Adventures in Italian Jurisdiction
Or, top lawyers take a stand at the Constitutional Court (and will again)
Cari amici,
Tuesday, June 24, 2025, is a date that will go down in history. If you’re the least bit interested in what’s going on with Italian citizenship law—specifically with the challenges posed to the 160-year-old tradition of jus sanguinis, or citizenship by descent (“by blood”)—this post is for you. And so is this one.
What happened on June 24 was this: teams of lawyers defended four court cases brought to the Constitutional Court by referring judges who questioned whether jus sanguinis (JS) as it has existed in Italy for 160 years is unconstitutional because it has no generational limits. Which means that whether you seek recognition (not acquisition! this is very important!)1 as an Italian citizen through a parent, grandparent, or great-grandparent has never mattered, only that the bloodline has remained unbroken, as happens when a parent naturalizes before their child is born. (There are lots of nuances to how a line can be broken, which we’re going to ignore today.)
The cases
The plaintiffs in these cases are all South American, and all are claiming Italian citizenship via a female ancestor born before 1948, making them what we commonly call “1948 cases” (not pertinent to this discussion). Italian citizenship attorney Michele Vitale summarized the issues in question as follows.
“The referring judges argued that granting citizenship to individuals across unlimited generations, many of whom lack any tangible or lived connection to Italy,2 transforms the citizenry into what they termed ‘empty boxes’ (scatole vuote). This, they contended, dilutes the democratic body politic. The argument was twofold:
Lack of an ‘Effective Link’: The absence of any requirement for a demonstrable connection—be it linguistic, cultural, or residential—was presented as a critical flaw. Citizenship, in this view, becomes a hollow right, detached from the community that participates in the nation’s civic life.
The “Quantitative” Threat: The sheer number of potential applicants, stemming from Italy’s great waves of emigration, was framed as a threat to democratic stability. The judges raised concerns about the impact on the electorate, particularly in referendums and the election of overseas representatives, suggesting that a large, disconnected body of citizens could interfere with the exercise of sovereignty by the resident population.”
Vitale cited other concerns, which you can read at the linked site above.
The Constitutional Court
In cases like this, where an existing law’s constitutionality is called into question, the question can go to only one judicial body: the Constitutional Court (CC), which consists of 15 judges (justices, full professors of law, or lawyers with at least 20 years’ experience). Five are appointed by the President of Italy, five are elected by Parliament, and five are elected by the high courts. According to the CC website, they “carry out oversight functions that are essential to ensuring that laws comply with the Constitution and resolving jurisdictional disputes between branches of state, between the State and Regions and among Regions. The Italian Constitutional Court engages in dialogue with international courts, the Court of Justice of the European Union and the European Court of Human Rights.”
The Court has other functions we won’t go into here; suffice it to say it has ruled on such important rights issues as abortion, equality between spouses, the right to strike, and women’s access to state and judiciary leadership roles.
Enter Legge 74/2025
With the CC hearing date of June 24 on the books well in advance, the Italian government made a surprise move, claiming the urgency of national security (balderdash!) compelled them to basically draft a new citizenship law overnight. The decree-law, presented on March 27, 2025, went into effect as of midnight: March 28, 2025. An amended version was signed into law (74/2025) on May 23, 2025.
The following is a translated transcription of the law itself. In essence, it defines as NOT Italian (meaning ineligible to claim citizenship via JS, or descent)
“someone who was born abroad, even before the date of enactment of this article, and who holds another nationality, has never acquired Italian citizenship, unless one of the following conditions applies:
a) The person's citizenship status is recognized, in accordance with the applicable law as of March 27, 2025, following a request, accompanied by the necessary documentation, submitted to the competent consular office or mayor no later than 23:59, Rome time, on the same date;3
b) The person's citizenship status is judicially verified, in accordance with the applicable law as of March 27, 2025, following a judicial request submitted no later than 23:59, Rome time, on the same date;
c) A parent or adoptive parent who is a citizen was born in Italy;4
d) A parent or adoptive parent who is a citizen has been a resident in Italy for at least two continuous years before the child's birth or adoption;
e) A first-degree ascendant of the parents or adoptive parents who is a citizen was born in Italy.”
