Consulta OnLine (periodico online) ISSN 1971-9892
2025/II
maggio-agosto
Parte Prima
STUDI
ANGELO LICASTRO
(25.08.2025)
The US Supreme Court in Mahmoud
v. Taylor has ruled that parents challenging the Board's introduction of
the "LGBTQ+-in-clusive" storybooks into the
elementary school curriculum, along with its decision to withhold opt outs, are
entitled to a preliminary injunction. Taking inspiration from this decision,
according to which storybooks present the same type of objective danger to the
free exercise of religion identified in Yoder, this paper analyzes the relationship between parents' freedom to
direct their children's education and the promotion of LGBTQ+ inclusive
education in the public-school curricula.
ELISABETTA CATELANI
(21.08.2025)
The essay analyzes Luigi Einaudi's liberal thought and its influence
on the birth and consolidation of the Italian Republic. It reconstructs the
link between his economic and institutional theories and the roles he held as
Governor of the Bank of Italy, member of the Constituent Assembly, and
President of the Republic. Particular attention is given to his economic
vision, Europeanism, defense of press freedom, and
constitutional reflections, highlighting their continuing relevance for today's
challenges of democracy and European integration.
VINCENZO BALDINI
(04.08.2025)
This work focuses
essentially on the most current problems of freedom of expression of thought,
with particular reference to the dimension of truth
assumed as a precondition for the guarantee ex art. 21
Cost. especially in relation to the European legislation against
disinformation.
MARIAIDA CRISTARELLA ORISTANO
(04.08.2025)
Abstract
This paper aims to
critically analyze the judgment Commission v. Malta
(C-181/23), the first ruling by the Court of Justice of the European Union to censurе, within the context of an infringement
procedure, a national law concerning the attribution of citizenship.
In particular, with this decision, the Court
found the Maltese citizenship-by-investment (CBI) program of 2020 (so-called
Citizenship by Naturalisation for Exceptional Services by Direct Investment)
incompatible with European Union law, specifically with the principles of solidarity,
mutual trust, and loyal cooperation. While agreeing with the outcome of the
ruling, which views the national regime as a manifestation of the
commercialization of European citizenship, this paper highlights certain
argumentative weaknesses in the Court's reasoning, suggesting the need to rely
on legally stronger arguments capable of justifying the EU's interference in a
matter that falls within the exclusive competence of the Member States.
LAURA LA CORTE
(04.08.2025)
Abstract
This paper examines key
legal issues concerning the medicines' online sale, with a focus on the
intersection between regulated competition and health data protection. It
analyses pharmacies' role in the digital era, the health data regulation under
the GDPR and the way e-commerce platforms like Amazon handles sensitive
information.
It highlitghts
the need for un explicit consent, a proportional use of consumers' data and a
balanced approach to innovation and fundamental rights in digital healthcare.
ANTONIO RUGGERI
Note
introduttive ad uno studio sulla Costituzione quale ponte tra culture
(01.08.2025)
Abstract
The essay discusses the
relationship between multiculturalism and interculturalism. In
particular, it explores the extent to which cultures can be kept
separate and at what point they are naturally inclined to integrate - at least
partially - due to the shared life experiences of those living and working in
the same area. It then examines some positive and negative examples of
multiculturalism, the latter of which are primarily fueled
by the cultural degradation of the political class and the lack of sensitivity
shown toward certain cultures - such as those represented by migrants and
immigrants - by those who have held (and still hold) positions of governmental
responsibility.
VINCENZO TELARO
(28.07.2025)
Abstract
The essay analyses the
issue of adoption by single people in Italy after the Constitutional Court no.
33 of 2025. After examining the judgesÂ’ decision, the work focuses on the
relevant constitutional interests in the specific case and on possible future prospects
in the field of adoption.
MARIO ESPOSITO
Qualche
considerazione su adozione ed emanazione del "d.l.
sicurezza"
(24.07.2025)
Abstract
This brief contribution analyzes the constitutional legitimacy of the recent
Italian emergency decree (Decree-Law No. 48/2025), commonly known as the
"security decree", with particular regard to
its adoption by the Government and its enactment by the President of the
Republic.
