In Keeping with the Spirit of the Albertine Statute—Constitutionalisation of the National Unification

Abstract

This chapter deals with the difficult process of constitutionalisation which characterised Italian Unification . Constitutionalisation is a long-term phenomenon which had the purpose of giving constitutional forms to the Nation . The promulgation of the Albertine Statute is more the start than the arrival of this phenomenon. The focus of this investigation is, therefore, to study the Constitution through its evolution paying particular attention to the process of legal integration within the structures of the Albertine Statute and to the amendment mechanisms of the constitutional text. The preamble of the Albertine Statute speaks of «perpetual and irrevocable fundamental law ». The word «perpetual» meant the prohibition of revoking constitutional concession, while the word «irrevocable» was intended as a pact between the Sovereign and the Nation . Over the years, very few were the changes to the letter of the Albertine Statute. The interpretation and the practice represented the most important mechanisms of constitutional change (implicit constitutional changes). A primary role was acknowledged to non-written norms. In this perspective, it may well be said that the Italian Constitution consisted in something more than the written text and dwelt in the spirit and not in the letter of the Albertine Statute.

Keywords

«Ciò che forma una costituzione è lo spirito, non la lettera» (G. Arcoleo, Diritto costituzionale. Dottrina e storia, Napoli, 1904, 216).

1 Overview

Under the Albertine Statute speaking of constitution meant referring to the «fundamental law of the State» as well as to the act by which the sovereign limits himself transforming the absolute Monarchy into a constitutional government .¹ For the purpose of defining the Constitution , references to Gian Domenico Romagnosi did not go amiss, a jurist who had explained that through the word ‘Constitution ’ one was referring both to a written text and to the legal order of the State.² In the commentary by Carlo Boncompagni , to the question: what is the constitution ?, its pactional nature (an agreement among the various parties in society) was highlighted and the idea was reinforced, through the metaphor of the human body and natural sciences, according to which the constitution was a law that defined the skeleton of the State.³

By way of these examples, we may approximately say that the word ‘Constitution’ referred to a political organisation based on consociationalism (pactum societatis), but also to a normative act, to the subdivision of supreme powers within the State and to the idea of limitation/equilibrium of power, to the guarantee of liberties. These definitions recall the modern meaning of Constitution which, from mere empirical concept that described the political condition of a State, ever more took on a prescriptive meaning enriching itself with normative elements .⁴ The Italian language had no word indicating the normative layout of the State until the late Eighteenth century.⁵

Having said this, it is fruitless to wish to find the normative superiority of the Constitution , as expression of a positivistic concept, within the Italian experience of the liberal period.⁶ It is neither worth our while focussing attention on the normative text of the Albertine Statute to demonstrate its shortcomings and ambivalences. The perspective is rather that of verifying how the Albertine Statute was intended in the liberal era, that of the value attributed to the constitutional charter during the process of national unification , that of constitutional interpretation . It is a matter of reading the Albertine Statute through its evolution, considering contests and contrasts to keep the institutions in harmony with civil society. Specifically, the focus of this investigation is the constitutionalisation , understood on the one hand as the process of legal integration within the structure of the Albertine Statute , extended to all the pre-Unitary States following political Unification, which implies never-fully-successful attempts at developing representative institutions and parliamentarianism, at democratisation and consensus, while on the other the mechanism of interpretation and amendability (revision) of the constitutional text which leads to an integration without a written document as an act of a constituent power exercised by the people. In this respect literature talked about «weak constitutionalisation » as an original character and permanent feature of the Italian State, highlighting how from the very beginning the Italian constitutional development happened without breaks, without revolutions and in the name of continuity.⁷

If it is true that in Italy constitutionalisation has been a “downward process”, this can be partly explained with the culture of the liberal-moderate party concerned about avoiding excesses, favouring compromise and shunning big breaks and upheavals. It is extremely appropriate to underline how the promulgation of a written constitution constitutes only the first step of the slow and difficult process of constitutionalisation , made of progresses but also of reactions, standstills. The other phase is that of experimenting which led to an evolution of the meaning of the Statute in the light of the socio-cultural context.

In Italy, constitutionalisation of National unification is a long-term phenomenon, constituting the key feature for reading the National Building.⁸ Specifically, the Albertine Statute is a starting point more than an arrival point.⁹ From the moment when the sovereign grants the constitution, we realise that the normative act deriving from the granting is insufficient in itself, the constitutional law is simply an act which cannot be revoked, but the constitution in order to live must obtain consent and public opinion must believe in it.

2 Constitution, Charte and Statuto: Different Names for the Same Thing?

In the Commento allo Statuto del Regno (1909) by Francesco Racioppi and Ignazio Brunelli we read:

Sostanzialmente, Costituzione è il complesso delle regole, scritte o non scritte – leggi, usi, precedenti, consuetudini – che danno la fisionomia e il modo di essere politico di uno Stato, ossia determinano in qual modo la sovranità si esercita per mezzo degli organi varii che nel loro complesso costituiscono il governo, e quali sfere di diritti sono garantiti dalla sovranità ai cittadini singoli di fronte al governo medesimo. In breve, Costituzione sostanzialmente è il complesso delle regole che determinano l’ordinamento del governo e le libertà dei cittadini. Formalmente, invece, Costituzione è l’atto o documento scritto , che contiene le regole fondamentali dell’ordinamento politico.¹⁰

The definition allows highlighting how, for historical reasons, the conviction that the Constitution had a life beyond the written text affirmed itself quickly. It was a matter of a vision already present in the thought of the primeval Italian constitutional doctrine.¹¹

The Commentary by Brunelli and Racioppi highlighted also that in the Italian experience the word ‘constitution ’ was a synonym for Statute. It was indeed a matter of two words of Latin origin respectively deriving from the verbs constituere and statuere.¹² During the Ancien Regime with ‘constitution’ were generically indicated all the normative acts issued by the Sovereign.¹³ The word ‘statuto ’ was directly linkable to the late medieval experience of the Italian Communes where the word indicated the whole of rules which regulated the life of the civitas.

In the minutes of the Consiglio di Conferenza (Council of Conference) there is no sign of the reasons which led to the denomination even though the hypothesis that the nomen juris had been proposed by Giovanetti was put forward.¹⁴ The choice of the denomination was not devoid of relevance if it is duly considered, as the above-mentioned commentary underlines, that the word ‘statute’ had its French corresponding word in the expression charte constitutionelle.

