By: Professor Giuseppe Tucci
In the reading room of Harvard Law School, the visitor's
attention is often attracted to a photograph hanging on the central wall; it
shows a march of black people, made up of a multitude of men and women, and
leading it, next to a young woman, can be seen a man wearing a white raincoat,
whose appearance and determined attitude are striking. The caption tells us that the
march started out from the United States Courthouse of Birmingham, Alabama, in
1956, and that the man leading it was Thurgood Marshall. He was a complex
personality, first a lawyer and then Justice of the United States Supreme
Court, who, in the 20thCentury had a greater influence than anybody
else on relations between the different ethnic groups in the United States and
who fought against the various forms of segregation laid down in the laws of
the different States.
In the history of US constitutionalism, every justice of
the U.S. Supreme Court is remembered for having made some contribution to the
constitutional law of the United States. However, the human and institutional of Thurgood
Marshall is a unique one because he, as a militant jurist, made his greatest
contribution to the development of U.S. constitutional law even before becoming the first African-American justice of the Supreme Court.
Three years after graduating from the Howard Law School in Washington, D.C., in 1933, Marshall met his mentor, Charles
Hamilton Houston, a graduate of Harvard Law School and head of the legal office
of the National Association for the Advancement of Colored People(NAACP). The
NAACP was founded in 1909 by W.E.B. Du Bois, the first African-American to
receive a Ph.D. degree from Harvard University. He was a key figure in the
history of U.S. culture in the 20th Century and, as we shall see
later, protagonist in a matter completely different from that of Justice Marshall.
It
is worth mentioning, for a better understanding of events that would otherwise
be inexplicable, that the first African-American student to be elected
President of the Harvard Law Review was Barack Obama, now President of the
United States, whose writings and speeches, so different from the trite media
language of our current politicians, contain many subjects evoked by Thurgood
Marshall.
While working for the - NAACP
from 1936 to 1961, Marshall fought against the principles of racial segregation
and succeeded in transforming U.S. constitutional law. His triumph, after the
victories won with the Supreme
Court decisions that invalidated legal segregation in the fields of ownership
of property and transport, was Brown v. Board of Education, the 1954
decision that abolished legal segregation in public schools.
That decision invalidated the "separate but equal doctrine"
in state public schools, negating the constitutional justification drawn up by
the same Supreme Court fifty years earlier in Plessy v. Ferguson. However,
in U.S. constitutional history, Brown was much more than a decision but rather
a social, political and cultural event that became the symbol of the
possibilities and limitations of democracy in the U.S., and a landmark for the
organization of subsequent fights against segregation and inequality in
general.
Marshall
left the NAACP in 1961, when, during the Kennedy administration, he accepted an
appointment by new President John F. Kennedy as judge of the federal Court of
Appeals -in New
York. After he had worked in that court for four years, President Lyndon
Johnson appointed him Solicitor General of the United States, which required
him to argue cases for the United States government in the Supreme Court. Then,
in 1967, President Johnson appointed him Associate Justice of the U.S. Supreme
Court.
As
we shall see later, Marshall often thought of his experience as a lawyer
defending interests and values that transcended the particular aspects of a
specific case and involved issues of a general and universal nature that
related to the entire system of government and society.
As comparable Italian experiences teach us, if we want
to talk about contributions familiar to us as Italians, the "fight for
rights" calls for different strategies from the ones that can win when
strictly individual interests are being defended and requires a kind of lawyer
that is capable of playing a social role, in which the battle in court goes
hand in hand with pressing for legislative action.
This
experience is relevant for the current situation in our European countries,
where an irreversible transformation into multiethnic situations is taking
place, the management of which requires the law to take up an educational
function in order to combat irrational fears and urges of so-called civil
society, which sometimes lead to new forms of racism.
Marshall's
contribution as justice of the U.S. Supreme Court was very important,
especially during the earlier period of his tenure. This was because it was
only until 1972 that he could work with the progressive majority of the Court.
From that date on, since the majority of the Court appointees were
conservatives appointed by President Richard Nixon, his contributions were
practically reduced to numerous and significant dissenting opinions.
During his work, Marshall always paid attention to many
kinds of social discrimination and not just racial ones. This was further
confirmation that the mentality behind discrimination, whether political, trade
union, or related to religion or disability, -is
always the same. Therefore, even as a judge and as a justice, he fought firmly
for freedom of expression, for the rights of women, and for the right to
complete and conscious sexual liberty. At the same time he opposed the death
penalty, economic inequality and police brutality. This particular experience
is also of great relevance for Europeans since, in our current historic-social
situation, various forms of discrimination are playing a role and assuming a
completely new significance in a society where public opinion seems to be
easily influenced by power groups that find fertile ground in the widespread
feelings of insecurity related to the transformations caused by new mass
migration phenomena.Hence
the need to learn more about the juridical strategies of complex matters
relating to discrimination and inequality, such as the U.S. Civil Rights
Movement, of which Justice Marshall was one of the important protagonists,
though certainly not the only one.