ANNA GRAGNANI
(17.07.2025)
Abstract
The essay examines the
impact of the EU energy transition on the legal and material conditions
underpinning constitutional freedoms, whose exercise depends on access to
energy. After highlighting the specific features of the transition plan, based
on the precautionary principle, the analysis focuses on the implications that
the binding 2050 deadline for achieving the goals of the transition has for the
fulfilment of the duties entrusted to the Welfare State.
ARMANDO LAMBERTI
Costituzionalismo
digitale, poteri delle piattaforme, intelligenza artificiale e democrazia
(14.07.2025)
Abstract
This essay offers an
analysis of the transformations in constitutional law in the digital age,
focusing on the emergence of new transnational private powers – particularly
major online platforms and artificial intelligence – and their impact on
democracy. Through a theoretical and doctrinal reconstruction of digital
constitutionalism, the paper examines the evolution from European jurisprudence
to legislative initiatives such as the Digital Services Act and the AI Act. It
argues that, while procedural regulation enhances transparency and platform
accountability, it does not substantially limit their economic and
informational dominance, which poses serious challenges to democracy and
pluralism.
The paper then addresses
the constitutional issues raised by AI, critically examining the European
regulatory framework – especially in relation to fundamental rights – and analyzing the use of AI in parliamentary procedures. It
underscores the need for a renewed paradigm for the protection of fundamental
rights, one that extends to the safeguarding of individuals' cognitive
dimensions. Within this framework, the discussion also considers emerging
debates on neuro-rights, aimed at preserving the free formation of thought and
mental integrity.
PAOLO PILUSO
(14.07.2025)
Abstract
The essay aims to apply the
dogmatic category of private power to digital platforms, reflecting on the
status of subjective legal situations in light of the
growing "proceduralization" and "administrativization" of digital constitutionalism.
The "proceduralization" of the exercise of private power,
in fact, seems to represent an interesting signal for a tendency towards "administrativization" of the private sector, so that
it may be useful to recover in the legal reflection – both for the needs of
dogmatic coherence and for guarantee purposes – the notion of the
"legitimate interest of private law" (as an interest in the achievement
or maintenance of a good of life depending on the exercise of a power, in this
case a private power): a conceptualisation, on which the Italian civil doctrine
has often made important reflections, that also draws the attention of public
law experts, because, in light of the letter of the art. 24 of the Italian
Constitution, it does not seem necessary to limit the field of action of
"legitimate interest" to the sphere of the relations between private
individuals and public administrations.
This theorical proposal, as
it will be showed, seems to correspond to certain tendencies of positive law
(and, in particular, EU law), especially with regard to the "right to be forgotten" and to
the procedural guarantees of the freedom of expression provided by the Digital
Services Act.
ROBERTO BIN
(06.07.2025)
Abstract
"Anomalous"
decree-laws and judicial defense of rights (regarding
Constitutional Court ruling 146/2024).
The most recent
constitutional jurisprudence seems to open the door to a constitutionality
review of the prerequisites that the Constitution sets for the legitimate use
of decree-laws by the government. The turning point lies in the assertion that
constitutional rules on the system of sources and the form of government
condition people's right to legal certainty.
ANDREA MOLFETTA
(05.07.2025)
Abstract
This paper set out to analyze the impact of the Covid-19 health emergency on the
Swedish constitutional system and the GovernmentÂ’s role in epidemiological
management. After providing a general overview of the Nordic legal system, the
article focuses on the influence of the Public Health Agency, with the Riksdag, in Sweden's political action, thus highlighting
the divergences with the pandemic counteracting model adopted in Italy.
MARIALIBERATA DI FEO
Una
questione di legittimitĂ costituzionale sull'ammissibilitĂ dell'eutanasia ope iudicis
(04.07.2025)
Abstract
The essay analyzes the constitutional question raised by the Florence
Court (order no. 97/2025) concerning the legitimacy of Article 579 of the
Italian Criminal Code, which penalizes consensual homicide.
In particular, the author
contends that the proposed equivalence between assisted suicide (Article 580)
and euthanasia (Article 579) undermines the foundational principle of the
inviolability of life, enshrined in the Italian legal tradition. The article
concludes that such a shift would not represent a genuine advancement of
personal autonomy, but rather a weakening of constitutional protections aimed
at affirming the inherent dignity and value of every human life, regardless of
condition or dependency.
