Download - Constitutional Analysis
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Owen Phelps
Italian Politics and Society
Argentieri
30/9/14
An Analysis of the United States and Italian Constitutions
The current nation state of Italy is not even 160 years old, but the history
since its foundation as a single entity in 1861 is best described as tempestuous.
Modern Italy has transitioned from Constitutional Monarchy to Fascist dictator-
ship, and most recently, to a Republic in a span of less than 30 years. It seems
as though the people of Italy have been unable to decide for themselves what
form of government is best, which is rather humorous, since the Italian penin-
sula has had an unique experience of almost 3000 years of living under various
Emperors, Kings, Popes and Consuls to decide the most optimal system. The
United States, in contrast, has had a fairly uninteresting political history, save
for the War of Independence and the Civil War: the only two moments in its his-
tory where the validity of its political system was called into question. The devel-
opments of these two Republics is reflected within their respective constitutions,
which not only demonstrates the universal appeal of America’s constitution, but
also that of Italy’s historical experiences with so many forms of government.
There exists a substantial gap in time of 150 years between the develop-
ment of the United States and the Italian Republic, which can be clearly seen in
the basic framework of each constitution (Newell 54). The foci of each document
differs radically – which not only is a reflection of contextual political and histori-
cal periods of which they were written – but also due to the ill experiences of
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previous governments. Italy, for instance, introduces its constitution with a set
of articles known as Fundamental Principles, which outline the rights enjoyed by
every citizen of the Republic, and provides protection against abuse and dis-
crimination of state power based upon gender, race, nationality, religion and
language (Italian Constitution Article 2). It not only establishes the limitations of
how the state is to function, but also sets out conditions which the republic is to
fulfill. For example, the Italian Constitution details that the state is “…to remove
those obstacles of an economic or social nature which constrain the freedom
and equality of citizens, thereby impeding the full development of the human
person and the effective participation of all workers in the political, economic
and social organization of the country.” (Italian Constitution Article 3). These fun-
damentals were outlined mostly as a reaction to the country’s experience with
Fascism, where Mussolini and his regime violated many civil and political rights
in the name of his numerous imperial projects, which saw minorities of all kinds
(linguistic, religious and cultural) being persecuted, and the state forced upon
every facet of society (Newell 22). Such a strong sentiment of rejection of can-
not be more evident than by the first article of the Italian Constitution which
reads: “Sovereignty belongs to the people and is exercised by the people in the
forms and within the limits of the Constitution.” (Italian Constitution Article 1).
The United States shares a commonality with the Italian Constitution in
such a way, though it is expressed differently. The American Constitution was
written as a rejection of its unpleasant experience of the British Monarchy,
which the Founding Fathers – as Englishmen – felt that their civil and political
rights were being ignored, and exploited, based upon their lack of geographic
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proximity to London. As such, while the Constitution of the United States was to
protect against the abuse of power from a powerful sovereign, the first Article
achieves this by establishing the frame of the United States’ government: “All
legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives.” (US Con-
stitution Article 1) and is further detailed in the 8th section: “The Congress shall
have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the
United States.” (US Constitution Article 8). Within Article I, the United States sets
out the boundaries of the government, along with how the government is to
function – be it detailed in how the Senate is to be composed, or the qualifica-
tions in which one needs to become a government official (US Constitution Ar-
ticle 1). In contrast with the Italian Constitution’s Fundamental Principles that in-
stitute how the state ought to behave – and stresses the sovereignty of the peo-
ple as a counterbalance to the government’s power – the United States Constitu-
tion outlines what the government is limited to, and that is the safeguard in
which the people are protected. In essence, each constitution provides the same
protections to the people, but while one is explicitly stated, the other implies.
What is clear, however, is that both of these constitutions were drafted as a
break from an antidemocratic past, thus explains the emphasis on restricting
the state’s power in favour of more autonomy to the people.