In the France of 1814, the question was, indeed, the subject of careful discussion. Constitution called the revolutionary period back to mind in that act which came from people. The French monarchy wanted, on the contrary, to unequivocally underline that the new normative text was a direct derivation of monarchical power. Therefore, once completed the drawing of the text within the Council of the King, the Chancellor Charles Henri Dambray proposed to use the expression Ordonnance de reformation, while Antoine-François-Claude Ferrand suggested the expression Acte constitutionnel. The position of Jacques Claude Beugnot prevailed, who shunning both proposals suggested the term Charte to which the adjective constitutionnelle was coupled according to the decision of King Louis XVIII .¹⁵

If, in Italy as well, very probably the word Constitution was rejected because it was considered too ‘revolutionary’, the adjective ‘constitutional’ was instead associated with the government in order to indicate the way in which the monarchical power was shared with the people.¹⁶ The Statute , indeed, defined the constitutional government as that form of power exercising shared between Sovereign and Parliament where a connection between those ruled and rulers was guaranteed.¹⁷

3 Albertine Statute as Fundamental Law

The language of the Albertine Statute was archaic and ambiguous, the text was without organic connections. The constitution of Charles Albert contained eighty-one articles and three transitory regulations. The first twenty-three articles were mainly dedicated to the person of the King and to the institution of Regency. Art. 24-32 were gathered under the title On rights and duties of the citizen. Art. 33-64 concerned the Parliament and were respectively dedicated to the Senate, to the Chamber of Deputies and contained shared regulations for the functioning of both branches of Parliament. Art. 65-67 concerned Ministers; Art. 68-73 referred to the judicial power; the remaining part was general regulations.

The written constitution was bare and many rules had the taste of general principles rather than directly binding juridical norms.¹⁸ Consequently, the true game was played at the level of praxis and interpretation, of the perennial difficulty to bring the principles therein contained within the doctrinal borders of modern constitutionalism .¹⁹ Substantially it was a matter of extrapolating the effective limitations to the monarchical power from the text of the Constitution and enucleating rules which consented a real development of the parliamentary principle guaranteeing fundamental rights and liberties.

3.1 The Albertine Statute by Means of Its Preamble

The Albertine Statute was preceded by an ample preamble. The introductive formula «per la grazia di Dio» (by the grace of God) recalled the expression Reges Dei gratia, reges Catholici probably used for the first time by the Lombard Kings, then made his own by Charlemagne and, finally, after a long evolution become an expression of royal legitimism .²⁰ It was inserted in the preamble nearly to mark without any doubts that the constitution was an act of sovereignty of the King . Then, the list of the feudal and honorary titles of Savoy Sovereigns followed. The same expression «con la lealtà di Re e con l’affetto di padre» (with the loyalty of King and the love of Father), which precedes the manifestation of will directed to grant representative institutions more in tune with the new times and the interests of the Nation , is typical of the paternalistic vision of the State d’ancien regime. It is not difficult to find a certain lexical familiarity with the 1814 Charte Constitutionnelle in the Preamble of the Albertine Statute .²¹ The beginning of the Albertine Statute reproduces the magniloquent expressions of the French model. The formula «par la grace de Dieu» had its precedent besides in the Charte also in the Déclaration de Saint-Ouen by which the King rejected the text elaborated by the Senate (so-called senatorial constitution) and established the bases for a new Constitution with the Proclamation of 2 May 1814 .

Following the Restoration , the French Monarchy had dedicated an obsessive care to the Preamble inaugurating a new form of constitutionalism .²² The Commissioner Beugnot summarised the new constitutional philosophy with the formula «to absorb the Revolution into the Monarchy».²³ In a project of Preamble drawn up by Louis de Fontanes , a free and monarchic constitution which kept all the prerogative of the Crown was already outlined.²⁴ Such a layout was restated in the definitive text.²⁵ In other words, the Charte was an act by the King who decided to self-limit his own powers maintaining free and monarchic institutions together.

Almost at the end of the preamble the Albertine Statute is defined «perpetual and irrevocable fundamental law ». It is highly probable that, according to the king’s will, also the expression «fundamental law » evoked the theories concerning the lois fondamentales typical of the French absolute monarchy.²⁶ «Perpetual» meant the oath (political and juridical obligation) taken by the King for himself and his successors, of not revoking the constitutional granting in any way.

The word «irrevocable» was, instead, intended in the meaning of a pact between the Sovereign and the Nation .²⁷ The idea of pact referred, above all, to the ancient conception which saw, in the leges fundamentales , a contract by which the relationships between sovereigns and parliamentary assemblies were regulated guaranteeing the succession to the throne. Moreover, such an idea allowed basing the State origins not so much on popular sovereignty, rather on a pact. In such a way, the State was based upon monarchy and people without having to go through a constituent assembly . In the background there were the positions of the French doctrinarians. In this sense the position of Constant was emblematic: according to him the constitution essentially had a political supremacy expressing the great pact between Monarchy and Nation .²⁸ In a letter sent to Minister Ricci , Antonio Costa noted that the Preamble little complied with the principles that regulated a constitutional government highlighting:

Uno Statuto rappresentativo, dovrebbe essere, anziché un ordinamento sovrano, il risultato di un patto tra Popolo e Re; e dovendo d’altronde servir di Legge fondamentale dello Stato; Legge che deve ammorzare ogni dissidio tra il Re ed il Popolo, parrebbe non tanto conveniente quanto importante il consultare il Popolo sulle basi che dovrebbero adottarsi. Epperò sarebbe assai profittevole che venisse lo Statuto pubblicato, dichiarato meramente provvisorio; provvisorio; cioè nel senso non dell’effetto, ma del disposto, per essere poi discusso da una Nazionale Assemblea , che assumerebbe il titolo di Costituente. Che se una Costituente riuscisse impossibile ad ottenersi, lo Statuto domanda, per i tempi in cui fu pubblicato, di essere riformato.²⁹

The remarks of Antonio Costa neatly disputed the traditional idea which made the fundamental law of the State rest on the conventional moment of the pactum and therefore the idea which tied up the will of the Prince to a public contract because of mutual consent. Such was indeed the value that some important documents of the European political tradition assumed.³⁰ According to the Ligurian scholar, a representative constitution could not be defined a pact between People and King without having consulted the people on the fundamental rules to adopt. The same words «perpetual» and «irrevocable» were an anachronism with reference to the reason of the times in that they bound government action for a more or less long lapse of time. In such a context Costa asked to consider the Albertine statute as provisional and to convene an assembly for its reform.

In Subalpine tradition, the idea of the contract was however destined to survive in the institutional everyday life. The notion of pact which—as it has been recently underlined—did not come out of the Statute but it preceded it,³¹ was destined to be reaffirmed every time it was highlighted that the representative government was the fruit of the cooperation between King and Parliament by which the most important choices for the nation were made.

3.2 Constitutional/Unconstitutional Law in Parliamentary Acts

The expression “unconstitutional” was not unknown when the Albertine Statute was in force.³² While examining sources it is not difficult to find how during parliamentary sessions speakers raised questions of the unconstitutionalability of statute laws and regulations without affirming a prominence of the Constitution over the other juridical norms for this reason.³³ Rather there was a certain coincidence between the meaning which the term ‘unconstitutional’ assumed within English public law and the expression used in Italian constitutional practice where ‘unconstitutional’ was generically intended «every incorrect constitutional behaviour».³⁴

Generally, validity of a juridical norm should be found in its most generic conformity to the sensitivity of public opinion. Therefore, a normative act or fact was considered unconstitutional whenever it was discordant with the spirit of the Constitution .