INES GULLINO
L'Alta
Corte disciplinare: quale ruolo ed impatto sugli equilibri costituzionali?
(30.06.2025)
Abstract
The article aims to
investigate the contents of the draft constitutional law A.C. 1917, currently
under scrutiny by the Parliament, focusing on a particularly debated profile of
the reform project, namely the establishment of a High Disciplinary Court.
One of the purpouses of this brief comment is to analyse the rationes
that, from the point of view of the proponents of the reform, would justify a
significant upheaval of the current institutional framework defined by the
Constitution, through the introduction of the new body.
At the same time, an
investigation that proposes a study conducted according to the criteria and the
foundations of constitutional law (such as, the balancing of the State's
functions and the principles that follow), cannot fail to include a comparison
between this aspect of the reform and the specificities of the current
regulation of the disciplinary function of the judiciary. The intent is that of
analyzing the subject, so as to
offer a vision as wide and complete as possible of the location and functions
of the instituiting High Disciplinary Court,
dwelling, at last, on the profiles of doubtful compatibility of these contents
of the draft reform with the constitutional text. In this regard, in addition
to the doubts related to the composition of this body, substantially left to
chance and its hierarchical structure, a special space will be dedicate to the profile of the settlement of the High Court
as the sole disciplinary judge for magistrates and, finally, the possible
recognition of the latter's status as a special judge.
ELENA FALZEA
Principio
di autodeterminazione e PMA: evoluzione e limiti a margine della sentenza n.
69/2025
(30.06.2025)
Abstract
This paper examines the
principle of individual self-determination in the context of medically assisted
procreation, with particular focus on the Italian Constitutional Court's
decision no. 69 of 2025. Following an analysis of Constitutional Court's rulings
concerning Law no. 40/2004, the paper highlights the exclusion of single women
from access to assisted reproductive technologies, examining this restriction
through a comparative lens with other European legal systems that have embraced
more inclusive approaches. The study underscores the tension between
traditional legal paradigms and evolving social realities. Ultimately, it
advocates for a realignment of national legislation with constitutional
principles, to better reflect the diversity and pluralism of modern family
structures.
ANTONIO RUGGERI
(23.06.2025)
Abstract
The essay advances the
thesis that the boundary between interpretative techniques –particularly those
aimed at ensuring conformity with the Constitution, international law, and
supranational law and decision-making techniques is inherently fluid and uncertain.
Nonetheless, each technique finds both its purpose and its limits in the
pursuit of the greatest possible realization of constitutionally protected
goods or interests, especially fundamental rights. The analysis then turns
specifically and critically to the arguments put forth by the Constitutional
Court in support of prioritizing centralized constitutional review over the
direct application of self-executing norms of the European Union in cases of
dual preliminary relevance. The paper highlights the shortcomings of this
approach, suggesting that the most effective solution may lie in the combined
application of both mechanisms, a result that, however, presupposes the
adoption of legislative provisions currently lacking.
GIUSEPPE MONACO
Sul
progetto di un nuovo assetto costituzionale della magistratura
(23.06.2025)
Abstract
The essay analyses the
constitutional bill with which the government intends to achieve a clear
separation of careers between the judiciary and the prosecutorial magistracy
and the simultaneous formation of two Superior Councils of the Judiciary. The
aim is to verify the necessity and the opportunity of this reform in light of the constitutional and European principles. The
reform also affects the methods of formation of the two Councils and provides
for the establishment of a special Court to which jurisdiction over the
disciplinary liability of magistrates is delegated. The paper therefore focuses
on the effects of these changes with respect to the nature and role of the CSM.
FRANCESCO CIRILLO
La
finzione della forma. Il primo Kelsen tra teoria e dogmatica
(23.06.2025)
Abstract
This
paper offers a critical reassessment of the early Hans
Kelsen, focusing on Hauptprobleme
der Staatsrechtslehre
(1911) and the subsequent dogmatic
writings — particularly Zur
Lehre vom öffentlichen Rechtsgeschäft
(1913), Reichsgesetz und Landesgesetz
(1914), and Ăśber Staatsunrecht
(1914). It reconstructs the interplay between epistemological premises and
public law dogmatics in the formative phase of his theory. Rather than reducing
Kelsen's work to a philosophical or axiological stance, the analysis emphasizes
a dual contextualization: on one hand, the Kantian and Neo-Kantian legacies; on
the other, the methodological and conceptual challenges arising within
Austro-German legal scholarship at the turn of the century.
