18 - A Material Understanding of Constitutional Changes

Summary

The chapter intends to contribute to studies on material constitutionalism by applying Costantino Mortati’s concept of material constitution to discuss theories of constitutional change. In particular, it focusses on ‘constitutional maintenance’ doctrines elaborated in continental Europe to explain cases of limited and/or substantively guided constitutional changes, generally eluding the formal amending procedures. It argues that while constitutional maintenance doctrines catch one of the functions of the theory of the material constitution, namely, to guide constitutional changes, they fall into a logical contradiction by: (a) observing constitutional changes on the basis of mismatches between constitutional practice and the master-text constitution; and (b) supporting the need to minimise those mismatches. The argument is preceded by an analysis of doctrinal debates on constitutional change in selected jurisdictions. It is then developed by unpacking the material constitution theory in two logical steps. In particular, it will focus on the problem of the identification of the constitution and on the related need to reduce the substantive distance between the formal and the material constitution. Eventually, the chapter offers conclusions on how material constitutionalism can contribute to studies on constitutional change.