JOURNAL: Giornale di Storia Costituzionale 36 (2018/II): Constitutional History and Historiography in Italy: key-elements and new trends. For the 70 years of the Italian Constitution

(image source: Giornale di Storia Costituzionale)

• Introduction: The memory of the constitution and the value of constitutional history (Luigi Lacchè)
• The Constitution’s “Workshop of ideas” (Sabino Cassese)
  Abstract:

What is behind the Republican Constitution? The members of the Constituent Assembly were not entirely aware of what they were creating. The heterogeneous character of the Constitutional Charter and the oscillation of judgments on the subject imply the necessity of a research on the history of the culture of the Constitution. Should we believe that the Constitution was the result of contingent events, of the “Resistenza” to fascism, substantially a reaction to the previous regime? or alternatively was it the result of a legacy, even fascist, statalism? More generally, what were the strands of ideas that contributed to the formulation of constitutional precepts? The text indicates some “paths” on which work to answer these questions.

• From the Eighteen century to Unification: the Italians and the discovery of constitution (Luca Mannori)
  Abstract:

The contribution sums up the recent evolution of the historical research about the concept of Constitution during the period of Risorgimento. The most significant innovation of the last decades has been the definitive abandoning of a teleological view of the nation building process. The struggle for the constitution fought by the Italian élites during the first half of XIXth century is not assumed anymore as the consequence of a generic tendency to the modernization, but as the effect of many specific phenomena, whose internal dynamics the historians are called upon to investigate and to connect. Up to the end of the XVIIIth century, the Italian political culture didn’t conceive the State as a general community, but as a mere political aggregate of intermediate bodies: so that, the idea of a political ‘Constitution’ of the commonwealth was completely outside the common experience both of the people and the ruling classes. This concept was progressively discovered during the first half of XIXth century; and the article offers a survey of the recent interpretations of this intriguing process

• Between fiction and reality (Reflections on historiographical trends from 1866 to nowadays) (Romano Ferrari Zumbini)

• Abstract

The article questions some long-standing and widely circulated interpretative trends in Italian legal and institutional historiography dealing with the birth and evolution of modern constitutionalism before and after the unification, focusing on the first years of the Albertine statute. Many entrenched assumptions are found to be based on a narrow set of early accounts characterised by a non-neutral and sometimes deliberately inaccurate portrayal of events. These results emerge from a factual comparison with findings from first-hand sources, often inexplicably disregarded (even though promptly available, as is the case with parliamentary records).

• An accepted challenge: monarchy as subject of study of Constitutional history (Paolo Colombo)
  Abstract

Paolo Colombo’s essay retraces the evolution of the Italian constitutional history in the last two decades from the point of view of the studies on constitutional monarchies, especially the Italian one. The subject of this research activity is seen as a challenge that, starting from the end of the Nineties (of the last century), encourages some scholars of history of political institutions to renovate the methods of analysis and the criteria for identifying the sources. Thus, several important lines of interpretation on the political and institutional DNA of our country have been renovated. It is also in this way that the constitutional history carves out a space for herself, consciously and measuredly autonomous from that of administrative history, which marked the first decades of the Italian history of political institutions. Therefore, the essay brings the future research prospects and the new challenges waiting for the constitutional history (and, in general, for the history of the institutions) to light, both from a strictly scientific point of view and from that of the role to play and the goals to pursue in the broader framework of the Italian cultural life.

• The monarchy in the constitutional history of the long nineteenth century: Italy, Germany, Austria (Anna Gianna Manca)
  Abstract

Object of the essay is a summary reflection on the monarchical institution in the long nineteenth century based on the acquisitions of the most recent Italian constitutional historiography but with an eye to the constitutional historiographies of Germany and Austria. The aim is to collect and highlight correspondences, referrals, parallels, synchronies, common features, which are both real and outlining trends, both structural and functional, both static and dynamic, between the historical events of the Italian constitutional monarchy and the aforementioned foreign monarchical- constitutional experiences.

• Work, democracy and new forms of citizenship: work- ers participation in a historical perspective (Leonardo Pompeo d'Alessandro)
  Abstract

From the first ideas on the establishment of a “constitutional regime” in the factory to the most recent reform of company law, the issue of worker participation in the control or management of companies has transversely covered the whole of the Twentieth century and the comparison on the different ways of its realization did not fail with the start of the new century. The essay reviews some of the different phases into which this comparison is structured in Italy and focuses on some periodizing nodes: the First World War, the Constituent period and the Seventies. The debate among the members of Constituent Assembly assumes a particular centrality at a time when the theme is reformulated in relation to the connection work-citizenship and to the birth of the newly defined concept of the “working citizen”. The decision to recognize the importance of the topic by enclosing it in a Constitution article (46 art.) made it possible to keep the debate alive and to reformulate the issue adapting it to the changes occurred in society, despite the breaking of the constituent compromise in the Seventies and the affirmation of a new relationship between capital and labor as a result of the loss of centrality of the large factory.