There are also new rules about how minors can become recognized, plus a planned work permit visa program for those of Italian descent who cannot go through the JS process.
Setting the stage at the CC
In a very telling decision, the State attorney present at the hearing said, “we do not intend to defend the admissibility of the intervention with an oral argument.” Please explain to me how something that’s supposedly a matter of national security isn’t worth defending in court.
CC Judge Emanuela Navarretta led off with a summary of the cases brought before the court, then six of the defending attorneys made their cases. Things got very interesting from the get-go, when the first attorney to speak, Avv. Marco Mellone, immediately broadened the scope of the hearing beyond the four generational-limits cases. He, and the other attorneys as well, made it clear that what was really in play was the constitutionality—or, more accurately, the unconstitutionality—of Legge 74/2025 itself. Each lawyer made arguments that, combined, reveal the actual and potential harm of the new law on potentially millions of people.
What follows are excerpts, taken from a translated transcript published by Avv. Vitale, of key points made during the hearing. I’ve made small edits (in brackets) for length and/or clarity; if you prefer, you can read each lawyer’s arguments in full in Vitale’s post, linked to above. (Note: the abbreviation “Avv.” means avvocato, or attorney.)
74/2025 is a political move that tries to rewrite Italian history
Avv. Mellone’s first major point was that 74/2025 tries to rewrite history to suit a political agenda. “The world of Italian citizenship, jus sanguinis, in the last year, more or less, has been the subject of a somehow transversal movement aimed at disavowing what has been the history of Italy and the history of this legislation. Before last year […] nobody in Italy talked about jus sanguinis, or am I wrong? It was not in the legal chronicles or in public opinion […]. In the last year, referral orders [have come] from judges who, by the way, until the day before had always recognized citizenship in all judicial claims without problems. […] Everything has happened in the last year. Why? It is not a coincidence.”
Arguing that jus sanguinis has always been constitutional, Mellone said “[…] I ask the referring judges, […] in Article 1 [of the Constitution], when the constituent assembly talks about ‘people’—but to which people could it be referring? […T]he Italian people were not born in ’46 or ’47, the Italian people were born in 1861, and in that people there was already an Italy inside the Italian territory and an Italy outside the Italian territory. We are a diasporic people since always, it’s just that […] we want to tear this page of Italy’s history from our memory.”
Avv. Antonio Cattaneo also brought up the historically unquestioned constitutionality of jus sanguinis, saying that “[…] the Supreme Court has not only never questioned in the slightest the constitutionality of the principle of jus sanguinis, but has clarified that it is intimately linked to Italian history and to the specific, constant, and centenary choice of the Italian legislator to maintain through the blood tie the relationship between Italy and its children wherever they were born and lived.”
74/2025’s retroactivity and broad scope affect millions
According to the new law, Avv. Mellone said, “it is not enough that you were born, that you were born from an Italian citizen, it is also necessary that you were born in Italy or that you have a parent or a grandparent who has exclusively Italian blood. […] And it said it with retroactive application; that is, it applies to everyone. […] With all due respect, we are not talking about the right of use of condominium stairs, we are talking about the status civitatis [citizenship status] of more than 90 percent of Italian citizens, including all of us.”
Again Avv. Cattaneo amplified Mellone’s point, explaining that of the roughly 6 million Italian citizens who reside abroad, 50 percent “were born in Italy, who then expatriated […]. More precisely, in the last 10 years, over 100,000 citizens a year, almost all very young, have emigrated for the well-known economic and work-related reasons. […] These citizens maintain a bond of effective solidarity with the Italian State, yet they and their families, according to the reasoning of the referring judge and of Law 74/2025, are destined to no longer transmit Italian citizenship.”
74/2025 doesn’t allow for legitimate expectation
Avv. Cattaneo said that “the status of citizen, once acquired, is permanent in nature, is imprescriptible5, and is justiciable6 at any time based on the simple proof of […] birth from an Italian citizen.” The generational limit imposed by the new law, he says, goes against prior rulings by the Constitutional Court that maintain “the existence of a right to legitimate expectation.” (In other words, people who have been told since birth that they were born Italian cannot suddenly be told that their right has been qualified or denied.)
