Taking stock

The Italian Constitution fully belongs to the so called “postwar paradigm,” or “rights constitutionalism”.[1] Indeed, it has been a forerunner of this paradigm, at the very least for chronological reasons.

Constitutions that fit this paradigm all have some broad features in common: they are written and fully legal in character, they include a long and detailed Bill of Rights, they are protected by a system of judicial review, and they are difficult to amend. Moreover, these constitutions are supposed to last, they embody a broad project of social transformation in the aftermath of some traumatic event (a war, a civil war, a dictatorship, a revolution, etc), and they are inspired by the overarching value of social and political pluralism.

These features of contemporary constitutions rule out the descriptive plausibility of both political constitutionalism and of a mere “defensive” conception of the constitution. In fact, contemporary' constitutions are undisput-ably legal in character (which rules out political constitutionalism), and have a clear foundational function. Moreover, it is quite implausible that the normative content of a “postwar paradigm” constitution be framed essentially in terms of rules: the pluralistic character, the aspiration to last long, and the transformative spirit of this kind of constitutions require that constitutional provisions be drafted in generic, indeterminate, flexible terms. Of course, a political-constitutionalist or a “defensive” conception of the constitution may still be defended as projects of legal and political reforms that move away from the existing post-war model. I will not argue here on this. I will just note, without even trying to argue in favour of this position, that under the prevailing conditions of many contemporary' societies, the foundational model seems, on balance, more likely to sustain a just society' than its alternatives. The favourable attitude expressed in the text does not ignore, of course, that the foundational model may lead to exaggerations and aberrations in the exercise of judicial discretion, with costs in terms of legal certainty and democratic legitimacy. Nothing can prevent even a model that is fairly good in its abstract formulation to go astray in its actual applications. Moreover, the comparative merits and demerits of each model cannot be assessed in purely abstract terms - they are contingent on the general institutional context.[2]

Be that as it may, and assuming that a foundational model appears to be both descriptively accurate and normatively desirable, one may still ask if such a model is to be preferred in the principle-based variant or rather in the values-based one. In my opinion, there are sound reasons for preferring a principle-based approach to the Constitution and to constitutional interpretation. These reasons essentially boil down to the following:

  • - A principle-based approach does not result in an implausibly “cognitivistic” picture of constitutional interpretation (one in which the normative content of the constitution is just discovered out of an immanent order of values). Quite to the contrary, it acknowledges the ineliminable margin of choice that is required by constitutional interpretation; and this choice, in turn, brings with it the need for accountability - first of all under the guise of a duty to give a complete and persuasive justification for the interpretive decision.
  • - A principle-based approach does not tie the meaning of constitutional rights to social values, which would make fundamental rights prey to majoritarian attitudes (thus betraying its pluralistic aspirations).
  • - A principle- based approach makes for an evolving interpretation of the constitution, ensuring that the constitution does not become rapidly outdated.
  • - A principle-based approach acknowledges the space of democratic decisions, since it does not assume that the constitution contains the precise regulation of any social and legal matter. Rather, this model actually requires that in many instances the responsibility of balancing and specifying the relevant constitutional principles fall exactly on the legislature. Even more importantly, in such a model no single authority - not the democratically elected legislature, not ordinary judges, not even the Constitutional Court - has the last word on the interpretation/implementation of the constitution. The normative content of the constitution, in this model, is supposed to be shaped in the ongoing interaction (be it in the guise of dialogue or of conflict) among several institutional actors.[3]

If these admittedly sketchy arguments are sound, then the theory of constitutional norms as principles seems better suited to the idea of a contemporary, pluralistic constitution, such as the Italian one.

Chapter XI

THE RELATIONSHIP BETWEEN FORMS

AND METHODS IN CONSTITUTIONAL

INTERPRETATION:

  • [1] For these expressions, see L. WEINRIB, The Postwar Paradigm and American Exceptionalism, n. 27; L. PRIETO SANCHÍS, El constitucionalismo de los derechos, in Revista Española de Derecho Constitucional 47 (2004); G. ANDERSON, Constitutional Rights after Globalization, Oxford, Hart Publishing, 2005, ch 1; G. PINO, Il costituzionalismo dei diritti, Bologna, Il Mulino, 2017. See also A. SOMEK, The Cosmopolitan Constitution, Oxford, Oxford University Press, 2014 (on “constitutionalism 2.0”). 2 On the essential pluralistic character of contemporary, “postwar” constitutions, see G. ZAGREBELSKY, ll diritto mite, n. 19; E. DlCIOTTI, Come interpretare la Costituzio-ne?, n. 49; R. BIN, Cosa é la Costituzione?, n. 33.
  • [2] See C. SUNSTEIN, A. VERMEULE, Interpretation and Institutions, in 101 Mich. L.R. 885 (2003); G. ITZCOVICH, On the Legal Enforcement of Values. The Importance of the Institutional Context, in A. JAKAB, D. KOCHENOV (eds.), The Enforcement of EU Law and Values, Oxford, Oxford University Press, 2017. 2 Against the “social consensus” argument in constitutional interpretation, see A. MARMOR, Interpretation and Legal Theory, n. 45, 151 ff; G. PlNO, Diritti e interpreta-zione, n. 43, 135-139. 3 R. ALEXY, A Theory of Constitutional Rights, n. 13.
  • [3] MOn this feature of contemporary constitutionalism, see G. ZAGREBELSKY, Il diritto mite, n. 19, 213; B. CELANO, I diritti nello Stato costituzionale, n. 35, 161-162; M. FlORA-VANTI, Legge e costituzione: il problema storico della garanzia dei diritti, in 43 Quaderni fio-rentini per la storia del pensiero giuridico 7~l (2014), 1092-1093; M. CARTABIA, Diritto amministrativo e diritti fondamentali, in L. TORCHIA (ed.), Attraversare i confini del diritto, Bologna, Il Mulino, 2016, 187; G. PlNO, Ilcostituzionalismo dei diritti, n. 58,46-49.
 
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