Hello ladies and
gentlemen! Are we ready for some hot and steamy constitutional action?
You’re damn right we are!
Amending the Italian Constitution
Now I bet
you are all wondering how difficult it is for the Italian Constitution to be
amended? Well to be rather candid, it’s pretty damn difficult! In fact, since
the Italian Constitution was enacted on January 1st, 1948, it has
only been successfully amended 15 times.[1] Now math isn’t really my
expertise so I am going to forego trying to figure out the average number of
years between amendments, but I think we can all agree that they are pretty
infrequent. However, this infrequency is not the least bit shocking given the
amendment
process written into the Italian Constitution. In order to adopt an amendment,
each house of parliament must achieve
and absolute majority after two separate
debates that must be separated by a minimum of 3 months.[2] Now if that wasn’t difficult
enough, there is still the opportunity for a referendum: “Said laws are
submitted to a popular referendum when, within three months of their publication,
such request is made by one-fifth of the members of a House or five hundred
thousand voters or five Regional Councils. The law submitted to referendum
shall not be promulgated if not approved by a majority of valid votes.”[3] This process may seem
rather frustrating; however the framers did input a stipulation: if both houses
of parliament receive a 2/3rds majority on their second vote then a referendum
is no longer an option.[4]
At this
point I’m sure you all may be curious as to why this amendment process is just
so darn difficult. Even Elkins, Ginsburg, and Melton argue that the longevity
of a constitution is based, in part, on a higher than average level flexibility.[5]
Well it all goes back to the same theme we have discussed here on this forum
nearly every week thus far, fear of authoritarian rule. As we can see,
Parliament maintains most of the authority over the amendment process, making
it virtually impossible for and actor to use this channel to consolidate power.
This idea fits well into the post-WWII constitutional model that was strictly
anti-majoritarian and placed high “amendment hurdles” that Professor McElwain
discussed in lecture today.[6]
Similar
to many other post-WWII constitutions, the Italian Constitution implemented a
system for judicial review as well. Del Duca wrote, “Italy and Germany led many
European countries in adopting a “centralized”[sic] system of judicial review
vesting the power to review the constitutionality of norms or actions in a
single specialized court”.[7] Del Duca is talking about
the Constitutional Court which was defined within the Italian Constitution,
articles 134-137. According to Del Duca, the first cases “…were consolidated
and referred (my emphasis) to the
Constitutional Court for ruling..” allowing us to imply the a passive form of
judicial review.[8]
I really
don’t want to sound like I am simply rambling on, and unfortunately my sense of
humor has significantly decreased since I first began writing this post. Thus I
will close with one final point. Professor McElwain proposed the question as to
whether or not the amendment hurdle and the ratification hurdle were relatively
equal or not? From our early posts we know that the Italian Constitution was
ratified by the Constituent Assembly by a vote of 453 to 62. And as I have
discussed, there have only been 15 amendments that have been successful show
far. There is an incredibly large dissonance between the two; I purpose this
was due to the fact that the Constituent Assembly was an interim government and
was only temporary. However, this is a relatively weak thesis, and I have no
scholarly sources to back up this claim. What do you guys think? I look forward
to hearing your ideas!
[1]
http://en.wikipedia.org/wiki/Constitution_of_Italy
[2]
https://www.constituteproject.org/constitution/Italy_2012
[4]
https://www.constituteproject.org/constitution/Italy_2012
[5] Elkins, Zachary, Tom Ginsburg, and James Melton. The Endurance of National Constitutions. New York:
Cambridge UP, 2009. Print.
[6] Kenneth McElwain, PS337 Lecture 11.2 slide 16
Introduction of Judicial Review in Italy - Transition from Decentralized to Centralized Review (1948-1956) - A Successful Transplant Case Study; Del Duca, Louis F.
Introduction of Judicial Review in Italy - Transition from Decentralized to Centralized Review (1948-1956) - A Successful Transplant Case Study; Del Duca, Louis F.
Haleigh Bavol
ReplyDeleteDennis, thank you for entertaining blog post! After reading your post I believe you thoroughly explained the Italian amendment process and the level of difficulty there is in order to amend the constitution. Furthermore, I agree with you that the constitution allows for passive judicial review and cases are referred to the courts rather than the courts choosing cases. With further research I found that Italy has many more informal amendments rather than changes to the actual text of the constitution, “The flexibility of the constitutional arrangement allowed for its subsequent adaptation to changes of the political regime without formal amendments to the constitutional text,” (1). Since the 1990’s there have been many changes to the function of government without actual changes to the constitution’s text, for example the formal rules of the political process of parliament (1). Thus, this suggests that the judicial system is making informal amendments to the interpretation of the constitution. According to the Besso reading, there is evidence that the increased difficulty in amendment hurdles leads to more informal amendments, (2).
With regards between the amendment rule and the process that the constitution was ratified, I believe there is not much of a correlation. The amendment rule is not identical to Italy’s constitution’s ratification process of a Constituent Assembly. The only similarity is the use of a referendum, which was the method for choosing the assembly, however that is only a small part of the actual amendment process.