74/2025 ignores constitutional principles
In its sweeping and extreme scope, Legge 74/2025 ignores principles established by the Constitutional Court in 2015. Avv. Cattaneo said that “the law that intervenes in peius7 on previously defined regulatory frameworks must strictly apply the principles of reasonableness and proportionality[.]”
Expanding on that point, Avv. Giovanni Bonato acknowledged that Parliament has the power “to introduce new limits, new requirements for citizenship, without prejudice,” but he emphasized that Parliament must respect constitutional principles, “including in particular that of non-retroactivity, equality, reasonableness, and proportionality.” The generational limits imposed by 74/2025, he said, “would cause an illegitimate and automatic loss of citizenship for an indeterminate category of people. In other words, a collective deprivation, a real mass denationalization, would occur. A perverse, unjust, and illegitimate legal effect would thus be produced, an effect of a manipulative nature.”
74/2025’s new limits are partially “justified” by erroneous claims
Avv. Cattaneo attacked three unfounded claims: 1) that descendants of Italian emigrants have no ties to Italy, 2) that JS allows those descendants to enjoy the benefits of statehood without living in Italy; and 3), that if millions of those descendants gained the right to vote, they could override the wishes of voters in Italy.
The first claim, Cattaneo said, “betrays the false and unfortunately widespread conviction that the descendants of Italian emigrants […] have no link with Italy and therefore do not deserve to be considered members of the Italian community, despite what the law establishes. This conviction is the result of a lack of knowledge of the reality of Italian communities abroad, which is instead an enormous resource for the Italian State.”
The second claim “maintains that […] these descendants, despite not contributing to public spending in Italy, would enjoy the political and social benefits deriving from the status of citizens,” Cattaneo said. “In reality, the great part of the social state, for example, health care, social assistance, social security, is reserved for those who, regardless of nationality, are resident in Italy or carry out a work activity in Italy.”
And finally, Cattaneo made it clear that Italian voters abroad have limited representation that doesn’t “compromise the right of the Italian people to exercise sovereignty.” He explained that Italian citizens resident abroad can elect “eight deputies and four senators […] out of 600 members of Parliament. [… T]his is a fixed number of parliamentarians that does not depend on the extension of the population of Italian citizens abroad or on other factors, but is due to the objective lesser impact that political decisions have on the lives of citizens resident abroad. We are talking about 2 percent of Parliament.”
74/2025 supposedly wants to do what jus sanguinis already does: emphasize family and Italian identity
Avv. Diego Corapi presented a philosophical perspective defending the very nature of jus sanguinis. It is, he said, not a fiction but a reality. “It is, like much of legal language, […] a metaphor. […] We are not going to measure with a measuring cup how much blood comes from the grandfather or great-grandfather, Italian, and how much other blood comes instead from the other grandfather, perhaps of a different nationality. […] It is the reality of the family tradition and this exists, regardless of the legal, legislative, normative recognition that a legal system may attribute to it.”
The limits imposed by the new law—intended, supposedly, to reestablish a bond to Italy—are unnecessary. “The bond is already there,” Corapi said. “Of course, in the flow of generations, the bond may appear less evident. But it is like, if you will allow me, a karstic river. It is there, it is underground, it comes out, it goes down again, depending on the circumstances, the opportunities. But isn’t this also true enough for us Italian citizens who live in Italy? Do we feel Italian every day, do we participate every day in this reality of a people that is constituted by those who participate in families?”
Italian identity was defended again by Avv. Monica Restanio, herself a dual citizen. “Today, thousands of young people, under the force of Law 91 of ’92, born with this law, ask Italy, the cradle of law, for protection for their own identity and for their own roots, which are also the identity and roots of those who have remained here. It is a question of an existential, historical, transgenerational nature that goes beyond the very concept of the word justice. It is a duty of recognition toward those who, by emigrating, with sacrifice and dedication, have preciously guarded the values of Italianness, passing them down as an indelible legacy to their own family and their loved ones.”
