Constitutional review in Italy and the democratization process. Some reflections on the liberal state, dictatorship, and the birth of the Republic

This essay examines the evolution of constitutional review in Italy from the late nineteenth century to the establishment of the Constitutional Court under the 1948 Constitution. Contrary to the widespread assumption that constitutional justice emerged only with the Republican Constitution, the study shows that reflections and practices relating to judicial scrutiny of legislation existed well before 1948, particularly during periods of political crisis and extensive use of emergency decree-laws. Through an analysis grounded in the theories of democracy developed by Robert Dahl and Luigi Ferrajoli, the essay highlights the relationship between constitutional review, the democratization process, and the transformation from a flexible constitutional system under the Albertine Statute to the rigid constitutional order of the post-war Republic. The paper explores key debates among Italian jurists on the limits of legislative power, the role of the Court of Cassation in reviewing decree-laws, and the tensions between formal and substantive legality. It also retraces the constitutional reflections during Fascism, the crisis of the liberal state, and the eventual choice to establish a Constitutional Court as a guarantee of rights and of the supremacy of the Constitution. The essay concludes by showing how constitutional review became central to consolidating Italy’s modern constitutional democracy and ensuring the effectiveness of fundamental rights