La produzione della norma costituzionale ad opera dei giudici nel diritto comparato. Appunti per una ricostruzione

The contribution investigates forms and models of the production of constitutional norms in comparative law and moves from the premise that the specificity of this perspective invites to focus on the relationship between judicial review and the power of constitutional amendment. In the light of this, the pathways are illustrated which, in some legal systems, have led judges (and, in particular, constitutional and supreme courts) to indirectly produce constitutional norms in various ways, sometimes substituting themselves for constitutional amendment procedures, with regard, in particular: a) to the self-attribution of judicial review powers; b) to the affirmation of constitutionally unenumerated rights; c) to the determination of implicit limits to constitutional review (or to broaden the list of explicit ones); d) to the indirect activation of the power of constitutional review. The conclusion is that, contrary to what is traditionally believed, the reservation to the power of constitutional revision of the power to affect the text and the constitutional system is conditioned by assumptions of a historical and cultural nature rather than of strict logical-legal derivation, and that constitutional change never fully exhausts the tension between constituent power and constituted power.