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Monday 10 May 2021

Free Thought The theory of the material Constitution!

The theory of the material Constitution!

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A law, defined as "extremely fascist" by the opponents of the regime, that of December 24, 1925, n.2263, replaced the term "Head of Government" with the previous one of "President of the Council of Ministers" to underline: a) the pre-eminence of the prime minister on other government members;

 b) the end of the Parliamentary State and the provision of a new responsibility for the entire executive power only towards the King.
The title was used by the Duchy of Fascism, Benito Mussolini, from 24 December 1925 to 25 July 1943 and by Marshal of Italy, general of the Army, Pietro Badoglio from 23 July 1943 to 8 June 1944.

The diction was not expressly abrogated by the Constitution of the Italian Republic which limited itself only to introducing the old diction, which preceded that desired by the Duce.
On the other hand, an explicit repeal was not even necessary, according to the theory of Constantine Mortati, a Christian Democrat politician, a university professor since the Mussolini era and a member of the Constituent Assembly (from the surname, which he defined as "of arabesque origins") .

In the opinion of the constitutionalist, it would have been the Constitution in the material sense, even as opposed to the formal one, to indicate the effective structure of power in a country.
In other words, the concrete and factual way, aimed at establishing the true seat and the real competence of the Authority, would have established the Italian political community, structuring itself in a substantial sense. Some substantial doubts had arisen for the prohibition of constitutional revision of the republican form and for the reorganization, in any form, of the dissolved fascist party; and this even if Mortati himself, in previous studies and in the exchange, in the XNUMXs, of opinions with Carl Schmitt, had considered this party a very important factor of material constitutional law.

The current Covid19 pandemic that sent so many Italians "very early to the Ogre", could have resurrected from the grave, giving their works to a new life, many illustrious deceased, including Mortati.
On the basis of the effective structure of power which in the days of the outbreak of the disease saw a Parliament pushed to the corner of the political ring and a President of the Council of Ministers in the center of the "square" and always in the act of issuing his measures called or with the acronym formula DPCM, as such removed from the examination of the representatives of the People in Parliament (now in full unemployment), or with the term "Protocol", used, indeed, only in diplomacy to certify the achievement of an international agreement, has substantially restored, in our material constitution, the title of "Head of Government".

The restoration, like any innovative fact, raises some questions.
Can we also say that the aforementioned Authority has materially expanded its powers to the point of establishing hierarchies among the rights of freedom governed by the formal Constitution?
Here's an example:
Many Italians, entrepreneurs, shopkeepers, artisans have learned that they have to wait a little longer to resume their work and production of goods or services (indispensable, more than necessary, as well as for the common national well-being, also to make ends meet and, in many, numerous cases, to "feed themselves") but who will soon be able to return to pray in the Churches and / or attend Masses officiated by ministers of worship. And this, in accordance with the priority that will be given, with a "protocol" by the "Head of Government", even if belated, to freedom of worship.

Rebus sic stantibus (that is, this being the case), it is entirely imaginary and imaginative to expect the advent of a material Constitution that will cancel, due to the sheepish servility of the Parliamentarians (and necessarily due to the absence of strong protests by the citizens house as in a sort of "house arrest") all the rights of freedom once enjoyed by the inhabitants of the Peninsula?

Final question: It will be enough, to console ourselves for the depressing effects of the nightmare we are experiencing (according to not a few poloitic observers, also for the ignorance of people to whom we would never have dreamed of entrusting the fate of our life against our consent) to quote and paraphrase freely "Il spero solitario" by Giacomo Leopardi to recite with him: If of illiberity ... the hated threshold avoid not impetro ... and the future day of the present day more boring and bleak that will seem ... of myself? Ouch I regret and often, but disconsolate turn back?

There are those who claim on social media that it is better to wake up in time and stop the nightmare. Nobody, however, says: how! 

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