Cavour inaugurated this form of interpretation of the Albertine Statute . This was the most important legacy of the statesman to the constitutional theory of the liberal period. From 1850 every normative act was examined in the light not only of the letter of the Constitution, but especially of its Spirit. This allowed keeping the legal order in constant harmony with public opinion.

One of Cavour ’s first interventions in this respect took place on the occasion of the discussion of the Bill concerning the immovability of judges.³⁵ The Parliament asked itself if the constitutional principle according to which judges are immovable should be interpreted in the sense that immovability shall be calculated from their appointment date or rather from the promulgation of the Statute. Cavour was in favour of the first interpretation because it was more in tune with the new constitutional regime.³⁶

Examples can multiply. Think also of the discussion on the Bill for the tax on individuals and goods.³⁷ Deputy Farina accused the Cabinet of violating the most general principles proclaimed by the Statute. Cavour , minister of Finances, defended himself establishing that the new tax was perfectly in compliance with the Spirit of the Statute which imposed every citizen to contribute to the expenditure of the State proportionally to his own income.³⁸ The Parliament handled questions which dealt with central aspects of public finance. Thanks to the great ability of the speakers, budget questions were considered from a constitutional viewpoint so much as to become, in salient moments of national history, the place where to favour a greater political integration and to better develop constitutional rules. In such direction, can we also call an intervention in financial matters, as well, by Deputy Minghetti to mind. A Bill concerning stamp duties was accused of being contrary to the Spirit of the Constitution, also because some years before, a statute law of similar content had been rejected by the legislative assembly. During the parliamentary debate, Minghetti had the chance of clarifying the relationship among Constitution, public opinion and constitutional government: the true nature of the constitutional government was that of introducing legislative novelties while keeping the Constitution connected with popular feeling.³⁹

During the liberal period, was instead inexistent and/or irrelevant the category of constitutional law. The distinction between constitutional law and the others laws was formally introduced by Art. 12, Law of 9 December 1928 N^o 2693, which formally sanctioned the institution of the Grand Council of Fascism . This legislative provision established the compulsory opinion of the Grand Council on every law proposal with a constitutional nature such as those dealing with the following matters: succession to the throne, attributions and prerogatives of the Crown; the composition and functioning of the Grand Council, of the Senate of the Kingdom and of the Deputies’ Chamber; attribution and prerogatives of the Head of the Government, Prime Minister, Secretary of State; the faculty of the Executive power to issue juridical norms; trade union and corporative legal order; the relationship between State and Holy See; international treaties which involved variations to the territories of the State and its colonies, or rather the surrender to acquire territories.⁴⁰ This caused Italian doctrine to discuss, if this new law provision had triggered a new hierarchy among sources giving juridical prominence to the constitution and the constitutional laws over the other law sources. The difference was indeed at procedural level, in that it foresaw a heavier procedure, consisting in the advice of the Grand Council, for the approval of constitutional laws, and not really at the level of source hierarchy thanks to which an ordinary law could be declared void.⁴¹

4 Theories on Constitutional Revision

The Albertine Statute did not foresee a heavier procedure for constitutional revision.

The lack of an explicit legal provision generated no small measure of uncertainty, the reflections of the French jurists weighed upon the Italian debate. They asked themselves, facing a normative gap, if the Charte constitutionelle could be amended and, if so, about who the competent authority would be.⁴² While the 1814 Constitution was in force, the conviction that constitutional changes could come exclusively from the King affirmed itself. With the 1830 Charte , accepted by King Louis Philippe, the English model of parliamentary omnipotence was reinforced. Particularly, the issue was discussed with reference to the regency law (30 August 1842). On this occasion, Deputy Guizot pronounced the sentence, then become famous, according to which the distinction between constituent power and constituted power was like distinguishing between holiday power, and every day power.⁴³

As far as the Italian constitutional experience is specifically concerned, three different theories which followed one another and coexisted for all the duration of Kingdom of Italy were prefigured.⁴⁴

4.1 Immutability of the Constitution and Constituent Power

Above all, in an initial phase (two-year period 1848–49) the theory of the immutability of the Statute affirmed itself. The fear of a repealing of the constitutional grants generated an intransigent position. Such a theory was hermeneutically based on the words contained in the Preamble. According to this theoretical layout, the clause «perpetual and irrevocable law» was interpreted not only as the prohibition directed to the Sovereign of repealing the Constitution, but indicated also the absolute prohibition of amendability of the document.

This interpretation was enriched by further normative bases found in Art. 49, which required deputies and senators to take an oath of being faithful to the king and of being loyal to the Statute before they started exercising their functions, and in Art. 22 which required the monarch to faithfully respect the Statute of the Kingdom.⁴⁵ By the oath of faithfulness to the Statuto, sovereign and representative of the people committed themselves not to amend the letter of the constitution.

Consequently, the only tool for proceeding towards a formal revision of the constitutional text was to recur to the constituent power . This solution found a reference in the words of King Charles Albert who on the occasion of the opening of the second legislature made explicit reference to a constituent assembly which had the revision of the constitutional text as a duty.⁴⁶

The discourse of the sovereign was pronounced on 1 February 1849 in a very particular moment of the national history: the five days of Milan were just over, there had been the armistice of Salasco and the resurgence of the conflicts with Austria , while Venice resisted siege and in Rome the republic had been proclaimed. The Lombardy-Venetian people were going to hold universal-suffrage elections and they had voted for joining the Kingdom of Piedmont forcing the latter to convene a national assembly which had to proceed to revising the Statute.⁴⁷

Giuseppe Mazzini , moved to Milan in order to give his support to the patriots, sent a note to the Lombardy provisional Government highlighting his disappointment for having called universal-suffrage elections which offered the choice of unifying with the monarchy of Charles Albert or of keeping a separate government.⁴⁸ Popular consultation was carried on anyway and the Lombardy people voted for the relative joining together which was approved by the Chamber of Deputies on 28 June 1848.⁴⁹

The idea of a constituent power spread from the territories of Lombardy-Venetia to all the Italian peninsula. The debate which initially was directed at organising those freed territories forced the most important characters to measure themselves with the ideologies at the base of the constituent power. Distinctions between moderates and democrats were outlined in a clearer way.⁵⁰ The group of moderates sustained the monarchical-representative form and a unification under the aegis of a Monarch, at most reaching an idea of confederal assembly. Within this group there was, for example, Vincenzo Gioberti who ever since his Primato civile e morale degli italiani (1843) proposed a monarchical federalism of a neo-Guelph orientation, that is a confederation of States with the Pope as its head, and in September 1848 in Turin took part in the constitution of the Società per la confederazione italiana (Society for the Italian confederation) which had the programme of favouring a federal pact in Italy.⁵¹ The Society deemed the summons of a constituent assembly which established the forms and norms of the Confederation of the Italian States opportune and for this purpose nominated a commission for the drawing up of a Bill on the electoral law and of a model of federal act. These Bills were read, modified and approved during the public meeting which was held at the national theatre on 27 October 1848 under the presidency of Mamiani and they were sent together with an Indirizzo ai Principi e ai Parlamenti italiani. Another supporter of a confederation was Antonio Rosmini who intervened on the merging of Piedmont with the provinces of Lombardy-Venetia by way of a series of articles published in Il Risorgimento and afterwards, collected under the title of La Costituente del Regno dell’Alta Italia.⁵²

