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 judges' 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