Potere, procedimento e funzione nella revisione referendaria

The paper assists in evaluating the impact of the last attempt to amend the Italian Constitution, putting forward a comprehensive critical analysis of the common opinions shared by scholars when considering the nature and extension of the procedures currently envisaged by art. 138 of Italian Constitution. From such perspective, the author contests in particular the common belief that amendment power, as set out by the same art. 138, is unitary, and, not to mention the special procedures passed in the ‘90ies, shows that in reality the Italian Constitution has introduced several different procedures to amend the Constitution (art. 132 Cost.; l. cost. 2/2001), and that such a plurality of procedures is born from the requirement to ensure that different interests, both general and those specifically affecting social and parliamentary minorities, are fully considered in the passing of a constitutional reform act. And stresses that the idea of a unitary power of constitutional amendment is mainly a remnant of the revolutionary doctrine of pouvoir constituant. Therefore, on the basis of the theory of public function, as developed in the different field of judicial review of administrative measures (A. Merkl, G. Berti), the author shows that the specific features of each different procedure entail different set of limits to the extension and use of legislative power aimed to produce a formal amendment, given that the function which lies behind any use of amendment power is conditioned by the procedure itself. On such basis the author then concludes that ‘organic’ reforms - i.e. legislation which allows for the passing, by one single act, of several different amendments to several different sections and areas of the Constitution - should be admitted only when that amendment procedure takes entirely place in the Houses of Parliament and with a qualified majority of 2/3 of M.P.’s. And that when such a majority is not reached, and the act must be devolved to popular vote, the law can only introduce individual amendments, in order to prevent against the unreasonable requirement of each voting citizen being compelled to vote on a plurality of issues at any one time with one single vote. Which would be a violation of political freedoms as granted by art. 48 Cost., as enforced by constant ruling of Italian Constitutional Court with reference to referendums set to produce a total or partial abrogation of parliamentary statutes.