Marshall's contributions are not academic in the strict
sense. They are thoughts that arose, in the early days, from the training
activities he carried out in the legal organization of which he was a part for
nearly thirty years and, later, from the experience he gained as a Supreme Court Justice. The historical and institutional situation he
lived in was unlike ours but the very fact that it differs from our individual
national experience and from the European experience of fundamental and/or
inviolable rights makes the comparison useful and relevant, particularly if we
take into account the new inequalities and new prejudices that the whole
heritage of basic rights in Italy and Europe now has to cope with.
During
the celebration of the bicentenary of the Constitution of the United States, which fell in 1987, Justice Marshall, who had sat on the Supreme Court for
twenty years, went against the tide with a contribution published in the Harvard
Law Review- in 1987 that certainly
deserves careful study.
Sustained by a keen sense of history and a thorough
knowledge of the specialized works devoted to the subject, including the
contributions of John Hope Franklin, Marshall rejected the position of some
people, taking advantage of the historic anniversary, arguing for a return to
the "original intent" of the Constitutional Convention in
interpreting the Constitution, (something like Sidney Sonnino's idea of
returning to the Albertine Statute), Marshall’s position was like that of more
progressive jurists, first and foremost his colleague and friend, William J. Brennan,
who considered that argument - too
restrictive. The attempt to restrict the Constitution to what might have been
the perspectives of the members of the Constitutional Convention under such
different historic and social conditions, Marshall described as “arrogance
disguised as humility.”
Based
on the significance of his experience and the dramatic history of the community
he belonged to and within which he continued to fight, Marshall refused to
celebrate the anniversary of the birth of the Constitution of the United States
and the system of government that the Constitutional Convention designed when
drafting it.On the contrary, Marshall recalled, that system of government and -
as we would say, using European language - that draft adopted by the Constitutional
Convention in the picturesque Independence Hallin Philadelphia, was terribly
inadequate right from the start and needed a number of amendments, a civil war
and terrible social unrest before it actually came to respect those freedoms
and those human rights that are known today as "Fundamental Rights", or "Inviolable Rights", to use the wording of
Article 2 of the Italian Constitution.
The famous "We the People"- introduction to the U.S. Constitutionof
1787, insisted Marshall, did not include women, who only got the vote 130 years
later in the United States - and only in 1945 in Italy, because of Fascism -
and did not include the black slaves because the maintenance of slavery was a
specific political compromise, accepted by the authors of the Constitution
themselves. In fact the southern states only accepted the requests by the states of
New England to recognize the power of Congress to regulate the entire area of
trade in exchange for the right of southern states to continue the institution
of slavery. And it was precisely the northern states that were able both to
profit from the actual slave trade and to organize trade in goods produced by
slave labor in the southern states. Even though the Declaration of
Independence of 1776 ("That all men are created equal, that they are
endowed by their Creator with certain inalienable rights, that among these are
life, liberty and the pursuit of Happiness") was inspired by
ethical-religious principles, those principles continued to act as an
"appeal to Heaven" even in U.S. civil society. Suffice it to think of
people like Antoine Bénézet (1713-1784) and Thomas Clarkson (1760-1846).
This tradition led to the abolition of legal trade in
slaves by the English law of 1807, which was also celebrated in Europe on the occasion of its
bicentenary in order to "wish away" new and similar phenomena of our
times. However, in the United States that law only led to the official prohibition of importing slaves in 1808 but not to the abolition of slavery.
Still in 1857, in the famous case of Dred Scott v.
Sandorf, the US Supreme Court, in Judge Taney's grounds for the
judgment, confirmed the choice of the Founding Fathers, specifying that the
African blacks were not to be considered as legal persons but only as the
object of the right of ownership and that, as such, they could be bought and
sold. Nobody could ever doubt the constitutional correctness of this opinion,
at least from the point of view of the strictest and most rigid kind of legal
formalism, although it was precisely such formalistic short-sightedness that
led to the war of secession, the American Civil War.
So there had to be a bloody civil war before the 13th amendment was adopted for the purpose of abolishing slavery, but not the actual
consequences of slavery. And even after the abolition of slavery, the 14th amendment was needed to provide a new basis for the demands for justice and
equality, guaranteeing the protection of the life, liberty and property of all persons against any deprival of such rights without due process of law and
guaranteeing equal protection of rights. Another century was still needed
before significant recognition of the rights of American blacks to equality in
the important sectors of school, work, and residence and in the field of political
rights was obtained. Progress has been dramatic and is destined to continue
uninterrupted.
The men that met in Philadelphia in 1787 to draft the
Constitution, concluded Marshall, could never have envisaged, and would never
have agreed to, the document drafted by them being interpreted by a Supreme
Court whose members included a woman and the descendant of an African slave.