74/2025 forces the loss of citizenship, which must be a conscious, voluntary act
Another problem with 74/2025, according to Bonato, is that it imposes the loss of citizenship on those for whom such loss must “derive only from a conscious, voluntary act. But not only [that], a clear incompatibility with European law would also occur. The Court of Justice, in a last judgment of September 2023, told us that Member States cannot introduce facts of automatic and surprising loss without granting the interested parties a reasonable term to manifest themselves for the purpose of maintaining their own status.”
74/2025’s retroactivity is unconstitutional
Bonato went on to say that “the most critical aspect of the decree concerns its retroactive scope, in the part where it provides that it is considered not to have ever acquired Italian citizenship whoever was born abroad even before its entry into force of this article and [who] is in possession of another citizenship.” Though the law allows for some exemptions, Bonato said that “we must bitterly note that we are in the presence of an ambiguous lexical formula behind which a very serious embarrassment of the ordinary legislator is hidden, who tries to mask with words the retroactivity of the mechanism. Behind this linguistic stratagem lies an unjust and perverse phenomenon of generalized deprivation of citizenship that goes to strike, without their knowledge, an entire category of people.”
Legge 74/2025 penalizes the descendants of Italians who have done no wrong
Not only does 74/2025 strip Italians of their citizenship without their knowledge, its writers and proponents have blamed the descendants of Italians for problems with JS and related judicial processes over which they have no control.
Avv. Bonato referenced French jurist Gerard Cornu and the Italian jurist and professor Cesare Massimo Bianca in saying that “children can have all the faults in the world except that of being born. In the same way, Italian descendants can have all the faults we want to attribute to them, except that of the choice of the place of birth in Italy or abroad, this being an absolutely accidental and involuntary fact. We cannot therefore penalize the descendants by depriving them of their citizenship only because they were born abroad, especially when for over 200 years the criterion of jus sanguinis has been absolutely prevalent, which is based solely on descent, considering the place of birth completely irrelevant.”
Avv. Restanio countered the lawmakers’ complaints about overloaded consulates, courts, and municipal offices by placing the blame on Italian bureaucracy. “The generational gap between the ancestor and the applicants that the referring judge complains about,” she said, “is not to be attributed to the disinterest of the families, but rather to decades of obstructionism on the part of the administration, which has systematically postponed the start of the recognition procedures of the status civitatis for those born abroad […]. Even the accumulation of requests that the referring judge complains about represents years of manipulation of the law on citizenship by officials of the administration […] who have limited the number of recognitions […]. This immutable ‘deep state’ has behaved as if the ascertainment of the status civitatis of the Italian born abroad were a discretionary concession and not a binding act and therefore due by the State.”
Restanio went on to say that “the convoluted bureaucratic reality that wears down the Italians born abroad for over four decades exceeds all imagination. Non-existent booking systems for the simple filing of applications, chronic delays, arbitrary requirements; in short, a system destined to prevent requests for recognition. Today, for example, many consulates refuse to issue the fiscal code necessary to […] pay the […] registration tax for the sentences, and after having dealt a mortal blow to the right of defense in court, the DL368 has transformed into law these restrictive and illegitimate practices […].”
74/2025’s faulty-logic concept of a homogenous community
Avv. Patrizio D’Andrea ended the series of arguments by saying that although 74/2025 targets generational limits and place of birth, what’s underlying those restrictions “is actually the recovery of a commonality of language, a commonality of history, of culture, and of traditions. [… The referring judges] have made reference to this idea of a cultural community, an identity community, […] that is, a community that preexists the legal, preexists the state, a homogeneous organic community […]. And I believe that this is a pseudo-concept, a pseudo-modern one that we instead, on the plane of the strict public law debate, must serenely reject. Why? Because it is clearly incompatible with the principle of pluralism9, which is an innervating principle of our Constitution.
“[…T]his idea of a territorial, identity-based community, on closer inspection, is a prejudice and not a legal category. […T]he referring judges cannot validly build censures on it […] because they attempt to […] present as a root what in reality is the fruit. That is, they are the ones who create this identity of a community that we do not find in the Constitution[.]”