At its core lies a
tripartite investigation into legal form: the construction of the öffentliches Rechtsgeschäft as a
normative act devoid of will and intention; the distinction between federal and
state law (Reichsgesetz und Landesgesetz)
as a problem of hierarchical coherence within plural legal systems; and the
paradox of state illegality (Ăśber Staatsunrecht)
as a limit-case in the formalization of legal responsibility. These dogmatic
inquiries are not peripheral but serve as concrete test cases in Kelsen's
effort to purify legal science from psychological, sociological, and ethical
residues. Special attention is devoted to the transformation of juridical will,
the functional abstraction of the state as a center
of normative imputation, and the use of epistemic fictions to sustain the
autonomy of legal reasoning.
Finally, the paper explores
the epistemological status of legal science as a "normative science",
showing how its internal coherence depends on conceptual figures (will,
subject, normativity) that, while formally excluded from empirical reality,
function as necessary regulative conditions. In this light, the "fiction
of form" emerges as a constitutive tension—not a contradiction—within
Kelsen's early theoretical architecture.
VALENTINA CHIAUZZI-VINCENZO
SCIARABBA
(16.06.2025)
Abstract
This essay addresses the
issue of the application of conventional and constitutional guarantees traditionally
linked to criminal matters to formally non-criminal measures. After some
preliminary methodological considerations aimed at clarifying the approach and
the basic theses developed in the paper, a reasoned reconstruction, accompanied
by some more general reflections, of the evolution of the relevant case law of
the European Court of Human Rights is performed in the first part of the work,
focusing especially on the development of the criteria and modalities by which
this operation of extensive application of the criminal law guarantees
contained in the Convention has been carried out. The evolution of the relevant
case law of the Italian Constitutional Court is then examined, paying
particular attention to Judgment No. 68 of 2021 and its implications. Some
reflections are subsequently developed on the prospect of a "variable
geometry" reconstruction of the notion of criminal matters, and of a
graduation of the application of typically criminal conventional and
constitutional guarantees to formally non-criminal sanctions; in support of
this view, some remarks on the underlying reasons for the original approach of
the European Court are made, and a comparative analysis of the interesting
jurisprudence of the Inter-American Court on the same issues is provided.
Finally, some future research perspectives suggested by the outcomes of the
work are outlined.
MATTEO PAOLANTI
(09.06.2025)
Abstract
This essay reviews the development
of informational pluralism, with particular attention to its external
dimension, according to the classification established by the Constitutional
Court in ruling no. 826 of 1988. In the recent decision no. 44 of 2025, the
constitutional judges conducted a review of the current state of Italian
television broadcasting, with specific reference to the system of
incentive-based contributions provided by P.D.R. 146/2017 and its subsequent
amendments. Thanks to the rise of new editorial entities and the digitalization
of news distribution channels, the perspective has shifted: pluralism can no
longer be understood merely as the ability to express oneself externally, but
rather as the possibility of being heard by fellow citizens.
EMILIO CASTORINA
Riforme
della "giustizia": un percorso ancora incompiuto
(09.06.2025)
Abstract
The differential elements
between the judiciary and the so-called special jurisdictions, safeguarded in
the Republican Charter, have become increasingly tenuous in consideration of
the acquired "functional unity". The achieved harmonization on the
functional level calls into question, on the one hand, the reasons for
maintaining differentiations on the lexical level between ordinary judges and
special judges; on the other hand, it would require the unification of the
legal status of the "judicial class" globally understood. However,
there are still grey areas that prevent the equalization of the legal status of
special judges with the magistrates of the judiciary. It is undeniable that a
divergence between the magistracies concerns the level of guarantees of
independence of special judges. The Author, considering the reforms in
progress, believes that it would be preferable to have a single High
Disciplinary Court for all magistrates and to provide for a single Superior
Council of the Judiciary: it would be a step towards the unity of
jurisdictions.
(30.05.2025)
The article examines the biojuridical issues of Judgment No. 66 del 2025. After
examining the central points of the constitutional judgeÂ’s reasoning, the
differences between this ruling and previous ones are reviewed. Finally,
critical reflections are made on the constitutional perimeter of the
end-of-life discipline within the Italian legal system, especially with
reference to the possibility of extending the suspension of life-support
treatment.