Therefore the merit for this great change in the meaning
of "We the People" does not lie with the U.S. Founding
Fathers but with the people that refused to accept the traditional
interpretation of ideas like "Liberty", "Justice " and
"Equality " and that, on the contrary, fought to give those words a
broader meaning. What needed to be celebrated was therefore the bicentenary of
the Constitution as a "living document", which included the Bill of
Rightsand the other amendments made to protect individual freedom and
fundamental rights.
All things
considered, the concept of the text of the US Constitution as an ongoing
process and not as a formula that crystallized clearly defined values for once
and for all — a factor, as we shall see, not unlike Italian tradition and
common to all constituent processes — was expressed by Marshall with great
clarity, which took into account the dramatic history of the United States and,
in particular, of the community from which he came.
It is not possible, or even advisable, to mention all the
subjects dealt with in Justice Marshall's reflections. Suffice it to bear in
mind that the collection of his writings includes a first part, devoted to his
work as a lawyer in some of the most famous legal cases in which he played a
leading role; a second part, devoted to his scientific contributions and to his
thoughts as a lawyer; a third part, devoted to his writings as a judge; a
fourth part, devoted to his judicial opinions, very often dissenting
opinions; and a fifth part, devoted to his reminiscences, embodied in the
transcript of an interview given by Marshall in 1977 to Ed Erwin on behalf of
the Columbia Oral History Research Office.
In addition to the work already mentioned, only a few of
these works will be taken into consideration for the beginning of a comparison
with the Italian situation regarding fundamental or inviolable rights, both
within the field of our local experience and in the European situation with
which the Italian experience is now firmly linked.
In a talk given to the students and professors of the School of – Law -of Washington
University -in 1967, Marshall, still the Solicitor
General of the United States, dealt with the problem of the relations between
the law and the demand for equality, taking into account both the synergism
between the law and social networks and the promotion of reforms through the
law by means of existing legal instruments and the different roles the lawyer
plays in society.
First, Marshall gave a brief exegesis of the School
Segregation Cases, from Dred Scott to Brown, to remind his
listeners that the demand for equality not only required victories in court but
also legislative action, which in fact occurred with the Civil Rights Acts - of 1957, 1960 and 1964, and the Voting Rights
Act of 1965.A
right was often, Marshall added, the response to social changes but, as shown
by the case law examined by him, it could even alter the factors that act on
society because it could change matters for the better and could have an
educational function.- Lastly, concluded Marshall, the objectives
mentioned above could only be achieved if the role of the lawyers changed. They
were often looked on by the excluded minorities, including the poor, as part of
the oppressors in society. But who would represent those interests against the
strong elements? The solution was the organization of groups and the setting up
of an offer of legal services that enabled lawyers to be social reformers in
their daily practice.
Another contribution by Marshall, published in the New
York University Law Review - in 1969,
dealt with the organization of group work for pursuing the aims of justice. It
was a lecture given at the New York University School of Law and was preceded
by similar contributions by other Supreme Court justices, aimed at clarifying
the meaning of the Bill of Rightsand the 12th, 14th and 15th Amendments.
Marshall immediately explained that organized groups had
become necessary precisely in order to transform those great constitutional
pronouncements into social and economic progress for everybody, because
otherwise they would have remained mere expressions of ideals of the US society
- ideals that, unfortunately, had only rarely been achieved in the course of
the country's history.
Marshall put forward a different kind of demand for
organized justice from that usually made by US trade unions that were typically
aimed at satisfying only wage demands, because such justice needed to undertake
social responsibilities going far beyond the defense of specific interests,
since it was the lawyer that defended the civil rights "...of all men,
present and future.” This is a great problem that is arising in Italy and
Europe today, because the great tradition of legal services offered by the
historic mass organizations needs to reinvent itself in ways that can meet the
needs of the new outcasts, the immigrants.
Among
the many problems dealt with in the writings of Justice Marshall there are two
that should be mentioned, to give the truest possible picture of his
personality. Although these problems differ from each other they are both
relevant to the current experience that Italy, like the other countries of
Europe, is going through, having to deal with the fears arising from their
transformation into multiethnic societies and seeing the prejudices fuelled by
those fears spreading within their territories.
The first problem concerns the death penalty and is dealt
with in a speech by Marshall published in 1986 in the Columbia Law Review. Marshall
was always a consistent supporter of the abolition of the death penalty in the
United States, for reasons of principle and for technical reasons. When he was
a law student he assisted his teacher, Charles Hamiliton- Houston in preparing the defense of a man accused of
killing a white woman in
Virginia. He continued working on cases related to the application of the death
penalty during the entire period when he acted as Chief Counsel for the
National Association for the Advancement of Colored People (NAACP). He was therefore able to use his
experience, unique for a Supreme Court justice, to conduct his fight against a
legal principle that he considered contrary to the most basic human rights.
In 1972 the
Supreme Court ruled the death penalty to be unconstitutional. Marshall, like
his colleague Justice Brennan, made a significant contribution to that
position. The same Supreme Court changed its opinion four years later, with a
policy that was never accepted by neither Justice Marshall or Justice Brennan.