The group of the democrats considered, instead, the Lombard war from a national viewpoint to be solved by recurring to a constituent assembly elected by universal suffrage which would have drawn up the pact among all individuals of the dawning nation.⁵³ Also Giulio Pisani, in a small volume dedicated to Giuseppe Montanelli, favoured the idea of a constituent power as the only tool for Italian independence.⁵⁴ Mazzini ’s press contributed to spread the ideas of a constituent assembly with a popular base.⁵⁵ An important educative mission was attributed to journalism: to form a public opinion alert and informed.

The binomial “revision of the constitution” and “constituent power” heightened the tones of the political debate. On the one hand, the limits of constitutionalism by means of monarchical granting were highlighted, while on the other, the necessity of a sovereign power for a full legitimisation was underlined.⁵⁶ The end of the war with the Austrian victory made the idea of a constituent assembly which was able to modify the Albertine Statute doze off again.

4.2 Omnipotence of Parliament

It was the legal doctrine which better corresponded to the feeling of the time.⁵⁷ Parliamentary omnipotence , otherwise called Parliamentary sovereignty, acknowledged, to the legislative body, the power of modifying the letter of the constitution, of abrogating its principles, of waiving them or interpreting them by way of the ordinary legislative activity; rather, by way of the constitutional practice . This theory, borrowed with appropriate adjustments from the English juridical doctrine, had the advantage of sterilising the issue concerning the constituent power as summa potestatis attributed to the people, and at the same time guaranteed the possibility of adapting the constitutional text to the changing and inevitable necessities of the real life, without reducing the Constitution to the written document. Consequently, it was impossible to distinguish between constituent powers and constituted powers, between ordinary sovereignty and extraordinary sovereignty; rather, a sole and unique sovereignty existed.⁵⁸

Such a layout was inaugurated by the well-renowned article by Camillo Cavour published in Il Risorgimento where voice was raised against those who criticised the expression ‘irrevocable’ as if in such a way a system of absolute immutability was established. He clarified that such a layout ran contrary to common sense, society’s needs and also to the most common constitutional theories, affirming that «the word ‘irrevocable’, as used in the Preamble of the Statute, is only literally applicable to the new and great principles proclaimed by it, and to the important fact of a pact destined to indissolubly link the people and the King. However, this does not mean that the particular conditions of the pact were not susceptible to progressive improvements operated with the common agreement of the two contracting parties: the King, with the help of the nation , in the future will always be able to introduce, within them, all the changes which will be indicated by experience and reason of the time period».⁵⁹

Little knowing the English parliamentary system, it was deemed convenient to imitate it. From here, according to the model of the King in Parliament, the body competent for the constitutional revision was considered to be the Parliament, to be understood indeed as the Monarch together with the Senate and the Chamber of Deputies. The normative base was found in Art. 3 of the Albertine Statute according to which the King and the two Chambers collectively exercised the legislative power.

The revision procedure was that briefly required for the promulgation of ordinary statute laws. The legislative initiative jointly belonged to the Sovereign and the Chambers (Art. 10). The bills should be firstly examined, then discussed and approved. Over time three different modalities for the examination of a bill developed: Offices system, three-readings system and committees system. Discussions were public and were carried on article by article (Art. 55). In the case that a bill was rejected, it could not be proposed again in the same parliamentary session (Art. 56). The procedure concluded with the royal approval and promulgation (Art. 7).⁶⁰

The above mentioned theory was not just useful to neutralise the constituent power in the hands of the people, but it was also functional to legitimise the representative government.⁶¹ Supporters of parliamentary omnipotence were aware of the novelties introduced by the Albertine Statute and were also alert to the immaturity of the new institutions which needed consent and legitimisation. In the initial imprinting the cohabitation between monarchical principle and representative principle was affirmed in that they were considered genetic elements: the nation was jointly represented by the Monarch and the Parliament. Practice was entrusted with the duty of better defining the relationships between the two constitutional bodies.

4.3 Intermediate Theory

After almost forty years from the entering into force of the Albertine Statute , the Italian juridical doctrine, the constant changes made in the constitutional text having been acknowledged—on the matter please see infra § 6—made the effort of singling out some corrections for the theory of parliamentary omnipotence .

Among the jurists the strengthened conviction that more things should be done in order that the distinction between Constitution and ordinary statute law be more clear cut.⁶² At the same time the theory according to which the Omnipotence of Parliament should necessarily meet some juridical limits for the purpose of avoiding the risk of a despotic government of the majority made inroads as well.

Along this direction, the difference between the English constitutional system and the Italian one was above all noted. Indeed, Italy based the form of its government on a written constitution which was missing in Britain. Moreover, as in England the law established that Parliamentary activity will find its limitations in the general law, fruit of constitutional centuries-old experience, in the same way in Italy the legislative function was limited by the juridical principles proclaimed by the Statute and, however, by the triadic nature of the legislative power subdivided between the King and the two branches of Parliament.⁶³

On these aspects, Santi Romano , jurist with great talents and a pronounced sensitivity, entered into the merits of the question singling out the legal, not just moral, limits to Parliamentary sovereignty with more precision.⁶⁴ First of all, the author warned that the boundaries of the legislative power were constituted by internal limits deriving from the same layout of powers and that it was impossible to single out external limits to the legislative power, like for example a syndicate on the legitimacy of the statute law to be attributed to the judges, both in the case of it being shaped as a control of constitutionality spread among all judges, and in the case of it being shaped as a control of constitutionality concentrated in the hands of special judges designated to perform this duty.⁶⁵

Santi Romano singled out absolute limits to Parliamentary sovereignty, like for example the prohibition of usurping the prerogatives of the other powers or the prohibition of derogating from international commitments by way of legislatives acts, and relative limits which allowed the Parliament to modify the constitutional norms only on particular conditions. Such conditions were: the necessity understood as living law, thanks to which at legislative level a dichotomy between law and life was cancelled; the derogation from Statute for the purpose of acknowledging a constitutional custom that already modified the constitutional letter in fact; integrative statute law, phenomenon which was halfway between the mechanism of text amendability and constitutional interpretation , which broadened the cases of implementation of the Albertine Statute . The author noted that the written constitution has its base in a non-written law, which directly emanates from social forces.⁶⁶ From this assumption came the fact that customs played a primary role in public law.