The session ended with the CC president saying that all matters would be considered.
Stop the presses, there’s more!
We don’t know when the Court will rule or whether it will consider only the issue of generational limits that the hearing was intended to address, or if it will auto-vest to consider other aspects (or the whole) of 74/2025. We’d hardly begun to speculate when two days later, on June 26, the news broke that a judge in Turin had referred the retroactivity aspect of 74/2025 to the Constitutional Court. This is a BFD! If the Court rules that the retroactivity is unconstitutional, it could also strike down the entire law.
Whatever the outcomes of the June 24 and future CC hearings, it’s likely that there are more battles ahead. And, whatever the outcomes, we’ve all seen what happens when citizenship attorneys who are determined to do right by the descendants of Italians act as one. Their well-reasoned, passionate, eloquent, philosophical, and even poetic arguments were a glorious tonic for the bruised spirits of those of us struggling to claim what’s rightfully ours.
Tante belle cose, alla prossima—
Cheryl
Sorry, no book or other recommendations this week. This post was a bear to pull together and my brainpower meter is hovering around 1 percent. Next time!
P.S. My book! Which you can buy here or on the usual sites, or, better yet, order it from your local bookstore. Another fab option is to ask your library to stock it. If you read it and like it, please tell your friends and/or leave a few lines of praise on any bookish site. You’d be surprised how much a rating or review helps authors. Baci!
When you become a citizen by descent, your citizenship is legally recognized as having existed since your birth. When you naturalize as a citizen, you acquire that citizenship; no ancestral relationship to the country is necessary.
This perceived lack is subjective, not factual. Each emigrant family is different—some might maintain close ties to Italy through language, food, and traditions even when the emigrants left Italy 150 years ago, and some that emigrated more recently might maintain few ties, if any.
There’s a lot of discussion about the status of “in flight” applications, people who were collecting documents but hadn’t yet filed, and people whose cases were delayed through no fault of their own (due to lack of consulate appointments, for example).
This was later, diabolically, specified to mean that the parent (or grandparent) held ONLY Italian citizenship at the time of the descendant’s birth or at the time of the parent/grandparent’s death, if the death preceded the birth of the descendant.
Not subject to being taken away by prescription or the passage of time.
Subject to trial in a court of law.
Makes a change for the worse.
The decree-law that preceded 74/2025 until the law was voted on.
The recognition of various social, cultural, and political differences within a nation.
I particularly liked the argument that the "overwhelm" experienced by consulates and embassies dealing with citizenship requests is due entirely to the bureaucratic rules, regulations and discretions that govern the matter.
My wife, Boston born to parents who were US born, but to grandparents who were Italian born, was put through the ringer for three years. Our daughter and Italian son-in-law took it upon themselves to visit the Campania hill town where her great-grandfather had been born to meet with the town administrator to get the birth certificates and other documents that had been demanded by the consulate in Vancouver, Canada.
The administrator's office was a mess; the computer there an ancient one that the administrator did not know how to use. It took a couple of days, but the documents were "unburied" and dispatched with the correct testimony of the sindaco.
But...the administrator knew extant members of my wife's grandfathers' family. My daughter was taken to the local church where she found the family name in the dedications carved on pews and other furniture, all of which brought tears to her eyes. Later, a considerable feast arranged by long-lost relatives ensued, and my daughter and son-in-laws trunk filled with prodotti tipici including bottles of Greco di Tufo, the famous wine that is produced there. Quite a trip.
Eventually, my wife and daughter were rewarded with Italian citizenship. While my wife was working on the file, we did not know that we would ourselves move to Italy, but we did. I fly under my wife's wing, not a citizen here, but a happy Canadian still. But, I feel attached to this country according to the laws of general relativity.
Thanks for all of this, Cheryl. It was a lot of work putting this together and I appreciate it. Very helpful to my understanding. When reading excerpts of the arguments, I can't help seeing some parallels to the U.S. But even solely re: Italy, reading this sparked a good conversation in our house about nationalism. As they say... we'll see what happens.