FELICE BLANDO
Fra
astensionismo e voce al popolo: qualche spunto a partire dai referendum dell'8
e 9 giugno
(30.05.2025)
Abstract
The paper examines some
political constitutional aspects related to the upcoming abrogative referendums
of 8 and 9 June 2025. In this sense, it analyses the limits and functions of
the abrogative referendum according to the Constitution and the development of
the institution in some significant events of the life of the republic. The
paper concludes with a reflection on the importance of the structural quorum.
STEFANIA MABELLINI
(26.05.2025)
Abstract
The essay explores the
delicate balance between legislative retroactivity and the protection of
legitimate expectations within the Italian constitutional system, with
particular focus on recent Constitutional Court jurisprudence. After
reconstructing the historical and case-law evolution of the principle of
non-retroactivity, the author highlights how the Court has progressively
reduced its binding force, instead affirming the
legitimacy of retroactive laws when justified by reasonableness and public
interest.
CHIARA CUCCURU
L'intervento
delle Regioni "terze" nel giudizio di legittimitĂ costituzionale in
via di azione
(26.05.2025)
Abstract
This article examines the
procedural legitimacy and substantive role of regions that are not directly
involved in constitutional legitimacy proceedings but seek to intervene as
"third" parties. The study analyzes the
legal framework governing such interventions, considering both constitutional
principles and jurisprudential developments. Special attention is given to the
conditions under which these regions may assert their interests, the impact of
their participation on the balance of powers, and the potential implications
for regional autonomy. By exploring key case law and legislative provisions,
the article provides a critical assessment of the evolving role of third-party
regional interventions in the Italian constitutional system.
MARIO BERTOLISSI
La
Costituente e la non discontinuita' concettuale
(21.05.2025)
Abstract
With few exceptions,
institutional dynamics over time are marked by continuity. Italy is no
different. The ideals that emerged and gained prominence during the work of the
Constituent Assembly have gradually been bent to the logic of preservation,
often serving interests rooted in the past. The primary responsibility lies
with political actors. But above all, with the State apparatus itself,
frequently reinforced by a judiciary, across all levels, that has either
deliberately or unwittingly failed to break free from formalism. This formalism
enables the persistence of a power structure that is selfreferential
and unaccountable. And it does so through the use of
abstract, unquestionable concepts.
ANTONIO RUGGERI
Famiglia
e Costituzione: un modello aperto e in progress?
(19.05.2025)
Abstract
The essay examines the
evolving relationship between constitutional law and the regulation of family
and affective relationships, highlighting the tension between an only partially
realized constitutional model of the family and current normative developments.
It focuses on cases where ordinary legislation goes beyond the core
constitutional guarantees—particularly in ensuring equal treatment for all
children—and on how such developments may contribute to or distort the implicit
evolution of constitutional principles. Central elements of the traditional
model—marriage formalization, monogamy, heterosexuality, and the mutual rights
and duties of parents and children—are contrasted with the rise of "parafamilial" unions. The analysis addresses the risks
of eroding the constitutional identity of the family, especially considering
trends such as international adoption by single individuals and the recognition
of same-sex parenting through surrogacy. The contribution concludes by
reflecting on constitutionally consistent interpretations informed by subconstitutional norms and evolving social practices.
MARIO PERINI - EDIN SKREBO
(19.05.2025)
Abstract
This paper aims to analyse
the concepts of constitutional identity and public order in the European debate
by placing them in direct relation to each other. In particular, the article's
authors argue for the existence of significant affinities between these two
concepts, such as placing them on a level of quasi-specularity.
Specifically, the article first seeks to identify the defining elements of the
two concepts to provide the reader with a key to a wide range of possible
interpretations. It then analyses the elements that constitute the essence of
these notions. Finally, an attempt will be made to recombine the elements
analysed to understand the points of connection between the two subjects, also
concerning the construction of common and shared legal principles.
BIAGIO G. DI MAURO
(19.05.2025)
Abstract
The essay examines how
hedge fund lobbying influences the U.S. electoral experience and associated
rights. It offers a reconstruction in light of current
regulations and evaluates their effectiveness, including cases involving
digital platforms (digital lobbying). By analyzing
operational mechanisms, practical examples, and regulatory implications in
electoral lobbying - particularly online - the essay provides valuable insights
into existing challenges and proposes de iure condendo perspectives.
