Italy's constitutional referendum

Monday 23 March 2026

In the spring of 2026 the Italian Republic finds herself once again at a constitutional crossroads — a familiar condition in a polity whose post-war history has been marked by periodic attempts to recalibrate the delicate balance between political authority and institutional restraint. The proposed amendments to her Constitution, submitted to a confirmatory referendum on 22 and 23 March 2026, are outwardly technical in nature. Yet as so often in Italy, the legal mechanics conceal a deeper political drama — one that concerns not merely the organisation of the judiciary, but the future equilibrium of the state itself.

At the centre of the reform lies a long-contested question within Italian constitutional law: the relationship between judges and public prosecutors. Since the adoption of the Constitution in 1948 both have belonged to a single professional corps, entering through the same examinations and often moving between roles. The reform would decisively sever this unity — creating two distinct career paths, one for judges and one for prosecutors, thereby altering the philosophical premise of the Italian magistracy as a unified guardian of legality. 

This separation is accompanied by an institutional reconfiguration of considerable consequence. The Consiglio Superiore della Magistratura (CSM) — the High Council of the Judiciary, which presently governs appointments, promotions and discipline — would be divided into two bodies, one for each branch of the magistracy. Membership of these bodies would no longer be determined principally through election, but rather through a system of sortition — the drawing of lots from eligible candidates. 

To this is added the creation of a High Disciplinary Court, removing disciplinary jurisdiction from the existing structures and concentrating it in a newly constituted tribunal with its own procedures and composition. 

These are not marginal adjustments. They constitute a reimagining of the constitutional architecture of justice in Italy — one that seeks to redefine the independence, accountability and internal culture of the magistracy.

The legal mechanism by which these changes are submitted to the electorate is itself significant. Under Article 138 of the Italian Constitution, amendments that fail to secure a two-thirds majority in Parliament must be submitted to a confirmatory referendum if requested. This referendum is not subject to a turnout quorum — a peculiarity of Italian constitutional design that renders even low-participation outcomes legally decisive. 

Thus the electorate is asked a binary question: whether to confirm or reject a reform already approved by Parliament but lacking supermajoritarian consensus. 

Yet the juridical clarity of this procedure contrasts sharply with the political ambiguity of the campaign that has unfolded around it. For Prime Minister Giorgia Meloni the referendum has evolved into something approaching a plebiscite on her leadership. Although not formally a vote of confidence, it has been framed — by both supporters and opponents — as a test of her authority and of the broader project of her right-wing coalition, even though the judicial reforms proposed do not neatly fit a left / right political division. 

Meloni and her allies argue that the reform addresses a long-standing dysfunction in Italian public life: the politicisation of the judiciary. They contend that the current system allows factions within the magistracy to exert disproportionate influence over public affairs, frustrating elected governments and distorting democratic accountability. The separation of careers, in this view, restores impartiality — ensuring that prosecutors, who act as parties in criminal proceedings, are no longer institutionally indistinguishable from judges, who are meant to adjudicate with neutrality. 

Opponents however perceive a different logic at work. For them, the reform represents not a depoliticisation of justice but its subordination. The introduction of sortition, they argue, risks weakening professional self-governance, while the fragmentation of the CSM may dilute the collective independence that has historically shielded the judiciary from political interference. It is not obvious that this would be the result - the consequence might instead be to loosen existing power structures in the CSM and render the body more broadly representative. Nevertheless critics fear that the reform would render prosecutors more vulnerable to executive pressure — particularly in a system where criminal investigations have often touched upon the political class. 

These concerns are not merely theoretical. Italy’s post-war history is replete with moments in which the judiciary has acted as a counterweight to political power — from the anti-corruption investigations of the 1990s to more recent inquiries into organised crime and public administration. To alter the institutional conditions under which such investigations occur is, inevitably, to engage in a constitutional recalibration of the balance between law and politics.

The referendum campaign has therefore assumed a tone of unusual intensity. What might have been presented as a technical reform of judicial governance has instead become a symbolic contest over the nature of Italian democracy. Public discourse has been marked by accusations of judicial activism on one side and warnings of authoritarian drift on the other — with comparisons made, in some quarters, to developments in Hungary and Poland. 

In this sense the Italian referendum cannot be understood in isolation. It forms part of a broader European conversation about the role of courts, the limits of executive power and the resilience of liberal constitutionalism in an era of populist politics.

For Meloni personally the stakes are considerable. A victory for the “Yes” campaign would consolidate her authority, providing both domestic legitimacy and a platform for further institutional reforms — including, potentially, changes to the electoral system or even the introduction of direct election for the prime minister. A defeat by contrast would embolden a fragmented opposition and raise questions about the durability of her political project as Italy approaches the next general election. 

And yet beyond the fortunes of any individual leader there lies a more enduring question — one that has haunted Italian constitutionalism since its inception. How does one reconcile the need for effective governance with the imperative of institutional restraint? How does one ensure that justice is both independent and accountable, both insulated from politics and responsive to democratic legitimacy?

The 2026 referendum offers no simple answers. It presents instead a choice between competing conceptions of the state — between a judiciary conceived as a unified, autonomous order, and one restructured along lines that emphasise differentiation, accountability and, perhaps, susceptibility to political currents.

The Italian voter is asked to decide not merely upon a set of amendments, but upon a constitutional philosophy. Whether he or she chooses continuity or change, the consequences will extend far beyond the technicalities of judicial organisation — shaping the trajectory of Italian democracy for years to come.