In a speech already mentioned several times, Marshall, who had been a Supreme
Court justice for twenty years, took note of a position that seemed no longer
open to change, and concentrated on two
paradoxes that could be found during trials resulting in the death sentence:
the fewer guarantees of the defendant's right of defense in those particular
trials and the excessive delay that often occurred in the review of such
sentences.
During his speech, and also in a subsequent contribution
in 1990, Marshall stressed the lack of preparation and inexperience of the lawyers
and the Courts involved in such trials, pointing out that, apart from
opposition to the death penalty, as long as it was practiced it was the duty of
judges, lawyers and public officials in general to guarantee the condemned man
at least the same quality of defense that was guaranteed to other defendants.
The death penalty is still the subject of debate in the
United States. Attitudes range from rejection of that institution on principle
to diversified positions reflected in the case law of the Supreme Court, which,
in spite of many dissenting opinions, continues to recognize the constitutionality
of that form of penalty. In
a case decided in April 2008, the Supreme Court recognized the full
constitutionality of the use of a lethal injection for death penalty
convictions by the United States government and by 36 states.
An important side issue in decisions about the death
penalty is a second debate on the legitimacy and the correctness of referring
to foreign law, international law and even comparative law by the Supreme Court
for justifying its decisions. As we shall explain in more detail later, this is an extremely
important problem for the future of fundamental rights and for the possibility
of achieving, through dialogue between Supreme Courts, a globalization of
rights that could regulate and correct the effects of economic globalization.
Another
of Justice Marshall's many contributions, which today is attracting the
attention of Italian and European observers, is his analysis of the dynamics of
the race riots. In 1943 Justice
Marshall made an important contribution and gave it a title that recalled the
terrible episodes of racial hatred being perpetrated in Europe.- Examining the dynamics of the start and
continuation of the bloody race riot in Detroit in June of that year, Marshall
recalled that the origin of the riot was, as always happens, the absurd
behavior of the local authorities and particularly of the police, who wanted to
apply the law in a completely unequal way, according to whether their action
was against white or colored citizens. It is no coincidence that the reference
to the famous principle that is engraved on the pediment of the United States
Supreme Court (Equal Justice under Law), is the title of the first contribution
of the collection of his writings and is the leitmotif of all the strategy he
followed, starting in the early forties.
As already mentioned more than once, the historical and
institutional situation that Justice Marshall lived in was very different from
ours, but it is just that difference, whether from our individual national
experience or from the whole European experience in the field of fundamental
rights, that makes the comparison extremely useful and relevant, particularly
if we take into account the new inequalities and new prejudices that are
opposing the whole heritage of fundamental and/or inviolable rights in Italy
and in Europe.
However,
this comparison with the Italian experience and the European situation with
regard to fundamental rights needs further clarification.
Inevitably,
in fact, due to the characteristics of our specific historic experience on this
subject, we have to take into account both the subject of the "... cultural, religious and humanistic
inheritance of Europe, from which the universal values of the human person,
freedom, democracy, equality and the rule of law have developed,” as specified
in the Preamble to the Treaty of Lisbon on the European Union, and the
different and more specific question of the protection of Fundamental Rights
within each State. This was done in the post-Second World War period by means
of rigid constitutions that the states themselves, especially those like Italy and Germany, which had known the barbarisms
of Nazi-Fascism, adopted through the work of freely elected constituent
assemblies.
With regard to the European cultural, religious and humanistic heritage
from which the universal values of the inviolable and inalienable rights of the
human person developed, the most immediate standards of comparison with the
problems put forward in the thoughts of Justice Marshall is, in 18th Century European Enlightenment, the Neapolitans school of natural law and the
historical and philosophical foundation of the Rights of Man, to which it gave
rise.-This developed particularly through
the work of Gaetano Filangieri , who belonged to that school and his work The
Science of Legislation, published in Naples, in six volumes, between 1780
and 1791.
Referring the reader to the specialist works on the
history of juridical thought for further study, we would like to stress here
that it was precisely by referring to the exemplary nature of the United States
Revolution that Filangieri, on the one hand, described the central role
of the rights of man as the foundation justifying the entire structure of the
state, anticipating the most advanced forms of modern constitutionalism and, on
the other, mercilessly criticized the legitimization of slavery, in tones
similar to those used by Justice Marshall on the occasion of the bicentenary of
the U.S. Constitution.
With regard to the first of the profiles discussed above,
it should be remembered that - Filangieri
and the School to which he belonged held that fundamental rights were
recognized and guaranteed, not created, by the law; that if they were denied
the whole structure of the State was delegitimized; that their exercise could
not be suspended for any reason of public utility; and that their recognition
was the true guiding star, not just in relations between individuals but in
relations between individuals and States and in mutual relations between
States.
|
|
It can be seen that the great problems that 21st century
jurists, and not just theoretical jurists, have to deal with as a matter of
routine, and to which they try, in concrete judicial practice, to give the same
replies developed by the 18th Century natural law theory in the name of the
authority of reason alone, are formulated in terms of legal rationalism.
