Costituzionalizziamo l’emergenza?

di Giovanna De Minico

SOMMARIO: 1. Quadro di riferimento. – 2. Inquadramento della funzione emergenziale. – 3. Apertura dell’emergenza. – 4. Gestione. – 4.1. La sorte del nocciolo duro dei diritti. – 5. Chiusura. – 6. Conclusioni.

The Author reflects on whether and how to draw an emergency clause to be introduced into the constitutional text via art. 138. An emergency clause, neither indispensable nor useless, but appropriate to clarify uncertainties of interpretation, making use of the principles already inherent in the constitutional fabric.
This paper raises some issues: the identity of the Authority entitled to declare the emergency; the type of powers and the limits to the exceptional rules. Among the latter, particular importance is given to the essential core of the rights, unless we understand whether to define them once and for all and in absolute terms or per relationem to the antagonistic right and through the case law of the Constitutional Court.
The work offers a two-track view: on the one hand the hypothetical model of the emergency clause, on the other the concrete management of the Covid-19 pandemic. It remains to be hoped that, if this clause should ever be written, prudence and caution will be required in order to remain within the guidelines of the balance of power and the intangibility of the constitutional identity of the State. Otherwise, in order to avoid the current danger of emergency anarchy, a deep laceration of the Constitution would be caused through a lawful way. Which of the two damages would be the worst?