Part I: The Italian Constitution at 70

Francesco Duranti 

Università per Stranieri di Perugia

Editors’ Note: This is the first part of a two-part post to mark the 70th anniversary of the Constitution of Italy.  Part II, to be published on Friday 20 July, will build on Part I by offering reflections on the problems shown by the Constitution over time and its future prospects.

Since January 1, 1948, more than seventy years of the Italian Constitution have passed. In this long period, which began with the birth of the democratic state in Italy and has reached the present day, the Italian Constitution (hereinafter ‘the Constitution’ or ‘the Charter’) has gone through different phases and seasons, characterised by complex and articulated dynamics.

In the first phase, immediately following its entry into force, the Constitution had to face the difficult challenge of its effective implementation, having been grafted into a legal system still deeply marked by the previous authoritarian regime. The problems deriving from the objective and complex implementation of the new constitutional norms were, then, inextricably intertwined with that phenomenon which was traditionally defined as “majority’s obstructionism”. This means the intention, even though it was not manifestly expressed by the parliamentary majority of the time, to implement the Constitution slowly, postponing over the years the establishment of entire, significant parts of the new Charter, such as the Constitutional Court (established only in 1956), the High Council of the Judiciary (in 1958), the Regions with ordinary status (1970) or the referendum (1970).

The “constitutional defrost” that characterises the second phase of the constitutional order, began only in the 1970s. During this phase, important normative reforms – above all in the field of civil/social rights – represent the most evident form of effective implementation of the new constitutional system,

But in coincidence with this slow actuation of the constitutional text, the plan, supported by some political forces, to introduce a “great reform” of the Charter began to assert itself in the mid-1980s, with the attempt to effect a profound modification of the constitutional structure relative to the parliamentary form of government, considered the fundamental cause of the instability and inefficiency of the executives. Thus, three Bicameral Commissions for Constitutional Reforms (in 1985, 1992 and 1997) were established, which were unable, in any case, to conclude their work with the approval of any constitutional revision. The attempt at “great reform” of the Constitution, however, continued with two broad plans for revision, by a government initiative, approved in Parliament – in 2005, by a centre-right majority; in 2016, by a centre-left majority – but rejected, in both cases, with a solid majority of voters against them, in the successive constitutional referendums held pursuant to article 138 of the Constitution.

The Italian Constitution had thus to wait more than thirty years before being put into practice and, over the past few years, has been the various attempts – all of them failed – to amend it. We can, therefore, try to outline a brief overview of these first seventy years of the Italian Constitution.

A first element that clearly emerges is the ability of the Charter to withstand the various, complicated challenges that have faced it over all these years: attempts at subversion; political and mafia terrorism; collapse of the political system that generated the Charter; unprecedented economic crisis – through the overall consolidation of the democratic system and the wider development of pluralism (social, political and institutional) that the Constitution itself has been able to conform since its very entry into force. All this thanks to its enduring expansive force, to its ability to adapt to change, guiding it and directing it towards the objectives indicated by the constitutional norms.

A second element of evaluation is represented by the overall very high performance provided by the Charter, in particular in terms of the development of civil society and the guarantee of the effective rights of freedom established by the Constitution, through an evolving interpretation effectively implemented also by the case-law of the Constitutional Court and of the common judges themselves. With the result of achieving – in harmony with the acquisitions of European democratic constitutionalism after the Second World War – the three fundamental aims of the Constitution, consisting of: 1) the guarantee of pluralism and the regulation of social conflict; 2) the inviolability and universality of fundamental human rights; and, 3) the creation of a system of limited constitutional powers placed in a condition of real, effective, balance.

A third important element – also of a comparative nature – is constituted, then, by the substantial flexibility of the constitutional order, together with the formal rigidity of the text, particularly evident in terms of form of government and regional model of State.

As far as the form of government is concerned, it is sufficient to think of the different dynamics (consensual or majority) of its effective functioning over the years or of the evolution of the practice that over time has been determined with regard to the powers of the President of the Republic in the parliamentary system, whose overall function has been increased to coincide with the crisis of the political system and with the weakening of the Parliament-Government relationship.

As for the distribution of powers between central and local authorities, the regionalism configured by the original text of the Charter was accentuated by the overall revision of Title V of the Constitution adopted in 2001, just as the relations between the Italian constitutional order and the supranational/international (EU/ECtHR) one have developed widely, in the context of an ever greater integration between this orders, together with the emergence of the multilevel dynamic – particularly evident in terms of the protection of fundamental rights – that now characterizes the Italian system together with the continental ones, according to common lines of development of contemporary constitutionalism.

The multiple virtues of the Constitution – which has inspired, at comparative level, other constitutional Charters (e.g. the Spanish one on the subject of fundamental rights) and which make it, today, one of the most long-lived Constitutions in Europe – allow, thus, to draw up a positive assessment of its first seventy years because of its social roots, the values it expresses in its fundamental principles, the solidity of the system of freedoms, the flexibility of its form of government and model of State.

Francesco Duranti is Associate Professor of Comparative Public Law at the Università per Stranieri di Perugia (Italy).