Generally, the attempt of the legal doctrine between the Nineteenth and the Twentieth centuries was that of distinguishing within the Statute between essential and/or fundamental norms and contingent or accessory norms, in such a way narrowing the absolute prohibition of constitutional revision to the sole first group of norms. This layout, however, only moved the question from the possibility of modifying the text to the often ephemeral attempt of classifying norms into primary and secondary. Doctrinal positions in the late Nineteenth century were many.⁶⁷ A common feature of these theories can be found in the intangibility of the representative government upon which the whole constitutional structure inaugurated by the Albertine Statute rested. In this sense the position expressed by Livio Minguzzi is exemplifying. He declared that the limit of parliamentary omnipotence lies within the same nature of the institution. Indeed, the Parliament being a body of the State, if the power of modifying the form of the State were attributed to it, it would mean acknowledging, to a sole body, the power to change the whole organism to which it belongs.⁶⁸ Minguzzi remarked once again how also in England Parliamentary omnipotence met a limit in the Crown. Indeed, the Parliament could never have acted against the royal prerogatives, in that monarchy had the power of approving the statute laws.

5 Flexibility and Elasticity of the Constitution in the Legal Debate

In this context, the Italian constitutional doctrine speaks of ‘flexibility’ and/or ‘elasticity’ of the Albertine Statute .

As is known, according to James Bryce ’s theory the Constitutions could be classified as rigid or flexible . Bryce denied any usefulness to the distinction between written and unwritten constitutions because «in all written Constitutions there is and must be, as we shall presently see, an element of unwritten usage, while in the so-called unwritten ones the tendency to treat the written record of custom or precedent as practically binding is strong, and makes that record almost equivalent to a formally enacted law, not to add the Unwritten Constitutions».⁶⁹ Specifically, the English jurist explained that «The Statutory Constitutions become developed by interpretation and fringed with decisions and enlarged or warped by custom , so that after a time the letter of their text no longer conveys their full effect».⁷⁰ Also, Bryce noted that «Excluding despotically governed countries, such as Russia , Turkey and Montenegro, there are now only these in Europe, those of the United Kingdom, of Hungary—an ancient and very interesting Constitution, presenting remarkable analogies to that of England—and of Italy, whose Constitution, though originally set forth in one document, has been so changed by legislation as to seem now properly referable to the flexible type. Elsewhere in Europe, all Constitutions would appear to be rigid».⁷¹ Definitely, the distinction between flexible and rigid Constitutions was in a formal method (or special revision procedure) of amending the constitution.

The Italian legal doctrine accepted Bryce ’s classification only at the beginning of the twentieth century, as a result of the constitutional changes introduced by the Fascist regime.

In particular, Teodosio Marchi analysed the flexibility of the Albertine Statute in two important essays: Lo Statuto albertino ed il suo sviluppo storico (1926) and Sul carattere rigido o flessibile della Costituzione italiana (1938).

In the first work, the author recognised two different merits of the Albertine Statute : the first, being a ‘written constitution ‘ and the second being a ‘flexible constitution’ . According to Marchi , the Albertine Statute could adapt continuously without violent tremors because it is similar to a centuries-old tree which keeps its trunk and changes leaves each new spring («può continuamente adattarsi, senza scosse violente, al graduale, perenne mutarsi della coscienza giuridica, quasi albero secolare, che, mantenendo saldo il suo tronco, si spoglia, via via, di rami inutili e secchi per rinverdirsi al soffio di ogni nuova primavera»).⁷²

In his second essay (Sul carattere rigido o flessibiule della Costituzione italiana), Teodosio Marchi reaffirmed that in the Subalpine experience there was no distinction between ordinary law and constitutional law, but the constitutional changes occur by means of the ordinary law.⁷³ Furthermore, he affirmed that even in flexible constitutions there was a principle unmodifiable and that was the form of Government.⁷⁴

Without knowing Bryce ’s theory well, Luigi Rossi preferred, however, to talk of L’elasticità dello Statuto Albertino (1939), meaning the ability of the Albertine Statute to adapt to the circumstances, because its formulas, summarising characteristics and generic, leave an enormous margin for development and their integration through special constitutional laws, various customs and interpretations («alle variabili necessità dei tempi e delle circostanze, perchè le sue formule, sintetiche e generiche, lasciano largo margine al loro sviluppo e alla loro integrazione mediante leggi costituzionali particolari, consuetudini e interpretazioni varie»).⁷⁵ Elasticity of the Statute also meant reconciling two opposites: the stability of the basic principles with the ability of transformation and change in special provisions. The author recognised that the issue of elasticity had something to do with flexibility, but they could not be equated.⁷⁶ The elasticity of the Constitution consisted not in the competence of Parliament to amend the constitution, but in the wide field reserved for the customary law to be understood in a broad sense, also, including usus fori, the consuetudo parlamenti and all sources not covered by the law. In flexible types of Constitutions , indeed, there was a variety of sources, there was not a primary source, a precise and reliable law; but there was a set of several different rules, which were intersected, made up, or deleted, according to the circumstances. Staying with Rossi , the characteristics of elasticity is useful in overcoming the distinction between flexible constitution and rigid constitution and surmounting the difficulties of this classification.

From these essays, the Albertine Statute was universally considered a flexible and an elastic Constitution meaning that the text could be innovated by ordinary law or the text could be changed without formal amendments . This debate was so pervasive that it even continued under the Italian Republican Constitution (1948). For example, by discussing the nature of the Albertine Statute , Alessandro Pace denied the logical assumption that only rigid constitutions do provide a special proceeding to amend the Constitutional text. Finally, in the evaluation of a Constitutional character the constitutional interpretation plays an important role.⁷⁷

6 Interpreting the Constitution: Letter of Statute, Customs and Practice

The category “flexible constitution ” was acknowledged late, even though it had extraordinary fortune and circulation.⁷⁸ Early on, jurists talked generically about interpretation in compliance with the spirit of the Constitution, changes, waivers or abrogation of the Statute.