If, for Filangieri, there was no question about the
central importance of fundamental rights in justifying the whole juridical
experience, there is also, to return to the reasons impassionedly put forward
by Justice Marshall, no question about their universal nature, in the sense
that either fundamental rights are guaranteed and recognized for all, and
therefore practiced as universal rights without any exceptions, or they are
reduced to mere cynical formulas, the only purpose of which is to disguise the
baser interests of social groups or of privileged individuals.
"Free citizens of an independent America” warned - Filangieri, “you are too virtuous and
enlightened to ignore the fact that by conquering the right to govern
yourselves you have, in the eyes of the universe, taken on the duty of being
wiser, more moderate and happier than all other peoples. At the tribunal of
humanity you will account for all the sophisms that your errors could produce
against liberty. Guard yourselves therefore against embarrassing its defenders
and making its enemies talk.” And then, with specific reference to slavery:
"... while humanity everywhere is calling for its rights, the European
part of America is full of slaves; not only is the legislation silent about
this abuse but it protects this infamous commerce; and through this vast area
of this vast continent it is possible to find only one small region of heroes
who wanted to escape the pangs of this injustice and the scandal of posterity.
Only Pennsylvania has no slaves.”
When read in the light of the experience of the
twenty-first century and so, of course, with hindsight, the reflections on
slavery of Justice Marshall and of Filangieri give us two serious lessons that
explain the practical reasons why it is so important to reflect on two authors
that are separated in time - the Neapolitan nobleman and the descendant of
American slaves - but who share those cultural and humanistic heritages that
form the basis for the universal values of the inviolable and inalienable
Rights of Man.
The first lesson
is that the universal and binding nature of the Rights of Man cannot be
bartered for any so-called practical advantage, even for reasons of public
interest, such as safety, as shown by contemporary experiences, particularly
for Italy, which are still in course and to which we shall get back later.
The second lesson takes a long-term, but no less
important, view. No revolutionary break creates the Promised Land, even when
crowned with success and, as in the case of the United States, sanctioned by a
Constitution that, thanks to its exemplary nature, has become an important
watershed. Great constitutional experiences are valid not merely and not so
much because of the choices contained in the document that puts them into
effect, which are the result of inevitable political and institutional
compromises, but because of the processes that they succeed in setting in
motion.
This
is a problem that needs focus in order to better understand Justice Marshall's
positions. It is also a problem that should be considered in relation to
another revolution, not in the 18th but in the 20th century: the Russian
revolution of 1917, which was not inspired by the doctrine of inviolable or
fundamental rights but so-called class criticism, taken to extremes by the
leader of that revolutionary movement. It
was experienced in Italy and also in the United States by personalities like
W.E.B. Du Bois, as the exemplary event of a new epoch in the name of the fight
against imperialism.
If we move from the field of European cultural, religious
and humanistic heritage and go on to consider how that heritage influenced the
drafting of constitutions in Europe after the Second World War — especially
Germany and Italy — the disparity with the U.S. constitutional experience is so
obvious as to make any comparison almost futile unless we consider each
constitution as a historical document and not as a living document, to use the
expression so dear to Justice Marshall.
In fact, the United States Constitution aimed at achieving
the ideals typical of 18th Century universalism even though, as
discussed earlier, it carried in its bosom the poisoned fruit of the
legitimization of slavery in a country that European Enlightenment thinkers,
and especially Filangieri, regarded as the land of the free men.
To quote a concrete example that could make comparison easier, the
Italian Constitution is based prominently on liberal-socialist thinking, for
which the centrality of freedom of the individual does not just mean the
protection and inviolability of an individual space, but also social freedom
and thus a commitment to participation in collective life. It also reflects the influence
of J. Maritain and of French Catholic thinking, which emphasizes a democracy that takes the
"human being", no longer just the individual, as the basis and
purpose of the entire legal system, recognizing for the person a multiplicity
of civil and political rights and of those new social rights needed for
guaranteeing full fulfillment of the person, whether individually or as part of
the social formations where his or her personality unfolds.
In the drafting
of Article 2 of the Italian Constitution, particularly in its final and current
version, a dominant role was played by the democratic Catholic tradition, in
particular by Giuseppe Dossetti, Giorgio La Pira - and
Aldo Moro. It was Pira and Dossetti who drafted the first report on the article
in question, which later became the basis for an agreement with the other
members present at the Constituent Assembly, while Moro made some of the most
important speeches during the long debate that led to the final drafting of the
provision in question with characteristics intended to have a significant
influence on the subsequent development of the Italian system.