Itinerari

• Italian constitutionalists and the Resistenza (Giuseppe Filippetta)
  Abstract

Most of the Italian constitutionalists were not interested in the Resistance movement or they told it only as the Resistance of the anti-fascist parties, forgetting the fundamental and spontaneous role of Italian individuals and partisan formations. This happened because the thought of the Italian constitutionalists is characterized by an anti-individualism and anti-pluralism, inherited from the liberal-authoritarian legal thought and from the fascist one, that don’t allow them to think the single individual as a sovereign subject and direct protagonist of the juridical and political life.

• Constitution and Time. Regimes of Historicity of a legal-political Project (Mauriczio Cau)
  Abstract

Historical research does not seem to have sufficiently reflected on the plurality of the temporal horizons that define the “being in the time” of a Constitution. The contribution aims to analyze the “regimes of historicity” of the Republican Constitution (how it has related to time and how time  has shaped its forms), using in particular the category of “transition”, which has recently captured the interest of some historians. The focus is on the “founding era”, therefore on the beginning of the Republican project. Through the use of the category of transition some characteristics are re- discussed, in particular the coexistence of continuity profiles which, even in a context of strong discontinuity with the past, mark the start of the new constitutional order. The presence of concurrent temporal horizons suggests that the traditional chronology relating to the founding era should be partially revised, blurring the contours.

• A «Justice with new robe»? Judiciary and 1948 Constitution (Antonella Meniconi)
  Abstract

Prepared by a debate of about two years, especially among the insiders (magistrates and pol- iticians experts in law), the new Constitution of 1948 guaranteed autonomy and independence to the Judiciary. On the issues of justice, a compromise between the different political forces was re- alized, as in general, but the role of jurists such as Piero Calamandrei was decisive in establishing the new constitutional principles for the protection of judicial power. Nevertheless, the transition was a slow and fought process. Many years will be indeed necessary still for the independence of the magistrates to be fully established and the judiciary be freed from the hierarchical constraints that had previously dominated it even in the exercise of jurisdiction.

• Texts and contexts of the mercy’s power (1848-2018) … to be continued (Monica Stronati)

• Abstract

This contribution deals with the mercy’s power (Article 87 of the Italian Constitution). The judgement of the Constitutional Court (No. 200, 2006) has changed by way of interpretation a constitutional custom dating back to the time of the Albertine Statute. The decision of the Court has attributed exclusively to the Head of State the right to exercise this power, thus removing any political responsibility from the act, and has made this institution solely devoted to humanitarian purposes, thus denying the political and multi-functional nature of the act of granting pardon. The marginality of the institution has not caused a change in the form of Government, however it has brought to light a series of issues and problems connected to the relationship between powers, particularly to the role and function of the Head of State, its relationship with the executive power, and the relationship between executive and judicial power.

• Constitution and Administration (Guido Melis)
  Abstract

In the Italian Constitution only two articles, 97 and 98, are explicitly about Public Administration. Even if this subject appears indirectly in some other points of the text, but in general the constituents gave few attention to this issue. The members of the assembly did not have any experiences, or studies, about the world and culture of public office. Even the political parties were outside this topic. The debate about Public Administration went on with lack of participation and modest follow ups. All the profitable work made by the two Fortis committees (by the second in particular) had been ignored in anticipation of the Constitution. Massimo Severo Giannini, who tried to introduce the consciousness of all the great transformations during the thirties in public authorities field, hadn’t been elected in Assembly. Even if he was chief of staff at the Ministry for constituent Assembly his contribution remained the only one. From the point of view of the attention to the administrative state, to new public agencies, to the imprenditorial state, the Constitution was born already old.

• The Costituente on the radio: Teaching Democracy in the Italian media to the dawn of the Republic (1945-1946) (Giacomo Demarchi)
  Abstract

The paper aims to offer a first reconstruction of the role that the mass media had in spreading the new democratic values in the early post-war years. With this purpose, we study the productions of the Ministero per la Costituente addressed to the mainstream citizens and the relationship between the state radio-cinematographic institutions and the high legal culture. We have focused the investigation on publications and archival sources of the Ministero per la Costituente, the digital archives of Teche RAI and the Istituto Luce, as well we use some personal archives, such as the Umberto Calosso archive.

