The “due process” of constitutional revision: which guidance from Europe?

Abstract

This paper deals with the influence exerted by the Council of Europe, notably by the Venice Commission, and by the European Union on constitutional amendments with a special focus on Italy, a founding member state of both organisations. It proceeds as follows: it first provides a quick introduction into the vexata questio of the difficult balance between rigidity and flexibility of democratic Constitutions, well-illustrated by the academic debate and by the Venice Commission’s Report on constitutional amendments of 2010 (CDL-AD(2010)001). Second, the paper considers which European standards have been set, especially by the Venice Commission, to design an effective and legitimate constitutional amendment procedure, and whether the Italian constitutional provisions and practice have abide to them. Third, the contribution reflects on the influence exerted by the Italian participation in the Council of Europe and in the European Union on the substance of the amendments adopted to the Italian Constitution. It is argued that at least since the mid-Twentieth century constitutional amendments procedures can no longer be treated as purely national phenomena. They are more and more guided by standards set at supranational level, notably by the Venice Commission, as derived by the European common constitutional heritage. The influence is exerted both on a procedural level, defining what can be called as the “due process” of constitutional revision, and on a more substantive level.