Unamendability in Post-World War II Constitutions: The Cases of Italy and Germany

In Europe, post-World War II constituent moments were characterized by the attempt to avoid the establishment of new authoritarianisms through written, rigid, and democratic constitutions.

The cases of Italy and Germany are relevant in this sense and allow for an interesting comparison in light of the European Common Constitutional Heritage’s role. Both cases demonstrate the importance of the long-lasting European consti­tutional tradition despite the process of supranational integration was just at its beginning. The influence of such a Heritage is evident from the debates in the Constituent Assemblies, particularly when they discussed the definition of the unamendable elements of the constitutional order.

The drafting of the Italian Constitution started after the institutional referendum and the election of the Constituent Assembly on June 2, 1946. It ended with the Assembly’s approval on December 22, 1947.^[1508] The Italian Constitution is deeply influenced by the transitional period that began when the King decided to dismiss Benito Mussolini, leader of the National Fascist Party, from his charge of Prime Minister.^[1509] This Charter fashioned the new Italian legal system as a constitutional democracy, based on values and principles rooted in republicanism.^[1510] In order to protect such principles, Article 139 of the Constitution states the unamendability of the republican form of government, mirroring the wording of the coeval French Charter.^[1511] Like the French framers, the Italian framers aimed at entrenching a constitutional culture able to overcome the Italian society’s lack of political homogeneity and establishing a pluralistic democracy to counter the idea of a strong political majority^[1512] and its possible distortions.

In Germany, the beginning of the constitutional movement was more troubled. At the Potsdam Conference (from July to August 1945), the winning powers of the War (Britain, the U.S., France, and the USSR) decided to divide the country into four zones of influence. This division soon resulted in the polarizing between liberal democracy and popular democracy and two separate constitution-making processes started. In the Soviet zone (German Democratic Republic), a Constitution was approved on October 7, 1949, based on the tenets of a Communist State.^[1513] The three other zones were united as the German Federal Republic, whose con­stitutional framers—feeling the territory halved—approved a text known as Basic Law. In theory, the Basic Law would have been considered the Constitution only once the country was reunited, as it effectively happened in 1990,^[1514] after the fall of the Berlin Wall. Notwithstanding, it was clear that the Basic Law was only pro­visional with regard to the geography; the choice for democracy and the rule of law (Rechtsstaat, in German) was definitive. These principles were so important that the 1949 German Basic Law declared, at Article 79, the inadmissibility of amendments concerning the division of the Federation in Lander and their participation in the legislative process. Additionally, Article 1 declared the inviolability of human dignity. Article 20 further established the democratic and social federal character of Germany, the principle of people’s sovereignty, and the Germans’ right to resist any attempt to abolish the constitutional order.^[1515] The reasons for providing such una­mendability reside in the aforementioned constitution-making process and in the country’s constitutional history^[1516]; they also seem to reflect the main characteristics of the European Heritage.

explained by the historical experience and by the moral-ethical recollection of the past system of National Socialism. The almighty totalitarian state demanded limitless authority over all aspect of social life and, in pursuing its goal, had no regard for individual life. In contrast to this, the Basic Law established a value-oriented order, which puts the individual and his dignity into the very center of all its provisions.^[1517]

The will to protect democracy, intended not only as a procedural practice, but rather as a set of principles based on the rule of law and on rights’ protection, emerges also from the rules on the ban of political parties (Article 21 of the Constitution). The ban confirms Germany as a militant democracy, ‘one that will defend itself from those who attempt to destroy it or its fundamental values’.^[1518]

The understanding of such values in both countries is directly connected to the interpretation of unamendable clauses Constitutional Courts provide. In fact, in Italy, the Constitutional Court progressively extended unamendability by affirming it also affects the rights qualified as “inviolable” by the Constitution, along with all the principles enshrining the essence of the supreme values on which the Constitution itself is based.

The Republic recognizes and guarantees the inviolable rights of the person, as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled.^[1519]

According to this provision, the Italian Constitutional Court affirmed in 1956 that Article 2 recognizes the non-negotiable heritage of human beings.^[1520] Nonetheless, for a long time, the Court limited its enforceability to the rights explicitly enumerated in the Constitution^[1521] and, residually, to rights that were not listed but were coessential to those that were listed.^[1522] During the 1980s, the case law of the Italian Constitutional Court evolved. Article 2 started to be considered a clause foreclosed from values that were not related to the Constitution, but open to new interpretations of its content based on the changing social context.^[1523] It is up to the constitutional judges to decide, case by case, whether a right may be included among the inviolable ones. The role of the Italian Constitutional Court was not limited to the recognition of inviolable rights as implicitly unamendable given that its case law broadened the limits to amendability following the so-called systematic interpretation.

It is worth noting that the German Federal Constitutional Tribunal (GFCT) has debated the existence of implicit limits to constitutional amendability as well. In 1951, the GFCT considered (and agreed with) the declaration the Bavarian Constitutional Court issued one year before, which stated that:

there are constitutional principles, which are of so elementary a nature and so much expression of a law that precedes the constitution, that the maker of the constitution himself is bound by them. Other constitutional norms [...] can be void because they conflict with them.^[1525]

The Tribunal further stated that “Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions of the Basic Law are subordinate”. Two years later, the Tribunal declared that positive constitutional laws might be invalid when transcending the limits of justice.^[1526] Nevertheless, the more Germany consolidated as a democratic State, the more the Tribunal set aside the natural law theory and started to rely on the principles stated in Article 79, interpreting them extensively.^[1527] Particularly, the Tribunal seems to have built a vision of the pillar principles of the legal system from the tension between personal and communitarian values. Human dignity and freedom to develop individual personality represent the highest ranked elements conceived as a whole in the right to personality (Personlichkeitrecht); on the top of the hierarchy of the communitarian values, there are the laws of ethics and the liberal democratic legal system.

As previously stated, neither country enjoyed the support of a fully established European integration. Nonetheless, they relied on the already existing European Heritage and represented a source of inspiration for its further evolution. Both Italy and Germany reiterated, despite using different wording, the fundamentality of a system based on democratic institutions and the existence of checks and balances among them. They also used meticulously selected words to underline the State’s duty in protecting fundamental rights. In Germany, this duty was considered so fundamental—to the extent of being unamendable—since the constitution-making process began; In Italy, an intervention of the Constitutional Court was needed to determine the unamendability of the inviolable rights.

A further consideration is necessary regarding the role of Constitutional Courts in the evolution of the European Common Constitutional Heritage. The GFCT engaged in an intense dialogue with EU institutions on the consistency of the EU Treaties with national constitutional laws and traditions—probably more so than any other European Court. It stated that as long as the protection of rights seems to be higher in Germany than in the rest of the European system, the devolution of powers at the supranational level has to be limited.^[1528] In Italy, the Constitutional Court dealt with the role of ECHR and with the relations between national con­stitutional law and European Law. The ECHR, as previously discussed, has been used to give a broader interpretation to the catalogue of fundamental rights by declaring the provisions of the Convention as interposed norms (norma interposta), part of the Italian legal order, but always subject to judicial review.^[1529] As for the relationship with EU Law, the Court, mirroring the German Tribunal, affirmed that

it is directly enforced by all legal authorities, courts included [...] regardless of whether it infringes or bypasses existing ordinary or even constitutional provisions. The only limit [.] is that European norms always prevail as long as they are not proven to infringe the supreme principles and inviolable rights on which the Italian Constitutional order is based.^[1530]

This clearly demonstrates that (a) the European Heritage cannot be simplified as an overlap with European Union Law and (b) its evolution continues to be inter­twined with national constitutional traditions.

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