GIOVANNA RAZZANO
(17.05.2025)
Abstract
The essay examines how
hedge fund lobbying influences the U.S. electoral experience and associated
rights. It offers a reconstruction in light of current
regulations and evaluates their effectiveness, including cases involving
digital platforms (digital lobbying). By analyzing
operational mechanisms, practical examples, and regulatory implications in
electoral lobbying - particularly online - the essay provides valuable insights
into existing challenges and proposes de iure condendo perspectives.
CRISTINA VIDETTA
(17.05.2025)
Abstract
The article examines
Constitutional Court ruling no. 119 of 2024, focusing in
particular on the issue of possible derogations from municipal urban
planning instruments and the risk that such derogations might result, even
indirectly, in violations of the Regional Landscape Plan (PPR), thereby
undermining the principle of the primacy of landscape planning. The author
highlights how the Court rejected the objections not on the
basis of an actual assessment of the absence of derogatory effects, but
rather by affirming the possibility of interpreting the regional provisions in
a manner consistent with the principle of the PPR's primacy. In doing so, the
ruling aligns with a well-established body of constitutional jurisprudence that
recognizes landscape planning as a unifying and guiding framework for the
protection of the territory at the national level.
FRANCESCA BAILO
L'abolizione
dei senatori a vita di nomina presidenziale
(17.05.2025)
Abstract
This paper aims to analyze the arguments that could be used for or against the
repeal of the art. 59, paragraph 2, of the Constitution, looking, on the one
hand, at the rationale that was the basis of the original forecast and, on the
other, at the personalities who, in one sense or another, contributed to
marking a path - often bumpy but never resulting in an effective revision, with
the exception of the constitutional reform of 2020 - for the constitutional
provision under examination and then verifying whether and in what way it could
impact the constitutional reform as a whole and whether any corrective measures
would be possible in view of the possible definitive approval of the text.
FILIPPO VARI
Ancora
in tema di assistenza al suicidio ed eutanasia
(09.05.2025)
Abstract
The article analyses the
end-of-life bills that are currently examined by the Senate. It first
highlights the importance of the right to life in the Italian Constitutional
Court's case-law. It then tackles the issues of self-determination, freedom of
health and of the importance of the constitutional protection of human dignity.
Finally, the study focuses on the problem of the binding effects of the
Constitutional Court's case-law on the issue.
QUIRINO CAMERLENGO
Sulla
riflettanza politica degli organi costituzionali di garanzia
(06.05.2025)
Abstract
The guarantor bodies
(President of the Republic and Constitutional Court) are not politically
responsible. However, the "political factor" is a constant in their
institutional activities. This factor may have a weight at the time of their
election. This paper proposes the notion of "political reflectance"
to define the incidence of this factor in the choice of the guarantor bodies.
ROBERTO BIN
L'ambiente
nella Costituzione, tra beni e interessi
(03.05.2025)
Abstract
The essay offers a critical
reflection on the scope of the recent constitutional reform of Articles 9 and
41, which explicitly incorporated the protection of the environment,
biodiversity, and ecosystems among the fundamental principles of the
Constitution, including in the interest of future generations. Following a path
that begins with the early jurisprudential developments of the Constitutional
Court and extends to its most recent case law, the author highlights the
ongoing difficulties within the Italian judicial system in ensuring full
protection of environmental 'goods', unlike the German model.
CAMILLA PETRILLO
(02.05.2025)
Abstract
The tax process designed by
the legislator, although suspected of lacking constitutional compliance in
several respects and particularly regarding the profile of judicial
independence, fails to gain access to the merits of constitutional review. The
risk is that it will end up becoming a free zone from the constitutional
review, while the possibility of access to supranational courts is on the
horizon.
MARIO PANEBIANCO
Considerazioni
minime sul Comunicato della Presidenza della Repubblica del 15 aprile 2025
(02.05.2025)
Abstract
This article offers some
basic considerations, both general and specific, on
the promulgation of laws, starting from a recent press release by the
Presidency of the Republic, which reflects a well-established practice.
Consulta OnLine (periodico online) ISSN 1971-9892