La Corte Suprema nel federalizing process degli Stati Uniti d'America

Abstract

In this research I want to investigate and study federalism and the judicial review in the USA. I want analyze the complex connection between federalism (as “territorial pluralism of power centers”), judicial review (constitutional justice) and the objectives of system‟s democratic stabilization and development. In this dialectic, the Supreme Court has the primary and delicate task of bringing order into the chaos of the law through the only authoritative and binding interpretation of the constitutional provisions and the choice of weighted combination of unity and diversity to be safeguarded. One major platform of a democratic form of governance is the principle of separation of powers. Federalism, as territorial and vertical separation of powers, is a central principle of government in the United States of America. It is in fact recognized as a plurality of power centers, a power split and shared by different levels of government and institutions, independent and coordinated, in a delicate game of autonomy, mutual control and interdependence. Justice Salmon Chase explained the necessity for the constitutional limitations that prevent the concentration of power on either the state or national level: "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States". The U.S. Constitution is hardwired with the tensions of that struggle, and Americans still debate the proper role of the national government versus State government. Chief Justice John Marshall, first articulated the Court's power to exercise judicial review in the famous case of Marbury v. Madison (1803), noted that this question “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” Judicial review is the power to strike down unconstitutional acts of the national legislature and executive, as well as state actions. The purpose of my investigation is to analyze the federalism as “federalizing process” and the evolution and impact of the case-law (jurisprudence) of the Supreme Court on a dual system of government and on a democratic level of the legal order. I want to investigate how the Supreme Court, with its rule making-power (de facto discretionary political and normative power), has interpreted and protected the Constitution (on the subject of federalism and rights). This 4 research aims to provide a comprehensive overview of the evolution of case-law and the general interpretative approach that has been adopted by the Supreme Court in the matter of federalism (what kind of relationship between federalism and rights?). Particular emphasis is placed on federalism, judicial review, mechanism of checks and balances and also on the counter-majoritarian difficulty (the unelected judges of the Supreme Court has the final say on the issues it decides, they can use the power of judicial review to nullify the actions of elected legislators or executives, so they act contrary to “majority will” as expressed by representative institutions). I want to understand the complex relationship between federalism, judicial review and democracy in the USA. This idea is still deeply controversial!