Following the Fundamental Principles, the Italian Constitution proceeding
section, entitled The Rights and Duties of Citizens, bears a close resemblance to
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that of the Bill of Rights of the American Constitution. However, while the Bill of
Rights was added after the initial drafting (as the first 10 amendments to the
constitution) the Italian Constitution includes them directly. What is noticeable
within this section of the Italian Constitution is how approximate its rights and
guarantees to the citizens of the Republic are to that of the United States. For
instance, Article’s 13 through 28 state that individual liberty is inviolable, that
each citizen has the right to move freely without impediment, is able to peace-
fully assemble, and that searches and seizures of one’s person, property or
home is illegal – save for circumstances issued by the Judiciary (Italian Constitu-
tion Article 13, 14, 15, 16, 17). This all bears a close resemblance to the first 10
amendments which constitute the Bill of Rights, which contains articles that
guarantee the freedom of speech, worship, with separation of Church and State,
the ability to peacefully assemble, a fair trial by jury, and the illegality of unrea-
sonable searches (US Constitution Amendments 1, 2, 3, 4, 5, 6, 7). The only real
difference between these two sections is the inclusion of the Second Amend-
ment, which allows for citizens to possess firearms – an amendment that clearly
demonstrates the period in which the United States Constitution was drafted –
and the article within the Italian Constitution that explicitly forbids the death
penalty as a means of punishment for a convicted felon. Due to the similar na-
ture that these two documents relate to each other, one can readily infer that
the United States Constitution might have exhibited considerable influence on
the Italian Constitution: each of these documents defines the rights and protec-
tions of each citizen, and further details what the state is legally bound, in rela-
tion to the populace. However, Italy’s rights it guarantees for its citizens could
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very well have been due to the Fascist legacy that the country had to cope with
after the breakup of the Mussolini Government, along with the fact that the So-
cialist and Communist parties – which stresses Marxian ideals such as civil rights
and human development – was such a prominent force in the Constitution’s
drafting (Newell 51).
Within the proceeding sections, entitled Ethical and Social Rights and Du-
ties, Economic Rights and Duties and Political Rights and Duties, is where the
Italian Constitution diverges considerably from that of the its American counter-
part. The United States’ Constitution contains several sections within its seven
initial articles that outline how the government may act, and the basic necessi-
ties that it is to provide – though not on such meticulous detail as that of the
Italian Constitution. For example, the United States government is to coin
money, establish post offices and roads, along with possessing the ability to
raise and support marine and ground armed forces, and borrow money (US Con-
stitution Article 1). As a whole, these duties conferred to the United States Gov-
ernment are general, and impersonal, and focus mainly on supporting the na-
tion. The Italian Constitution, however, includes duties that include providing for
family care, and particularizes that the state is to pay for not only child support,
but for basic education and provide for healthcare – which is considered a funda-
mental right in Italy (Italian Constitution Article 29, 30, 31, 32, 35). Even more
divergent from its American counterpart which contains no specifications of how
the economic system of the United States is to work, the Italian Constitution
elaborates that not only is it the state’s duty to protect work, and provide for
training so that the citizens can work, it also includes (most importantly) the
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right that women ought to be paid equally for the same work that men preform
(Italian Constitution Articles 35, 36, 37). The United States Constitution has no
safeguards, nor guarantees that workers receive such benefits, nor does it state
that women are entitled to equal pay for equal work. Again, the differing stances
found within these two constitutions over economic rights, and the state’s duty
to its citizens is perhaps more of a reflection of the periods in which they were
written in: for instance, the Italian Constitution was authored when issues such
as worker’s rights, Communism, Trade Unions and the like were a prominent po-
litical force, whereas 18th century America did not need to worry about such po-
litical ideas, and took Capitalism as more of a given system rather than an op-
tion among choices. The only issue with the Italian Constitution in this regard is
that while it has so many rights and duties towards its citizens’ benefit, it also
leaves itself with the perplexing question as to how much provision is enough,
and to what extent is it feasible for the state to fulfill these obligations – as was
seen with Article Three found within the Fundamental Principles.
The final sections of the Italian Constitution revolve around the structure
of the Italian Government, which is very similar to that of the United States:
both nations have a separate lower house and upper house (the upper house
are both named the Senate), and at the head of the nation stands the President,
along with a Judiciary, which completes the triangle of power (Newell 56). It is
within this section entitled Organizations of the Republic in which the two consti-
tutions most closely resemble each other; both constitutions outline that a
democratic process is to be held by a regional basis in order to elect members
to either the House of Representative, or the Parliament, and each document
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specifies how old one must be in order to be considered for a governmental
post: “Senators are elected by universal and direct suffrage by voters who are
twenty-five years of age. Voters who have attained the age of forty are eligible
to be elected to the Senate.”(Italian Constitution Article 58). While the American
Constitutions describes the eligible candidate as such: “No Person shall be a
Representative who shall not have attained to the Age of twenty five Years, and
been seven Years a Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State in which he shall be chosen.” (US Consti-
tution Article 1, Section 2). The Italian Constitution also designates that the
number of representatives for each region within the country is to be based off
of the population of said region – almost identical to that of the United States
(Italian Constitution Article 57). However, the Italian Legislature works around a
bicameral system, wherein which the two branches of the Legislature have
equal powers, which allows for greater debates when passing laws – but that
comes with the expense of productivity (Newell 59). Again, the United States
Constitution and the Italian Constitution outline very similar methods of govern-
ing, while detailing very different systems, which are unique to each country.
