Constitutional Analysis

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

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

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

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

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

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

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 “…

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

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

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

Constitutional Analysis

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