The socialist element participated in the debate, with
another Introduction by Lelio Basso, which contributed to the autonomous
Article 3 and the particular regulation of the principle of equality laid down
in that provision. This regulation was always integrated, even in the
subsequent evolutionary interpretation given to the provision, with the
preceding Article 2 and with the basic democratic choice contained in Article
1, with which the fundamental principles start. - More
than 60 years after the Italian constitutional text came into force it can
certainly be said that the interpretation of the three provisions has developed
jointly and that they have integrated in turn with each other in their concrete
applications.
Finally, with Article 2, needs to be considered together
with the following Article 3 and the preceding Article 1. The Assembly members
left to the future the regulation of the "inviolable" rights,
characterized by a strong social connection. This was done in such a way that
for the “ Person” (Persona) in the Italian Constitution for whom the
inviolable rights of man are guaranteed and recognized, both as an individual
and in the social formations where his or her personality unfolds, there is no
longer a separation between rights and duties, since that separation has been
superseded by the unbreakable bond between inviolable rights and the principle
of solidarity.
If, aside from the text of the separate provisions, we
take the dimension of the constitutional text to be a "living document
" and therefore a constituent process, even in Italy, 60 years after the
entry into force of the Constitution, we can consider that the evolutionary interpretation
and integration of Article 2 has been positive, particularly considering the
great novelties that the reference to that provision has witnessed in very
recent times.
It should be
pointed out that Article 1 of the Italian Constitution constitutes one of
fundamental principles, the drafters of which, particularly the large political
parties participating in the Assembly, conceived as a "living document,”
that is to say as a draft intended to regulate a process of development of the
Italian legal system in the future. This awareness can clearly be seen
during the preparatory work of the Constituent Assembly and has become the best
key for interpreting the role of the provision in question.
When the introductory debate on the draft Constitution
drawn up by the 75 member Commission started
in the Constituent Assembly, one of the most authoritative jurists
participating in that debate, Piero Calamandrei, proposed that the aspirations planned for implementation in the future, and the
social rights that could not be implemented in the particular legal situation
of the time, should be included in a preamble. Otherwise, the Constitution
would become something like the Labor Charter of the corporative fascist period,
which, as we know, was not a law, but merely a directive for future laws. This
proposal was rejected because, as other qualified representatives noted in
their objections, constitutional provisions, even when they constituted a
proposal, were always and for all purposes legal regulations since they imposed
limitations on the legislators of the future.
The draft the members of the Constituent Assembly worked
on has succeeded in handling the social tensions of our post-Second World
War period. All the inviolable rights confirmed in Article
2, particularly those specifically confirmed in other provisions of the
Constitution, immediately became not mere statements of principles but rules
required to regulate, even before the late entry into force of the
Constitutional Court,
social conflicts and even fights for cultural liberties in the name of a
legality superior to that of ordinary laws. This
result, due to logical political choices by the Italian political parties, was
decisive, and caused inviolable rights to take root in broad social layers.
This made it feasible for the provision to play the central role it plays today
in our juridical experience.
What makes an examination of Justice Marshall’s ideas,
considering his legal experience, suggestive and important today is the great
transformation that is taking place in Italy. This transformation poses new
problems for our legal system and, first and foremost, for our constitutional
setup. Reference to the work of Justice Marshall is certainly relevant for
solving these problems.
Presently - and this is a positive phenomenon - citizenship is no longer the formal requirement of a merely bureaucratic relationship with
the state to which one belongs but is a quality of that person who carries a
series of rights and duties, regardless of the territorial situation in which
he or she is. - An attempt is being made - or
should be made - to implement the national politics beyond the Nation.
The participants in our Constituent Assembly just managed to glimpse this in
very general terms when, in the Constitution, they confirmed that Italy
"complies with the generally recognized provisions of international
law" (Article 10); and, as stated in Article 11, "... consents, under
conditions of equality with the other States, to the limitations of sovereignty
necessary for a system that ensures peace - and
justice among nations ". Also it was laid down in the amended Article 117 that "legislative power
is exercised by the State and by the Regions in compliance with the
Constitution,” as well as with the restrictions arising from the community
system and from international obligations. - The
process of internationalization, inevitably leads to the construction of a
common legal wealth for humanity.
The mobility of
capital beyond the borders of individual national states, to mention just one
of the causes of the complex phenomenon, makes a decisive contribution to
reducing the labor force to the level of mere goods, making recognition of
those inviolable rights of the person of the worker, on which modern
constitutional democracies are founded, meaningless.
As
recently pointed out, an ancient question that seemed to belong merely to
history is becoming topical today: that is to say, whether work can be
understood merely as goods, as a purely market matter, confining the constitutional
answer entrusted to Article 36 of the Italian Constitution to the past.
On
the other hand, the great migrations of people, now characteristic of our
times, are ending up by creating similar and often more dramatic results for
large masses of people, for whom inviolable rights remain a mere utopia.This has given rise to forms of discrimination and
to the emergence of practices of slavery. This is so unknown to our legal
experience that it is very useful to make a comparison with the replies that Justice
Marshall gave to those same problems in a different legal situation.