Changes of the letter of the Albertine Statute were very few.⁷⁹ Among these, there was the article dedicated to the flag: the Constitution established the azure colour among the characteristics of the ensign, however after the Lombardy-Venetian war the Parliament approves a statute law which acknowledge the tricolour with the coat of arms of the Savoy family as a flag. A further example can be statute law N° 665 of 1912 with which Art. 50 of the Statute which prescribed no retribution or allowance for exercising the role of parliamentarian.⁸⁰

For the purpose of better understanding the Italian experience, attention must, however, not be paid not the changes of the letter, rather to the so-called tacit changes, that is to those changes of the meaning of the constitution without changing the written text for this reason . In other words, the interpretation and the practice represented the most important mechanism of constitutional change.⁸¹ In this context a primary role was acknowledge to non-written norms.⁸²

Italian writers justified this importance adopting the following reasons: the lack of a century-old tradition of doctrinal and legislative elaborations, the laconicism of the constitutional text, and finally the greater adaptability of customary law to the changeable practical needs. Scholars considered customary law as an autonomous, spontaneous and unintentional juridical source. The foundation of unwritten juridical norms was to be found in real and fundamental needs of constitutional life.⁸³ That which characterised customary law compared to other constitutional norms was the predominance of the political element, since certain relationships between State bodies, because of their complexity and changeability, are better suited to be regulated by the flexibility of customary law rather than the rigour and stability of written norms. Moreover, starting from Santi Romano ’s reflection, doctrine associated constitutional customary law with the so-called «correttezza costituzionale» (constitutional fairness), which only partially coincided with the English conventions of constitution.⁸⁴ The rules of «correttezza costituzionale» (constitutional fairness) were rules relating mainly to custom and political morality from which constitutional bodies should draw inspiration. These rules could not be classified among juridical norms and could not be confused with customary law , affirming themselves immediately and without expiry of time.⁸⁵ They often represented the first step toward a juridification of the same rules.⁸⁶

All the unwritten rules greatly contributed to the evolution of the Constitution. In particular, the «tacit changes» intervened on the document at least in a twofold way: they implemented/developed the written document and corrected eventual mistakes.

This is the case in which, through constitutional practice and interpretation, principles and rules, not explicitly considered by the constitution were set. These rules essentially derived from the long and uninterrupted practice and were based on the tacit agreement of constitutional bodies. A disavowal of these norms constituted, in fact, a systematic violation of the spirit of the constitution.

The main example is that of a primordial development of representative government in the form of parliamentary government. The Albertine Statute established the role of Deputies in only three articles: Art. 65—The King appoints and dismisses (removes) his Deputies; Art. 66—Deputies have no right to vote in Parliament; Art. 67—Deputies are responsible.

The letter of the Statute granted the King the absolute right of appointing the Cabinet; customary practice, instead, had established that the Prime Minister won the double confidence of the King and the Chamber of Deputies.⁸⁷ Italian scholars found the foundation of the rules concerning the representative government in customary law .⁸⁸

More often non-written rules, interpretations and practices intervened in the letter of the Statute in order to soften its rigour, favouring in such a way a better functioning of the constitutional system.

The most evident example was constituted by Art. 53 of the Albertine Statute which required an absolute majority of members for parliamentary meetings and decisions. The difficulty in reaching the legal number produced the development of the practice according to which senators and deputies who were absent for a just cause, bishops and public officials who were busy in the exercise of their own functions, were not counted for purpose of the decision.⁸⁹ Moreover, it was the same Cavour who, intervening against Deputy Moia, who deprecated certain parliamentary practices , recollected the distinction between decisions and discussions and highlighted how the practice was not contrary neither to the letter nor to the Spirit of the Statute.

7 National Unification by Constitutionalisation

The historical and legislative events which led to national Unification are well known.⁹⁰ The statute law of 25 April 1859 conferred, to the Sardinian Government for the duration of the war, all legislative and executive powers and the faculty of doing, under ministerial responsibility by way of simple royal decrees, all the acts necessary for the defence of the homeland.⁹¹ On the basis of such law, extraordinary magistratures were instituted in almost all the Italian Provinces and States which aspired to a union with the Sardinian State.⁹² A Lieutenant Decree of 11 June 1859 instituted a General Directorate at the Ministry of Foreign Affairs to which all the matters concerning the annexed Italian Provinces were conferred. With the exclusion of Lombardy for which the consent expressed through the 1848 popular consultation (infra § 4.1.) was deemed sufficient, in other Italian provinces between March and November 1860 plebiscites with voting rights granted to 21 year-old male citizens were carried out.⁹³ After the law of 3rd December 1860 the Government accepted the annexation of those Provinces of central and Southern Italy. The royal Decree of 17 December 1860 declared the annexation of the provinces of Naples into the Subalpine Constitutional Monarchy; the Royal Decree of 16 December the annexation of Sicily, the Royal Decrees of 17 December the annexation of the provinces of Marche and Umbria, by way of similar plebiscites the Royal Decree of 22 March annexed the provinces of Tuscany and the Royal Decree of 18 March the province of Emilia.

Historiography dedicated important pages to single moments or juridical institutions which consented political-institutional integration. Alongside studies on the customary institution of lieutenancies and on the activity of provisional governments, on plebiscites and on the law concerning full powers, scholars discussed, as well, if the Italian State was the prosecution of the Sardinian Kingdom or if it was a new State, the fruit of the reunion of the ancient kingdoms.⁹⁴ Here, however, we would like to observe the national Unification through a constitutional perspective. In other words, I will try to underline in which way constitutional forms were given to the dawning Kingdom of Italy. The constitutionalisation was realised by the recourse to three tools: the formula contained in the plebiscites , the granting of the Albertine Statute to all conquered territories and the parliamentarisation of the national cause.

The formula of the plebiscites was more or less the same: accession to the constitutional monarchy of King Victor Emmanuel II was required.⁹⁵ According to Alberto Mario Banti the consensus by the Plebiscites was not a “founding act” but an “confirming act” of the will of the Nation .⁹⁶ Plebiscites were a political act more than a juridical act: they were made in order to please certain trends and necessities which manifested themselves in the public conscience and for reasons of international politics. In them there was a generic reference to the constitutional monarchy which meant gathering the main forces of the nation around the Sovereign. The constitutional monarchy should represent Unity and should stop those substantial discourses which prevented working at a common project.⁹⁷ In opposition to those who saw the constitutional monarchy only as an initial step that anticipated the Republic or at least the convening of a constituent assembly, Carlo Boncompagni said:

Per l’Italia, il Re non è solamente colui che regge le sue sorti, e che la guida alla sua liberazione; egli simboleggia una grande istituzione destinata a proteggere i suoi destini futuri. Che se lo stare in fede della monarchia fu necessario finora, questa necessità divenne più stretta dappoiché l’unità nazionale fu posta in cima del nostro programma. La monarchia fu la unificatrice di tutte le grandi nazioni d’Europa: la unificazione fallì là dove mancò quel simbolo del diritto nazionale che è il Re.⁹⁸

National unification was realised without a constituent assembly in that the Albertine Statute was deemed sufficient. In the two-year period 1859–60 the Constitution of Charles Albert was published/promulgated in every province for mere needs of legitimisation of the ongoing historical process of unification . The Statute was again elevated to the role of political symbol (not legal) of the new State and devaluation of the letter of Constitution continued.⁹⁹ Fedele Lampertico (1833–1906) noted that:

La Costituzione dello Stato Sardo ha bastato, perché mediante il concorso del Re, del Senato e della Camera dei deputati, ossia senz’uopo di costituente venisse proclamato il Regno d’ Italia, e ne divenissero parte integrante i paesi d’Italia o soggetti già allo straniero o smembrati negli antichi Stati. Qui però l’atto costitutivo si è trovato immedesimato coll’atto stesso di unione, d’aggregazione, d’incorporazione nazionale. Il quale atto di unione ritrae origine e valore dai plebisciti, per cui venne a costituirsi l’unità d’ Italia.¹⁰⁰

