#2 CHANGES TO THE CONSTITUTION

Hi reader,

today CTZN.eu team has a very special surprise for you: the first external contribution to our site! Our guest is called Diletta Blangero and is a bachelor student of the Comparative European and International Legal Studies course at the University of Trento. Already published by the European Law Student Association of Trento, today she has lent us her voice to reflect on the concept of Constitution as the supreme law but also as a precondition of our lifestyle, and on the thorny question about whether it is right to modify the Constitutions according to the needs of the current time or it is necessary to leave them unscathed. Enjoy your reading!

In September 2020, after an absolutely unprecedented spring and a summer just as unusual, the world of Italian politics has taken some time off from the Covid-19 crisis to focus its attention on another much-awaited and months-delayed event: the constitutional Referendum on the cut to the number of MPs. Its objective is exhaustively explained in the articles on the matter on CTZN.eu (which you can find here). An easy field of clash of parties, an event to comment on newspapers and talk shows, a discussion topic which has split the public, but especially yet another issue emerged around the same question: to change the Constitution, or to trust the original text?

It will surely sound trivial, but I fear it is inevitable to say that the Constitution (and not only the Italian one) is at the same time one of the elements on which our ordinary lives are most founded and one of the parts of our lifestyle which we take most for granted. People discuss on a large scale about Constitutions only in rare circumstances, and mainly in circumstances as those of a Referendum, when it is the Constitution itself to be put under exam; for the rest of the time it remains there, we know that it exists and that it is something of fundamental importance but we cannot see nor touch it. We live the Constitution, inside the Constitution and based on the Constitution, and this makes it both extraordinary and very ordinary: we are used to its presence, especially among the young people, we begin knowing it since a very young age and, in the end, perhaps we confine it to one of those compartments of our memory where we keep the things that we will rarely have to dust off again, as we will rarely have to discuss or question them.

To borrow from Norberto Bobbio an expression very powerful to me, the Constitution is “the rules of the game”; it is the tangle of wooden poles which is the basis of the pile, the basis of our lives inside this system. And could it possibly be a wise act to try to shake such foundations?

In this case, turning our gaze to the past for a moment could be useful as a starting point to understand weather Constitutions have really been born to remain etched in stone or they are indeed made to be one day modified. Most Constitutions of the Western world have been promulgated after and as a reaction to disturbing and revolutionary historical events for the nation which lived through it and for its citizens: the US one developed after the Revolutionary War in the 1780s; the Italian one saw the light between 1947 and 1948, while the country was slowly trying to recover from WWII and the Fascist ventennio; the German one, as we know it today, was born following the fall of the Berlin Wall in 1989 and the uniting of the “Two Germanies”, and so on. The common thread that links all these examples? Nations and peoples which slowly emerged from trauma, which counted their dead, their ruins, the damage to their economies, and which desperately sought the tranquillity necessary to relieve their pain. They searched for fixed points, and maybe they needed to conceive their new Constitutions as documents carved in stone, since the principles inside of them – the equality of each person before the law, the rule of law, the respect for human liberty and dignity, etc. – were to be at the basis of a new world, inhabited by new citizens who promised themselves not to repeat the mistakes of their predecessors ever again. Almost all these Constitutions have been drafted by beautiful minds, by scholars and statesmen chosen not only for their curriculum but above all for the trust that people put in them, and they have been written to last. They have been placed at the peak of the pyramid of the sources of law as “extraordinary laws”, special institutions have been created to protect them, and thus the foundations for the construction of modern legal systems have been laid.

Wide systems, complex systems, not buildings but skyscrapers. And it could be natural to ask once again: is it truly wise to try to shake a skyscraper by its foundations?

If we just observed what history and the origins of the main current Constitutions have to say, the most reasonable answer would be, I believe, a No: if a Constitution has been promulgated as to offer a safe haven for a country which is still coming to terms with the damage caused by the storm, what sense could it possibly make to question its norms and to make the uncertainty reappear once again after some mere decades?