In
our times, the defense of inviolable rights has to cope with a very topical
phenomenon, the traffic in human beings, which, particularly for traffic in
women and children, has now taken on planetary dimensions because it is
facilitated by the spread of new technologies as well as by the ease and speed
of traveling. It is very widespread in certain Italian regions, including
Puglia, and also Calabria, and is a worse substitute for the traditional
exploitation of farm laborers, protagonists in centuries-old struggles in favor
of the dignity of the person, which inspired many articles of the Italian
Constitution, in particular Articles 35 and those following. Traffic in human
beings is, therefore, another modern form of slavery, in addition to the many
kinds known to history, and it seems to nullify, in the name of the inflexible
logic of the labor market, the multitude of inviolable rights recognized by the
Italian constitutional text and by several international treaties.
The phenomenon incredibly magnifies the illegal
gang-master system (known as "caporalato"), which had already
reappeared in the 1960s in relation to modern forms of farm labor, particularly
female, in the Apulian countryside and the South in general and has now reached
proportions unthinkable in those times.
In the abovementioned perspective, Article 2 of the
Italian Constitution, in view of its universally recognized open structure,
must be integrated, even before with articles 4 and 5 of the Universal
Declaration of the Rights of Man of 1948, with the prohibition of slavery and
of forced labor as contained in Article 4 of the European Convention on the
Rights of Man of 1950 and with Article 5 of the Charter of Fundamental Rights,
included in Title I dedicated to human dignity. The Charter of Fundamental
Rights, referred to in Article 6 of the Treaty of Lisbon, recognizes the same
values. That last provision, in particular, prohibits traffic in human beings
in the name of the inviolability of human dignity, which therefore constitutes
the very nucleus of national constitutions and of international instruments on
human rights that bind the member states. The first of these is the provisions
of the Warsaw Convention of the Council of Europe condemning traffic in human
beings.
The perspective assumed by the aforementioned
supranational regulations, regardless of the direct effect of our legal
experience, whether at the level of compliant interpretation or with regard to
the assessment of the constitutionality of the applicable provisions, has had a
direct effect on the reform of our basic legislation, particularly criminal
law. In fact, Law 228, of August 11, 2003, regarding measures against traffic
in persons changed, among other things, both Article 600 of the Italian
Criminal Code, on the subject of the reduction to or maintenance in slavery or
in servitude, and the following Articles 601, on the subject of traffic in
persons, and 602, on the subject of buying and selling slaves.
With specific reference to Article 600 of the Italian
Criminal Code, the reform of 2003 noticeably shifted the centre of regulatory
protection, setting it on the centrality of the dignity of the person and
radically altering the sense and function of the regulation in question. Before
the reform the crime could be committed by any person, but not in Italy,
deeming that the only States taken into consideration were ones where slavery -
or other similar situations - existed as conditions of law, today the active
subject of the crime is recognized to be the person that, in Italy, exercises
powers corresponding to the right of property.
Furthermore, with reference to the objective element of
the crime, two different conducts are punished: reduction to or maintenance in
slavery, as well as reduction to or maintenance in a state of continuous
subjection for the purposes of exploitation. The provisions of the Italian Criminal Code
referred to above highlight the complete novelty of the phenomenon in question
compared to the problems our tradition has always dealt with.
The
"worker" referred to in our system (see Section 2087 of the Italian
Civil Code) and, in parallel, in the Italian Constitution (see Article 3),
assumes the notion of abstract human work, which instead is totally different
from the figure of the slave in the true sense.
In
the case of slavery, the work does not come on the market in the form of goods
saleable by "free" workers. The subjection of the slave to the master
is not based on a contractual relationship but has an extra-economic origin and
is not created by the organization of his or her activity as conducted in the
workplace where it is performed, but has causes external to the production
process in which he or she is inserted as a mere object.< This feature
of the phenomenon is today a substantial part of the very rich case law, which
is a unique observatory for understanding its extent and nature.
In a very significant case, the crime of reduction to or
maintenance in slavery, referred to in Article 600 of the Italian Criminal
Code, is identified in the behavior of a person who, regarding him or her as a
thing that can be the object of trade, purchases a minor from the parents by
paying a price and continues to
use him or her, as the parents already did, for committing thefts, telling him
or her the answers to give to the police in case of arrest and warning him or
her not to reveal the sale to any person.
Article
600 of the Italian represents a crime with multiple offences, consisting either
of the behavior of whoever exercises over a person powers corresponding to
those of an owner, or the behavior of whoever reduces to or maintains a person
in a continuous state of subjection, forcing him or her to work, or perform
sexual services, or to beg or, in any case, to perform services that involve
his or her exploitation.
Finally, the crime of reduction to slavery, provided by
Article 600 of the Italian Criminal Code, presumes a relationship of
intentional dependence between the conduct of reduction to and maintenance of a
person in a state of continuous subjection and that consisting of forcing the
person to perform specific services or in any case that involve exploitation. Therefore the objective of the
exploitation distinguishes the offence from any other form of restraint of
personal liberty.