According to Lampertico the Statute was the fundamental and irrevocable law because by way of the nation consent permitted to share the sovereignty between the King and the Parliament. In a key passage the author noted that the Constitution was not only the written text but Constitution was inside the public sentiment, the practice , the customs , the legislation and in the history of Risorgimento.¹⁰¹ In the same years, public opinion constantly asked to restore constitutional order within the framework of the Albertine Statute . La Gazzetta del popolo of 13 January 1860, with the explicative title of Give us back the Statute! (Restituiteci lo Statuto!), noted

In fatto di costituzione non si può e non si deve far credito, essenchè il semplice fatto di un credito costituiscono un debito verso la Costituzione, quindi un atto incostituzionale. Soggiungiamo che a noi non importa gran fatto che il Ministero si chiami Pietro o Paolo o che sia costituzionale in teoria, ciò che chiediamo che siano costituzionale in pratica.¹⁰²

Moreover, La Gazzetta del popolo of 12 August 1860 noted:

Lo Statuto nostro è buono, e possiamo dirlo anche migliore di quasi tutte le contemporanee costituzioni scritte. (…) Lo Statuto italiano (…) ha eziando agevolato il futuro ordinamento delle altre provincie d’Italia che aspettano la liberazione.¹⁰³

The newspaper L’Opinione pubblica focused on specific constitutional issues like for example the legitimacy of the law concerning full powers and on provisional governments.¹⁰⁴ Alongside the restoration of constitutional rules by way of a return to the Statute, a part of the public law doctrine hoped for the immediate summoning of the Parliament.¹⁰⁵ According to Mazzini and the Mazzinians the Parliament did not have any title for facing the issue of national integration.¹⁰⁶ Cavour , however, decided to face the situation at parliamentary level. On 2 October 1860 the Prime Minister presented a Bill with only one article to the Chamber in which he asked for the authorisation of the Government to proceed onto the annexations of new provinces through royal decrees.¹⁰⁷ Cavour admitted in front of the Parliament that during the annexation process of Tuscany and Emilia many unconstitutional acts had been carried out:

Il nuovo Ministero si affrettò di dar opera all’annessione; ma, siccome questa incontrava gravi ostacoli nella diplomazia, parve opera savia e prudente l’associare il Parlamento al suo compimento; ed egli è per ciò che quando i dittatori dell’Emilia e della Toscana promossero il plebiscito, il Governo del Re li invitò a promuovere immediatamente l’elezione dei deputati di quelle provincie, chiamandoli tutti insieme a sedere in quest’aula. Ma così facendo, o signori, io lo dichiaro altamente, noi ci siamo scostati dalla stretta legalità, noi abbiamo commesso un atto incostituzionale; noi non avevamo, a termini di rigoroso diritto, facoltà di invitare i deputati dell’Emilia e della Toscana a sedere in Parlamento per deliberare assieme ai rappresentanti delle antiche provincie (e tra queste annovero anche la Lombardia) intorno all’annessione delle nuove provincie.¹⁰⁸

In this speech, the Count underlined that under international pressure the annexation procedure was not properly carried out according to a legitimate procedure, since the act was authorised through an enlarged Parliament with representatives of new provinces. To the South of Italy the statesman, therefore, proposed an alternative solution. In the same report, he asked for a motion of confidence. Cavour noted that it was «more consistent with the spirit of our institutions» to legally proceed, that is making the electoral committees vote the annexations first and then summoning the Parliament.¹⁰⁹

After a long discussion, the Chambers approved the annexations. The opposition was limited to more advanced criticism of different procedure than in the past. The statute law was approved on 16 October 1860, but it was promulgated only on 3 December 1860 after that the plebiscites of the Southern provinces, of the Marche and Umbria were carried out. Then, the Parliament was dissolved on 28 December 1860. The results of the elections of 27 January substantially rewarded the Cavour politics. On 18 February 1861 the new parliamentary session was inaugurated with a solemn meeting where for the first time the new representatives of the new State filed in together. Some days later a Bill was presented by way of which Victor Emmanuel II assumed the title of King of Italy for himself and his descendants.

8 Epilogue

Constitutionalisation was not a moment, it was rather a continuous process which characterised Italian Unification . It was a question of a phenomenon which had the purpose of giving constitutional forms to the Nation . The parabola of this process remains an open question with non-defined features for many aspects: it had its origins in Piedmont-Savoy when the small State connected its own politics and institutional transformations to the national cause; it proceeded during the making up of the Kingdom of Italy and continued also after the Unification. This phenomenon consisted in making a “common” constitutional patrimony based on the idea that statute laws and institutions must agree with the Spirit of the Albertine Statute come to the surface, and in making sure that this spirit spread within all the social body. A good part of the results are not easily valuable if we do not want to get to the heart of the matter with judgements on its value which often position themselves around the incompleteness of the constitutional forms and the limits of the institutional results which characterise the Italian State.

The constitutionalisation of the Italian Unification had a written constitution at its core. The Albertine Statute was considered the main bond for the political-social dimension, a political necessity, but it did not rise to the role of a law higher than the other norms of public law (hierarchicalisation of norms) and a control of constitutionality was lacking.¹¹⁰ No judge had the faculty of pronouncing on the legitimacy of a statute law. The Court of Cassation, in a decision of 26th January 1871, was firm in holding that searching for the opposition of a norm to the Statute and to the rights of the citizens was a duty exclusively reserved to the Parliament and the Sovereign.¹¹¹ Such a reconstruction was corroborated by the theory of separation of powers, according to which it was not acceptable that the judicial power syndicated the act of another power. The guardian of the Constitution was solely and only the legislative power (so-called parliamentary syndicate).

Within this framework the term-concept Constitution referred both to the idea of a pactum which gave shape to the Nation and to the written document. De facto, the same normative dimension of the Constitution rested on the idea of a “perpetual constituent assembly”. Common features could be found in all the experiences that belong to the model of the so-called granted constitutions. That which makes the Italian experience a unique case as regards the Charte costitutionelle (1814 and 1830) or the Landständische Verfassung was the longevity of the constitution of Charles Albert . The Albertine Statute survived political and institutional changes without there being a formal change of juridical norms. Institutional mechanisms and dynamics generated constitutional forms which were diverse according to contingencies and spontaneous requests. In this context, jurists could affirm that the essence of the Constitution was the Spirit, not its letter and that the Constitution was something more than the written text.

9 Summary (Italian)

Il focus di questa indagine è la costituzionalizzazione intesa come processo di integrazione legale, entro la struttura dello Statuto Albertino, e meccanismo d’interpretazione e d’emendabilità (revisione) del testo costituzionale, che porterà ad un’unificazione nazionale senza un documento scritto quale atto di un potere costituente esercitato dal popolo. Si tratta di leggere lo Statuto Albertino attraverso la sua evoluzione, tenendo conto delle competizioni e delle contrapposizioni per mantenere in armonia le istituzioni con la società civile.