• Processes of constitutional enforcement and periodizing of the Republic (Cesare Pinelli)
  Abstract

In the Italian legal and political environment, enforcement of the 1948 Constitution has always raised the greatest attention, due both to the changes, which the very approval of the constitutional text had promised and to the deep divide that characterized the political system in the decades following its entry into force. After having premised that, according to a widely shared scholarly opinion, the Constitution enforcement has been accomplished at the end of the 1970s, the Author observes that such opinion obliterates significant findings, and proposes a more complex reconstruction of the Constitution enforcement that takes into account of the legal developments no less than of the political changes that have affected the country.

• A review of the studies on the Italian Parliament between an ever- changing electoral legislation and a static form of government (Nicola Lupo)
  Abstract
  
  The contribution offers a review of the studies, of constitutional law and political science, devoted to the Italian Parliament and to the electoral legislation in the last 30 years, focussing mainly on monographs. The attempts, recurring but unfruitful, to revise the Constitutional provisions on the form of government, as well as the very frequent changes of the electoral law brought to a substantial stalemate of the reforms and updates of the rules of procedures of the Chamber and Senate. Furthermore, they discouraged a full development of parliamentary studies, especially preventing the completion of organic treaties of parliamentary law and practice. Concerning electoral legislations, the recent and incisive judgements of the Constitutional Court are stimulating a growth of the constitutional law studies on the features of electoral systems.
  
• Sovereignty: re- turn to the past? (Giovanni Di Cosimo)
  Abstract

The essay analyzes the latest developments in sovereignty that seem to configure a return to previous conceptions. To this end, it traces the evolution of the concept from the liberal age, and comes up to the recent emergence of the sovereign conception.

Virtute et conoscenza

• The cultural identity of the “Constitutional History”. Reflections on the last 25 years of scientific production (Marco Fioravanti)
  Abstract

Academic teaching and research on the subject of Constitutional History up to the end of the 1980s was almost absent and the production of handbooks in this direction was little more crowded. However, in the last 25 years, the picture has strongly changed and a scientific and cultural profile of Constitutional History has progressively been affirmed, not easily referable, however, to a precise disciplinary space. In this article, I will limit myself to offer a fresco, necessarily incomplete, of the most important handbooks and essays in the field of the History of the Constitutions, Constitutional History, History of Public Law and History of Institutions, leaving aside the distinctions of scientific- disciplinary sectors, inappropriate to identify the cultural identity of Constitutional History.

Ricerce

• Occultus propter metum. Esotericism and exoterism in the thought of Carl Schmitt about the State (1938-1948) (Carlo Pontorieri)
  Abstract

Through a survey of the writings of Carl Schmitt between 1938 and the post-war period, the author identifies a line of self-interpretation of the complex intellectual and political biography of the jurist from Plettenberg, which feeds on traces, implicit quotations and allusions to the reader. The essay on Thomas Hobbes in 1938 thus becomes the sign of a turning point in the relationship between Schmitt and the Nazi regime, as evidenced by the diaries of the writer Ernst Jünger. In addition, it shows a peculiarity of Schmitt’s writings, a double reading level that can be found as well in the post- war years.

• A weak State? The relationship between public and private in the United States of America. A his- torical-institutional perspective (Lorenzo Castellani)
  Abstract

The article analyses the recent historiographical debate ongoing in the United States of America on the weakness of the American state. For classical historiography the United States are considered as a statelessness society. Most of the most recent studies on the American institutions are contesting the idea of weak State advocated by the classical historiography of the twentieth century. Considered this debate, the second part of the article focuses on the public-private governance in historical terms. It analyses the relationships of public-private governance through history and it shows cooperation between private and public institutions and the powerful penetration of the State within the American society.

• A great administrator for a Great Society: the presiden- tial reorganization authority under Lyndon B. Johnson (Cristina Bon/Gauco Vecchiato)
  Abstract

Through the historical analysis of the Presidential reorganization authority, this essay aims at showing how, far from being unequivocally sculpted in the American Constitution, the Chief Executive decision-making power has changed over time, especially during the 20 th Century. On this respect, while on the one hand the presidential reorganization authority has certainly represented a useful tool for granting to any President’s political program a successful outcome, on the other hand this authority can be only granted by the Congress, which recognized the reorganization power to the President only in the time span going from 1932 to 1984. At the same time, this historical grant of authority has also been responsible for the increased public perception of a wide decision- making ability conferred by the US Constitution to the President. A case to the point is represented by Lyndon B. Johnson’s Presidency, which made an extensive use of the reorganization authority granted by the Congress and took advantage of this power to realize one of the most significant efforts made by an American President to adapt the federal administration to the changing needs of the American society.

Librido

• Antonino Scalone reads Carl Schmitt, Legalità et legalità
• Thirteen reading proposals

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