Subsequent to the passing of the Italian Constitution (January 1, 1948), the task of disseminating a solid culture associated with it remained difficult and a long period of transition ensued. There was strong resistance among the older jurisprudential generation of scholars belonging to the era prior to the Republic. The new Constitution, moreover, represented a future yet to be built and an all too present past still to be left behind.
The Constitution still appears to be alive and well in its most complex part, the one that saw the explosion of social fragmentation and the spread of individualism. Indeed, the value system of Western democracies is founded on the preeminence of the person, of which articles 2 and 3 are a clear illustration.
Nevertheless, article 2 itself recognizes the individual’s inviolable rights as well as obligations, bearing witness to the fact that, in the drafting of the Constitution, rights and responsibilities had no difference in importance but rather played complementary roles. They are linked reciprocally in the spirit of a shared personalistic foundation that imposes subordinating liberal individualism to consideration of the populace in its social dimension. That is why the framers dedicated Part I of the Constitution to rights and responsibilities with the specific intention of underscoring the idea that one exists in function of the other.
Moreover, article 2 points out that a person’s personality develops within social frameworks. Recognition of the other, therefore, appears pivotal to coexistence; a pertinent example of which can be found in the final paragraph of article 118, which establishes the principle of subsidiarity, whose full realization is manifest in volunteer work.
Parts of the Italian constitution have also been superseded since they no longer correspond to contemporary sensibilities; an example is article 30, the third paragraph of which discriminates between offspring born out of wedlock and “legitimate” children.
Then there are provisions that over the years have been distorted, and those distortions have remained. Such is the case of that which gives the houses of parliament the legislative function exercised in truth by the government in the form of frequent recourse to urgent decrees or votes of confidence.
Additional considerations on the modernity of the Constitution include the existence of laws still not enacted, in particular on the organizational front, such as article 49 on freedom of association. At the time of its entry into force, for example, the political parties enjoyed considerable legitimacy, subsequently witnessed by citizens’ broad participation in the country’s democracy; a trend that, over recent decades, has undergone an evident inversion in direction. Similar reflection could concern the importance in Italy of trade unions, which have never enjoyed the same recognition.
In any case, through jurisprudential and cultural interpretation, the Constitution still today represents a valid and indispensable instrument for the protection of individual rights, including those most recent fourth generation ones associated with new technologies, in keeping with the sensibilities and customs of contemporary society.
For this reason and more, the spread of “originalism” raises concern. In particular, the United States Supreme Court’s interpretation of the American Constitution – by remaining faithful to its original meaning, to its framers’ historic intentions – risks being anachronistic and regressive. That charter should evolve along with the society, as it changes. This is the case, for instance, of new technologies that, while not claiming to entirely replace citizen participatory processes, remain instruments capable of being used to support and strengthen democracy.