But when President Carlo Azeglio Ciampi, Sergio Romano, and Eugenio Scalfari all open fire on exactly those fundamentals, the blaze that is lit cannot be ignored.

To step into a debate involving the President of the Republic (especially this President), former Ambassador and current Corriere della Sera columnist Romano, who has no peer today as a sound analyst of Italian political institutions and former La Repubblica editor, founder and now lead columnist Scalfari, the most vivacious political commentator since Indro Montanelli’s voice was silenced… is an act of foolish hubris. But distance might have its advantages. Even great men can sometimes be standing too close to the fire.
The debate starts (but doesn’t end) with the questions: 1) of whether the prime minister should launch public attacks on magistrates, and how (or whether) magistrates should respond; and, 2) how aggressively the magistracy should enter into substantive debate on new and proposed legislation. It’s best to ignore the flame-throwers in Palazzo Chigi and the halls of the Corte di cassazione and cut directly to the upper levels of the debate. President Ciampi went beyond an anodyne admonition urging the usual probity on the magistrates by insisting that the appearance of probity was equally important. The implication was that the public, out-of-courtroom behavior of the magistrates was at issue. Romano made the implicit very explicit. Romano believes that magistrates, having made the political choice of donning the toga, must not just apply the law “…scrupulously and act with impeccable professional rigor,” but must entirely avoid any act (e.g., engaging in politics) that might “project a shadow on the impartiality of the magistrate.” The magistrate must not even “express himself in public life as a citizen.” Caesar’s wife in judicial robes. Focusing in a subsequent column on the speech by the President of the Corte di Cassazione (Marvulli) to open the judicial year, Romano evoked (for many of us) memories of Mani pulite by declaring that the magistracy as an institution “fails in its job at the moment when the virtue of objectivity is replaced by ideological solidarity.” This was too much for Scalfari at La Repubblica. Scalfari (who has put the word premier in quotation marks since Berlusconi took office) asked whether the magistracy must suffer Berlusconi’s low blows and Romano’s loftier sermons without being able to respond in kind. He insists that to inhibit the magistrates’ jumping into the arena to defend themselves is pure hypocrisy. It means they must “pretend not to think, even pretend not to have ever thought.” Scalfari worries about the independence of a magistracy under such intense fire.
The battle that has been joined is seen by both as a “grave institutional conflict” (Scalfari’s words) and “an episode in the longest war between the powers ever fought within the Italian state” (Romano’s words).
It’s certainly true that some of the language by the active players (we don’t mean Ciampi, Romano, and Scalfari) does not constitute a very elevated political discourse. Ciampi’s warning to cool the polemic could well be made on the basis of aesthetics alone. But good taste aside, well aside, what is wrong with the Romano-Scalfari tussle on whether the magistrates should be public political players is simply the verb tense. They are debating that which has already been decided. After a number of congresses of Magistratura democratica alarmed many of us in the 1970s with agreed declarations of their intention to bring about profound political change through their actions in the courtroom, after a broad spectrum of magistrates formed party-like blocs (with names, meetings, publications, membership lists, etc.) based on political leanings, after the chief of the Milan pool (Francesco Saverio Borrelli) led his Mani pulite team into partisan battle with language lifted from the French Revolution, after Antonio Di Pietro and his colleagues staged a television event on the steps of the Palace of Justice in May 1994 to express their view in the debate over the Biondi Decree-Law, after strikes and demonstrations, and, yes, after Marvulli’s January speech… it is now beyond the power of either Romano or the magistrates themselves to give them back their political virginity. For good or evil, that issue has been, for our lifetime at least, long since decided.
But suppose Sergio Romano could find the switch that would turn off the mouths of the magistrates. And suppose Eugenio Scalfari could locate the electronic control device (for we’re dealing with La Sua Emittenza here) that would de-activate Berlusconi on the subject of Italian justice. Let us use the sudden silence to take a long step back and try to understand the institutional crisis that has been declared by both sides. What we are really talking about is the separation of powers in a modern democracy. Here perhaps a Yank has one small element of advantage, for no one has thought more lucidly about the separation of powers than America’s greatest political philosopher, Publius, the pseudonymous author created by Jefferson, Madison, and Jay so that The Federalist, drawing openly on Locke and Montesquieu and furtively on Hobbes, would constitute a vision above their own partisan views. Seen through the eyes of Publius, a debate, even a raging conflict, among the executive, legislature, and judiciary is not a sign of political illness. The conflict is what the separation was designed to ensure. In fact, harmony among the three branches is to be feared. Harmony makes the separation worse than irrelevant. It suggests a concentration of power and political thought, which is exactly what the separation seeks to avoid. Not only is conflict the way it is supposed to work, it is the only sign that it is working.
Joseph LaPalombara has noted correctly in these pages the damage that can be done by Danish cartoons and other irresponsible use of a freedom which cannot be absolute. However revered press and speech freedom may be, they are only two among several values rendered semi-sacred by natural right or written constitutions and these values are sometimes in conflict. Nobody said life would be simple. But what is true of the Danish cartoon debate is true also of the Italian institutional debate. It is that which is offensive that deserves protection. In fact, the inoffensive has no need of protection. The idea of press freedom is there only to protect that which offends. And so one must also insist on protecting a conflict among the great powers of the Italian state precisely when it offends. Of course the tone of the current scuffling leaves a bad taste in the mouth. The parties to the conflict should be harshly criticized for frequent irresponsible excess. But it is the debaters who should be attacked, not the debate.