common enemy the 13 different colonies agreed on signing the Articles of Confederation in 1777. 


 Once they won the War in 1783 this document became the first US Constitution of the new 13 independent States, but in fact everyone of them had its own constitution, its own government and its own Legal System. The only common institution they shared was the Continental Congress. A non permanent Assembly where the 13 States had elective representatives.  They met when they had a problem, and if they decided anything it was extremely difficult to implement the decision as they had not a common budget, nor a common executive for enforce what was agreed. 


Congress nevertheless was not a good instrument to face crisis, even a small problem like the one that affected the State of Massachusetts in 1786: the Shay Rebellion. The anarchy resulting from the rebellion of an angry farmer could not be prevented by the Congress, and finally the wealthy citizens of Massachusetts had to pay from their pocket an army to reduce the rebels. That made the Founding Fathers nervous. 

George Washington, Alexander Hamilton, James Madison and some other Founding Fathers of the new nation considered that the 13 Colonies could not survive a major crisis, especially if the British, the French or the Spanish –in this time much more powerful than the United States- decided  to attack them. So they decided they needed a tighter union. 


 A big debate started with on one side the some that defended that states should remain completely autonomous, and others that considered they should choose the “Federalist option”, which meant creating a super state over the individual states that could be more operative and ensure a greater protection over internal or external dangers.  It was a long and fierce debate as many States did not want to give up their full autonomy. 

Finally adversaries reached a compromise: create a short common constitution, with a strong President elected by the States and a double legislature: one representing the states (Senate) and another one representing the citizens (House of Representatives), and a very strict separation of powers. Everything to ensure that the Federal State could be controlled by the states integrated in it. Finally after the approval of the US Constitution in September 1787, through a complex ratification process, that required the approval of the Bill of Rights (that became the first 10 amendments to the US Constitution), the 13 colonies got into the Union and elected as first President George Washington (1789-1797). 

Diagram of the US Federal Government 

The US Federal State was however still not fully consolidated when the Antifederalist Thomas Jefferson was elected as the third US President in March 1801. But fortunately the Chief Justice of the US Supreme Court, John Marshall (1801-1835) established the supremacy of the constitution over politics (Judicial Review) and preserved the Federal Union. 

John Marshall, the first US Chief Justice

The other problem was the expansion of the Union from the 13 initial States to the actual 50, mainly through the legal instrument called the Northwest Ordinance of July 1787. A long process that did not go without tensions, including a devastating Civil War (1861-1865) between the Slave and the Free States. Lincoln won the war and the Federal Union was preserved, but at what cost. 

Map of the American Civil War (1861-1865)

Even today there are tensions between the Republicans that want to cede more power for the States and the Democrats who on the contrary are allways willing to reinforce the Federal power. 

The important point is that despite all the problems the US are a World power because they have been able to develop a strong Federal Union compatible with the autonomy of its member states. This is why many states all over the world have chosen the Federal model and the Presidential System.

The Federal option in Europe

 Even some Europeans after World War I, seeing that European Nation-States had lost the control of the World, they considered that importing to the Old Continent the federal option would bring back European States reunited as a leading World Power.  

The Europe of the Versailles Treaty (1919)

Nevertheless bringing the Federal model to Europe has proven to be far more difficult for one reason: European States had been independent for centuries, they do not share the language, they don't have common institutions Remember that after the signing of the Westphalia Treaty  appeared a Europe of independent States, and after the French Revolution and all along the 19th century European Nation-States were extremely keen in keeping intact their sovereignty. Only when Europe was in ruins in 1918, some eminent figures started considering that European States they should get together in order to form a powerful union at the world level to confront the US and the USSR. 

Richard Coudenhove Kalergi

But despite some attempts at integration, like the Pan-European Movement of Count Coudenhove Kalergi (1923) or the Briands proposal for a European Union (1929), rising tensions due to strong nationalism led to another European suicide: World War Two. 

Aristides Briand

It is interesting however that even between 1939 and 1945 each side tried to reinforce some kind of union of States to get stronger. We have to mention the short attempt for a Franco-British Union (June 1940) tried by De Gaulle and Churchill. 

The Franco-British Union of 1940

And then Hitler tried to create a United Europe under the banner of National-Socialism creating a network of Vassal States. 

Hitlerian Europe

As a reaction there was a anti-hitlerian Europe with different initiatives to develop a way for European integration. The most effective one was the customs and economic union created by Belgium, the Netherlands and Luxemburg: the BENELUX (5 September 1944).      

                                                                                  

After 1945 followed some years of disarray while the destroyed European States were obliged to ask Americans for money for surviving. First in total disorder creating a Dollar gap. And finally, thanks to the initiative  Truman's Secretary of State, George Marshall in 1947 was established a coordinated aid that obliged the needed European States to work together if they wanted American money for reconstruction. It was the Marshall Plan. 

George C. Marshall

This period led to the first real attempt of creating an integrated Europe. An essay that aimed at establishing a Federal Europe in the Congress of the Hague (may 1948). At the end it was a failure, but at least it enabled the foundation of the Council of Europe (1949), with its extremely useful Human Rights Court that from Strasbourg protect Europeans citizens  from their respective States. 

  The Hague Congress (1948)

 Nevertheless it is clear that in 1949 it seemed impossible that the different European States could follow the same path in anything and especially not under a strong federal union. The World belonged to the Americans and the Russians.                                                                    

INSTRUCTIONS: First read the text included in your Materials (pages 211 to 252), before proceeding to answer the Concrete Questions, the Concepts and the General Questions. 

Concerning the Basic Chronology (pages 253-254) You should get familiar with all the dates. 

TOPIC FOR DISCUSSION IN CLASS: Would you like a Federal option for Europe? 

Please consider the following aspects: 

1. Understand the essence of the Federal model of State integration. Consider the differences with other models: Empire, Composite monarchies or Confederation.

2. Consider the US Federal approach. Why it appeared. Which were the main difficulties it faced for assuring its consolidation. How work the relationship between the States and the Federal State. 

3. How should European States procede in order to move to a Federal Europe.  

Winston Churchill speaking at The Hague Congress





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