FRANCESCO GIULIO CUTTAIA
On the basis of what was ruled by the Constitutional Court in sentence no. 237/2022, the foundation of parliamentary domestic jurisdiction was further specified, which is the basis not only of the major regulations of the Chambers, but also of the minor ones, without the possibility, therefore, that the latter can be the subject of an interlocutory judgment of constitutional legitimacy in an incidental way.
At the same time, thanks also to the recent rulings of the Supreme Court of Cassation and the Council of State, inspired by the rulings of the Constitutional Court no. 120/2014 and 262/2017, the scope of parliamentary domestic jurisdiction is limited only to issues involving subjects linked to the administrative bodies of the Chamber and Senate by an employment relationship or at least of service, with the exclusion of third parties bound by a contract or similar negotiating instruments.
After noting the urgent need to fill, through a prudent constitutional revision, the persistent shortcomings highlighted by the Constitutional Charter both with regard to experiences at the beginning and at the end of life, the contribution highlights how, already in the light of the indications provided by the constitutional jurisprudence in Cappato, the idea is confirmed that the subject's self determination with respect to his or her medically assisted death meets insurmountable objective limits. It is therefore clarified that suicide still constitutes a disvalue, also from the point of view of criminal law, and that one must guard against the risk of transforming a right (here, that of life) into its opposite (of «non-life»), while there appear the critical observations of those who appeal to the need to preserve the dignity of the person and the principle of equality are out of line. The study closes with some notations relating to the so-called «therapeutic alliance» between doctor and patient, also in the light of the legislative discipline in the pipeline.
The essay focuses on the characteristics of the temporariness component of the emergency rule. Not to be confused with the concept of «shortness», temporariness is important in the scrutiny of proportionality. In this sense, above all, case law on coronavirus offers several systematic insights on the issue, helping to distinguish the temporariness of the emergency from that associated with ordinary contexts, which are more akin to the idea of «tolerability». In the emergency, temporariness presents itself as an increasingly stringent criterion of progressive scrutiny in which the norm’s ability to respond to the evolution of the alarming fact is decisive. Thus, the component of temporariness arises in its instrumentality to the constitutional order’s endurance during serious events, avoiding the establishment of a stable regime that is antithetical to the original one.
Against a backdrop of democratic deficits highlighted by low community participation in political decision-making, information and communication technologies open up new spaces for participation and democratic life. However, constitutional problems arise with regards to the possible introduction of unsupervised electronic voting mechanisms in political elections. Indeed, despite the fact that the Constitutional Court immediately recognized the inalienability of the requirements set forth in Article 48 of the Constitution to safeguard the exercise of the right to vote, on certain occasions, our legislator has been forced to derogate from the principle of secrecy of the vote in order to guarantee participation on equal terms and the exercise of popular sovereignty. Therefore, in light of past and future experimentation operations conducted in Italy and abroad, as well as jurisprudential interpretations, the question arises as to what margin of tolerance would allow our legislature to use e-voting to foster greater democratic participation.
The prologue to the Constitutional Law course entitled ‘The Struggle for Equality’ given by Lodovico Mortara at the University of Pisa for the academic year 1888/89, offers a contribution to Constitutional reflections, to the general theory of law and political science, and also provides a framework for the evergreen debate on inequality. This article will identify the reasons that prompted Lodovico Mortara in his Pisan lecture to identify the different areas of scientific reflection in the legal field, allowing the interpreter to contrast the ‘apoliticality’ and ‘stability’ of the private law field with the ‘political’ and ‘dynamicity’ of the constitutionalist field.
Lodovico Mortara also argues that constitutional law encompasses not only the study of fundamental concepts of public law, but also the examination of Italian political institutions and the way they function, in comparison with those of other major states in the world. The further itineraries of this essay will be aimed at determining the motivations that do not allow the principle of equality in law to realize equality in fact, also offering a contribution to scholars in the interpretation of Article 3 of the Italian Constitution of 1947. Equally relevant will be the analysis aiming to verifying the actual realization of the principle of equality in certain activities carried out by Lodovico Mortara, as a judge and as a politician.
In this essay the author aims to explore a concept often evoked in legal papers, but not yet focused, namely “constitutional sustainability”. A theoretical reconstruction will be proposed starting from some concrete cases. The thesis is based on the idea of the Constitution as an act that supports a complex regulatory structure built to implement the fundamental principles. These fundamental principles nourish the “social vocation” of the Constitution, to be understood as the ability to contribute significantly to the transformations of society. The Constitution is not only a limit to power, but also an incentive and guide to power. So, we will try to demonstrate that an act or behaviour, even if it is legitimate, can prove to be constitutionally unsustainable.