1: CTOOLS CCW Resource: Italy Intro folder
2: Besso, Michael. 2005. "Constitutional Amendment Procedures and the Informal Political Construction of Constitutions." The Journal of Politics 67 (1):69-87. (CTOOLS)
I agree with the points made in Dennis' post and would like to use my comment to discuss both the worth of including the possibility for a referendum in the constitution and larger number of informal amendments as a result of more hurdles in the amendment process. The Italian constitution possesses the ability to be amended, but, as Dennis discussed, it is a difficult and layered process. Referendums only complicate the process further. However, I do agree with the decision to include them because of the emphasis they place on the anti-majoritarian nature of the Italian Constitution. It allows for the opportunity for minorities to possibly add to changing constitutional processes (1). Perhaps this additional stipulation is as annoying as Dennis described it, but it adds to the consensual nature of the constitution that contextually was so adamant on maintaining this as its essence.
ReplyDeleteBesso's discussion of amendment hurdles supports this claim, and as discussed by Haleigh, and confirms the thinking that the more difficulty there is with making amendments to a constitution, the more informal changes a country will make (2). Although Besso is discussing the American constitution and its amendment procedures, this idea still does reign true for Italy. Informality, in fact, is a constant in the amendment process of the Italian constitution. The Italian courts follow a less common system of constitutionality questioning, called "centralized system of judicial review." The Italian constitution truly took hold in 1956 after the constitutional court, provided for in the postwar constitution, finally began functioning. In Italy’s centralized system of judicial review, the ordinary courts submit questions of constitutionality to the special constitutional court; however, these courts may not decide such questions themselves (1). This decentralized the process somewhat, but more importantly it entices the process of informal amendments to the constitution. The smaller courts refer the cases, and the constitutional court takes them on. Honestly, a theme I’ve derived from my reading on the Italian constitution is the lackadaisical nature of the government. The nature of the country’s judicial review processes are another reflection of this.
1. Lijphart, “Patterns of Democracy” Chapter 12
2. Besso, Michael. 2005. "Constitutional Amendment Procedures and the Informal Political Construction of Constitutions." The Journal of Politics 67 (1):69-87. (CTOOLS)
Nikhil Gulati
ReplyDeleteI would like to begin by saying that I agree with Dennis’ analysis of the complex Italian amendment process. I would like to focus on the Constitutional Court and how it fits in with the rest of the Italian government. As we have previously discussed, the Italian Government is very legislative-centric with little power equality between the different branches of the government. This relationship also exists between the legislative and judicial branches as Italy has a civil law system that creates a stronger legislature. As outlined by title six of the Italian Constitution, the Constitutional Court can only rule on cases that are referred to them, which is an example of passive judicial review in a civil law system (1). The Constitutional Court cannot reject any law that it wants; it must wait until a region or legislator decides to submit a law for review. This fact yet again highlights the Italian fear of authoritarian rule as the legislative dominance over the judicial review system only allows for review when it is appealed. The Italians took every precaution to avoid placing too much power outside of the legislature and we see this with the Constitutional Court.
I also want to comment on the inequality between amendment and ratification hurdles. As Dennis mentioned, the Constitution was ratified with an overwhelming majority yet there have been 15 amendments since then. I think that the number of amendments is concurrent with the adoption of the Constitution by the Constituent Assembly. In a span of sixty-six years, there have been 15 Italian amendments as opposed to 27 US amendments in 230 plus years. The rate of amendment adoption in Italy is pretty high relative to that of the US and I think that this is a result of the desire to quickly adopt a new Constitution after World War II in Italy. The Italians wanted to create a new government in a timely fashion in order to avoid any possibility of an authoritarian rise to power by establishing a Republic. As a result, they have needed many changes to fix the Constitution and have done so despite the complicated amendment process.
1 – https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf
2 - http://www.archives.gov/federal-register/constitution/
Dennis provides a great starting point for the discussion on Italy’s amendment process. For my comment, I plan on focusing on whether or not the amendment rule we find in the Italian constitution is identical to the constitutional adoption process.
ReplyDeleteAs we have discussed in previous blog posts, the Italian Constitution was composed by a constituent assembly. This assembly was elected by means of proportional representation. (1). Following the drafting of the constitution, they voted on whether or not it would be approved, which it was overwhelmingly so (1). In Article 138, we find the amendment process. It states, “Laws amending the Constitution and other constitutional laws shall be adopted by each House after two successive debates at intervals of not less than three months, and shall be approved by an absolute majority of the members of each House in the second voting” (2). While it is not identical, the process is similar enough, as a proportionally represented elected body votes on whether or not to amend the constitution following months of discussion just as the constituent assembly partook in. One difference of this provision is that it requires two votes in favor from each legislative body as opposed to the constituent assembly, which only had one.
However, this is not all that this article provides. It also states the these laws are submitted to a popular referendum when such a request is made by either a fifth a members of the house, 500,000 voters, or 5 regional councils (2). This is where the amendment process and the constitutional adoption process truly differ as there is no such mention of a popular referendum occurring following the original drafting of the constitution in 1947.
One final point that must be noted is that this article provides that if the law is passed by two-thirds majority in both houses, then a referendum will not be held (2). As nearly 90% of the constituent assembly voted in favor of the constitution it is unknown how they would have handled a situation where it received less than two-thirds of the vote. It is possible that the assembly may have followed this second provision as well, but since there is nothing to support this, it is merely conjecture.
1. http://en.camera.it/4?scheda_informazioni=24
2. https://www.constituteproject.org/search/topics#?key=amend&cons_id=Italy_2012