The frequent use made by Italian case law of the type of
offence at issue that, at first glance, seems to recall social relationships of
long ago, is striking because of the variety of cases it applies to and the
specific thinking characterizing it, quite different from the traditional types
of offence in the Italian system.
In a recent judgment by the Italian Appeals Court,
slavery or servitude is identified as continuous subjection and in
subordination to the will and orders of others (hierarchical superior,
employer, head of family, husband or other person. The illegally required "services"- work
or sexual or begging - that involve exploitation are not a further element in
the conduct of reduction to slavery, but they frame and define the state of
subjection). It is not a question of a simple, merely passive condition of
deprival of freedom but also involves one who is compelled to carry out various
activities that take the concrete form of exploitation of his or her person and
not merely of his or her abstract working activities.
Lastly,
it must be remembered that, in the particular punishment system set out in
Legislative Decree Number 231 of June 8, 2001, on the subject of the so-called
"administrative" responsibility of corporate bodies, companies and
associations, reduction to slavery is provided in Article 25 as one of
the cases considered in relation to a monetary penalty.
f we consider
the set of fundamental and/or inviolable rights provided by the Italian
Constitution, as it is now supplemented by supranational sources, there exists
within it provisions for the protection of rights that are not merely social
but also racial, and the new forms of real, true slavery, completely unknown to
the Italian legal experience until now.
There
is thus needed a different approach from that process of transformation, which,
as Justice Marshall recalled, the US Constitution had to undergo in order to
concretely affirm the fundamental laws abstractly provided for in it, in view
of the existence of slavery and the practice of various kinds of
discrimination, including racial. Notwithstanding
this difference, the strategies practiced by Justice Marshall, and clearly
described in his writings, are extremely relevant for a situation that, like
the Italian one, that requires dealing with types of inequality and of
discrimination that were unknown to it until recently.
Faced
with the undeniable increase in social forms of inequality and discrimination,
and even the new forms of real slavery, we need, as Justice Marshall teaches,
to remember that the mentality behind the various kinds of discrimination, even
though different in contents and origin, is always the same and therefore the
related legal remedies and, even before that, the social strategies to be
adopted, for wiping them out, need to be considered as a single whole.
These
strategies are totally different from the kind that can be successful in
protecting strictly individual interests and, as Justice Marshall often
stressed, call for the kind of lawyer who is capable of playing a social role,
because his or her fights in court must also be combined with political action
and even with possible demands for adequate legislative measures. This kind of "lawyer" is a qualified
legal operator who can only exist within a strong association.
In the United States situation that particular association has been the National
Association for the Advancement of Colored People(NAACP), the
legal office of which was, as already mentioned, managed by Thurgood Marshall
for more than 25 years, from 1936 to 1961. It is also the association that, as
has already been mentioned, has as one of its founding members, W.E.B. Du Bois,
the first African-American to receive a Ph.D. from Harvard University.
The work of Du Bois, previously referred to, is
worthy of special attention, not only for the great importance of his vast and
multiform scientific and artistic productions, but also because it highlights
the complex composition of the NAACP, naturally quite different from the
kind of associations known to us but which can in a certain sense be compared
to it.
After having contributed to its foundation, Du Bois was,
for several decades, the official most involved in the work of the Association
but, after a long period of dedication, during which he directed the fights and
claims of African-Americans relating to rights and of citizenship in the
atmosphere of the Cold War and of anti-imperialist criticism of the United States,
he gradually moved away from it and left the United States, after he had joined
the Communist Party, and died at the age of ninety in 1961, a citizen of Ghana
in Nkrumah's time. Nevertheless,
the Association, which he had helped to found,
never expelled him.
Just
a short time before his tragic death, Martin Luther King, introducing the
collection of the writings and speeches of Du Bois, pointed out that "Dr.
Du Bois was a genius and chose to be a communist. Our irrational and obsessive
anticommunism has led us into too many quagmires to be retained as if it were a
mode of scientific thinking”. This shows the internal dialectics of an
associative movement that succeeded in leading such a complex and difficult
struggle.
In our European situation, particularly the Italian one, a similar role
to the one recalled above was played by the political parties and trade unions
during their best periods of strong social integration, when they succeeded in
putting an organized network for the defense of the workers into operation,
very like the social lawyers that Justice Marshall talked about.
Presently in the immigration sector, the efforts of
trade-union organizations are important, even if they are not enough to involve
the entire organizational system, while the political crisis means that the
commitment of the parties to dealing in terms of collective commitment with
problems that are so vital for our entire social life is only sporadic and is
left to the initiative of individual officials. In the absence of generalized
social participation, uprisings by the excluded, so carefully studied by
Justice Marshall, unfortunately become inevitable and new forms of racism are
increasingly common all over Europe.
|
International
Judicial Monitor