The Italian President is elected into office by an assembly and serves for a
term of seven years, unlike that of the American President whom is directly
elected, and holds office for four years (Newell 56). Another power invested
within the Italian President is the ability to dissolve Parliament, which the Ameri-
can President is unable to do (Newell 57). However, the reason for such powers
invested within the President of Italy is due to the nature of the office to be
more of a mediator, rather than an executive like of that in the United States “…
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the supreme function of the President is to mediate and regulate with the aim of
ensuring that political processes are carried on without threatening national in-
tegration.” (Newell 58). However, much of what the Italian President is bound to
do is alike to that of the American President, such as introducing laws passed by
the Legislature, appointing government officials, receive diplomatic officials, and
acts as the Commander-in-Chief of the Armed Forces – almost identical to how
the American President functions (Italian Constitution Article 87). Though this
may seem to be a direct influence from the United States, it could very well be a
simple matter of logical convenience: a head of state tends to lead an army.
The Judiciary, like that of the United States, is set apart from the other
three branches of government, and functions as its own entity to avoid concen-
tration of power within one department or office, as is established in the Italian
Constitution “The provisions concerning the organisation of the Judiciary and the
judges are laid out by law. The law ensures the independence of judges of spe-
cial courts, of state prosecutors of those courts, and of other persons participat-
ing in the administration of justice.” (Italian Constitution Article 108). The United
States Constitution works in a similar fashion: “In all Cases affecting Ambas-
sadors, other public Ministers and Consuls, and those in which a State shall be
Party, the supreme Court shall have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have appellate Jurisdiction, both as
to Law and Fact.” (US Constitution Article 6). However, despite the closeness in
their functions, the Italian Constitution contains within it an act which allows citi-
zens to be protected from any abuse of power, and allows citizens to appeal
cases to that of the Court of Cassation (Newell 61). This court allows for citizens
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to challenge rulings conducted by the Supreme Court, if said citizen believes
that the law has been violated due to their sentence (Newell 61). No such ability
exists directly within the United States Constitution that allows for citizens to re-
peal sentences passed by the Supreme Court.
Overall, the United States and the Italian Constitution appear to be very
similar in their governmental and political makeup. While both states have a no-
ticeable distance between them in terms of age, the two countries share a com-
mon feature between them that has lead them to construct very similar sys-
tems. For example, the Colonial Americans in the 18th century were denied their
basic rights as Englishmen, and sought to appeal their case to a Parliament that
became increasingly deaf due to the geographical distance. As such, while the
Americans never experienced any real tyranny (the American Revolution was in-
stigated over taxes on tea) the Italian people did under the Fascist regime which
actively persecuted citizens of the country, along with allying the Italian people
with the likes of Adolf Hitler. Hence, the American Constitution appears to be
more focused around limiting the power of government through setting up clear
boundaries and divisions of power, while the Italian Constitution extends that
further, by granting more detailed rights and privileges to the citizenry, to
demonstrate their sovereignty over the state (which manifest themselves
through social, economic and political rights). However, and to recapitulate a
previous point, the American Constitution seems to lack any consideration for
economic and social rights which the Italian citizenry take for granted. For ex-
ample, the Italian Constitution details its duty to the people through providing
means for the populace to work, while providing them the benefits of universal
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healthcare and family support – the United States doesn’t do that. However,
while this lacking may be due to the American Constitution’s age, the Italian
Constitution also shows its date through ill-conceived “duties" to the people that
– while admirable – are also difficult and impractical to carry out. Article Three
within the Fundamental Principles, for instance demonstrates this issue per-
fectly, which elaborates that the State must encourage human development,
and is required to remove all obstacles impeding said development.
Works Cited
Italian Constitution, art. 1, art. 2, art. 3, art. 29, art. 30, art. 31, art. 32, art. 35,
art. 36, art. 37, art. 58, art. 87, art. 108
James Newell, The Politics of Italy: Governance in a Normal Country, Cambridge:
Cambridge University Press, 2010.
U.S. Constitution, art. 1, sec. 2., art. 3, art. 4, art. 5, art. 6, art. 8