La promulgazione dello Statuto Albertino costituiva la prima tappa del lento e difficile processo di costituzionalizzazione fatto di progressi, ma anche di reazioni, battute di arresto. L’altra fase è quella della sperimentazione che portava ad un’evoluzione della lettera dello Statuto alla luce del contesto storico-sociale. La costituzionalizzazione dell’Unificazione nazionale è, pertanto, un fenomeno di lungo periodo, costituendo la cifra per leggere il National Building. Specificamente, lo Statuto Albertino era un punto di partenza più che un punto di arrivo. Dal momento in cui il sovrano concedeva la costituzione, ci si rendeva conto che l’atto normativo era di per sé insufficiente, lo Statuto Albertino era un atto che non poteva essere revocato, ma la costituzione per vivere doveva riposare sul consenso e l’opinione pubblica doveva credere in essa.

Nel preambolo lo Statuto Albertino è definito «legge fondamentale perpetua ed irrevocabile». È assai probabile che, nell’intenzione del sovrano l’espressione «legge fondamentale» evocasse le teorie sulle lois fondamentales proprio della monarchia assoluta francese. «Perpetua» stava a significare il giuramento (obbligo politico e giuridico) assunto dal Re, per sé e per i suoi successori, di non revocare in alcun modo la concessione costituzionale.

La parola «irrevocabile» era, invece, intensa nel significato di un patto tra Sovrano e Nazione. L’idea del patto rinviava anzitutto all’antica concezione che vedeva nelle leges fundamentales un contratto attraverso cui si regolavano i rapporti tra sovrani e assemblee parlamentari garantendo la successione al trono. Tale idea consentiva di fondare le origini dello Stato non sulla sovranità popolare ma sulla parità giuridica delle due parti contraenti.

Sebbene l’esperienza italiana non conoscesse il principio di supremazia della Costituzione, l’espressione “incostituzionale” non era sconosciuta sotto lo Statuto Albertino. Ad un esame delle fonti non è difficile rinvenire che durante le sessioni parlamentari gli oratori sollevavano questioni di incostituzionalità di leggi e regolamenti. Vi era una certa coincidenza tra il significato che assumeva il termine incostituzionale in seno al diritto pubblico inglese e l’espressione impiegata nella prassi costituzionale italiana, ove incostituzionale era genericamente inteso «ogni comportamento costituzionale scorretto».

In generale, la validità di una norma giuridica doveva rinvenirsi nella più generica conformità al sentire dell’opinione pubblica. Pertanto si faceva risultare incostituzionale ogni atto o fatto normativo discorde o contrario allo spirito della Costituzione. Fu Cavour che inaugurò questa forma di interpretazione dello Statuto Albertino. Ciò fu il più importante lascito dello statista alla teoria costituzionale del periodo liberale. A partire dal 1850 ogni atto normativo veniva vagliato alla luce della lettera ma soprattutto dello Spirito della Costituzione che consentiva di mantenere in costante armonia l’ordine legale con la pubblica opinione.

È cosa nota che la costituzione scritta era scarna e molte norme avevano il sapore di principi generali piuttosto che di norme giuridiche direttamente vincolanti. Di conseguenza, la vera partita si giocava sul piano della prassi e dell’interpretazione, sulla perenne difficoltà a ricondurre i principi in esso contenuti entro i confini del costituzionalismo moderno. Si trattava, in sostanza, di estrapolare dal testo della Costituzione limiti effettivi al potere monarchico ed enucleare regole che consentissero un reale sviluppo del principio parlamentare garantendo diritti e libertà fondamentali.

I giuristi parlavano in modo generico di interpretazione secondo lo spirito della Costituzione, modifiche, deroghe o abrogazione dello Statuto. Le modifiche alla lettera furono pochissime. L’attenzione deve però essere concentrata sulle c.d. «modifiche tacite», cioè sui cambiamenti al significato della costituzione senza che per questo si cambi il documento scritto. Le modifiche tacite intervenivano sul documento implementando, sviluppando la lettera dello Statuto e correggendo gli eventuali errori. L’interpretazione e la prassi costituivano i più importanti meccanismi di cambiamento costituzionale. In questo contesto si riconosceva un ruolo di primo piano alle norme non scritte.

In conclusione, la costituzionalizzazione avvenne attraverso il ricorso a tre strumenti: la formula contenuta nei plebisciti, l’estensione dello Statuto Albertino a tutti i territori conquistati e la parlamentarizzazione della causa nazionale. Essa non fu un momento ma un processo continuo che caratterizzò l’Unificazione italiana. Si è in presenza di un fenomeno che aveva per scopo dare forme costituzionali alla Nazione. La parabola di questo processo resta una questione aperta, per molti aspetti dai tratti non definiti: aveva origine nel Piemonte-Savoia quando il piccolo Stato legava la propria politica e le trasformazioni istituzionali alla causa nazionale, proseguiva durante la formazione del Regno d’Italia e perdurava anche dopo l’Unità. Questo fenomeno consisteva nel far emergere un patrimonio costituzionale “comune” fondato sull’idea che le leggi e le istituzioni debbano essere concordi con lo Spirito dello Statuto Albertino, fare in modo che questo spirito si diffondesse per tutto il corpo sociale. Buona parte dei risultati non sono facilmente valutabili se non si vuole entrare nel merito con giudizi di valore che spesso si attestano attorno all’incompiutezza delle forme costituzionali e sui limiti degli esiti istituzionali che caratterizzarono lo Stato italiano.

La costituzionalizzazione dell’Unificazione italiana aveva a fondamento lo Statuto Albertino che era considerato il principale collante della dimensione politico-sociale, una necessità politica, ma non assurgeva al ruolo di legge più alta rispetto alle altre norme di diritto pubblico. Mancava, inoltre, un controllo di costituzionalità. Nessun giudice aveva la facoltà di pronunciarsi sulla legittimità di una legge. In questo orizzonte è difficile poter dire quando il termine-concetto Costituzione rinviava alla tradizione delle leges fundamentales, all’idea di un ordine precostituito frutto di un pactum unionis e alla tradizione, e quando si rinviava al documento scritto. Per certi versi i due momenti tendono a coincidere e rendono l’esperienza italiana originale in quanto conciliava un costituzionalismo a base scritta con un costituzionalismo a base consuetudinaria. Restava di fatto che la stessa dimensione normativa della Costituzione poggiava sull’idea di una “costituente perpetua”. Lo Statuto Albertino era sopravvissuto a cambiamenti politici ed istituzionali senza che ci fosse un formale cambiamento delle norme giuridiche. Meccanismi e dinamiche istituzionali generavano forme costituzionali diverse a seconda delle contingenze e delle domande spontanee. In questo contesto, i giuristi potevano affermare che l’essenza della Costituzione fosse lo Spirito non la lettera e che la Costituzione fosse qualcosa di più del testo scritto.