The truth is, however, that to be really able to understand the complex phenomenon of Constitutions it is not sufficient to focus on their past dimension and on how they have been born, but it is necessary to analyze just as well their future dimension. What is it, apart from the norms written on paper, apart from the high legal and moral principles, that really makes a Constitution? Answering to this question is quite simple, and to do so we simply need to briefly remember what has been said at the beginning of this analysis: the Constitution is a habit, it is the framework inside which we live every day almost without noticing; thus, we could say that what makes a Constitution is first of all and above all us, the citizens. A Constitution is a gift, a gift that the past generations, through their representatives, have decided to pass on to their descendants hoping that they could live in a world without hate, war, discrimination. A Constitution is a concrete example of what Bernard Werber meant when he said that “it is necessary to agree to sow so that others can reap elsewhere and later”: the founding fathers and mothers sow and let grow, but then it becomes a duty of the future generations to keep their creature alive and to make sure that the soil does not dry out once those who first nurture it are gone.

Keeping the love for a Constitution alive is not a simple task: it is like nurturing a relationship with a family member, someone we love but have not chosen, who is an indissoluble part of our life but, precisely for this, is sometimes too much. Yet, this is the only really effective way to keep it alive: they know it in Germany, where since the time of the entry into force of the Grundgesetz, the “Basic Law”, the institutions have always push for the education of the population to the Wille Zur Verfassung, which may sound like a current of XIX-century painting but is really translated with “constitutional patriotism”.

Bestowing us with the fruit of their work, the constituents have taken a leap of faith and have put accountability in all our hands to “make their ideas walk on our legs”, to make them live through the years making them a part of us. And maybe, it is by focusing on this aspect that we can manage to see what the other face of a Constitution is: a document which is needed to give certainty and fixed points after years of political and social turbulence, yes, but also something alive, which must be made to grow and change along with the population which it represents. Perhaps, by caging a Constitution in its original form and not leaving her the space to grow, we would do nothing but condemn it to death and prevent it from performing its main and deepest function: giving voice to “we, the people”, to all the citizens, those who lived when it was discussed and promulgated, those who live today, and those who will live in the future; countless generations which the Constitutional Charter must keep united by the same values, the values of their State, but which may have different needs, different ways of seeing the world, the institutions, the rights and duties of the citizen, different eyes to turn to their Constitution seeking guidance.

Thus, Constitutions are indeed complex phenomena, which bring together two opposing elements. It is natural, at this point, to ask a final question: what fate must await them, to be placed in a case and never touched again, or to be let down from the pedestal and be questioned?

Almost all modern legal systems answer this dilemma in the same way, adopting the same strategy: with balance. There are parts of a Constitution, those which describe the fundamental rights of individuals, which define the form of government, which delineate the fundamental principles based on which we must orient our daily lives, which are impossible or almost impossible to modify: in Italy, this kind of “protective bubble” applies to the first twelve articles, which can never be derogated, while in other legislations nothing in the Constitution has full immunity, but modifying the most important norms is extremely difficult, with very long procedures and the unanimous consent of citizens and institution needed. Other articles, related to the most technical aspects of the functioning and the democratic life of a State, can instead be changed, as to adapt to the current circumstances which vary from year to year and quite certainly are not the same as when the Constitution was promulgated. We must now try to close the loop and thus take as an example the constitutional Referendum on the cut of MPs which led us to the polls in September 2020: independently from the opinion of each of us on the matter, I think we can affirm with little doubt that the setting and structure of the two Chambers of Parliament reflects the image of an Italy which does not exist anymore, an Italy, for instance, where the Senate was the platform dedicated to local representations, almost the only place in which they could have some space.

Hence, if I am asked: it was a good choice, and is in general a good choice, to modify the Constitution? I will answer yes. The Italian Constitution, like all its counterparts around the world, is a living creature and must be preserved as such, it can be modified and updated without losing its authority, because, in the end, a Constitution knows how to take care of itself and what are the lines which must not be crossed in the effort to amend it. However, it is crucial to bear in mind, while proposing a constitutional review, that what we are proposing is to modify the main and at the same time most delicate element of the entire legal system: as such, we need to be very sure that the changes made are laid out in a clear and comprehensible way (something that maybe has not really happened for this Referendum), weighing the consequences (in this specific case, further destabilization of the already precarious balance of parliamentary representation) and preparing ourselves to do everything possible (and thus, for instance, device an adequately effective reform of the electoral system) to ensure that the entire legal system is able to adapt to the change and better respond to the challenge that an amendment, as all novelties do, is going to present in the future.

How did it feel to read this analysis, reader? Do you think it is good to change a Constitution or do you believe it is important to preserve it beyond the temporary political interests? Which amendments would you like to make to your Constitution to make your country a better place?

Let us know by leaving a comment here, sending us an email with your reflections or commenting on the related post on our social profiles.

Thank you for your attention,

Diletta Blangero

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