This panel invites scholars to engage with a relatively neglected idea of 20th century constitutional studies: the material constitution. As an object of constitutional study, this notion has been engaged in a systematic way only by legal institutionalists of the first wave (Heller, Smend, Mortati, Schmitt of the 30s) and, in a different tradition, by...
Kelsen‘s Material Constitution and the Limits of Amendment Review
This paper will defend Kelsen‘s claim that formal constitutionality is reducible to material constitutionality. It will do so by discussing the question whether it is possible for a written constitution to limit judicial review of constitutional amendments to purely procedural review. There are several cases where such limitations broke down in practice. It will be...
On the Legal Implications of a ‘Permanent‘ Constituent Power
A number of Mexican constitutional scholars have insisted, since the early 20th century, in the ephemeral nature of the original constituent power. However, they also maintain that once the original constituent power is exhausted, a permanent constituent power emerges. According to them, in the Constitution of 1917, that permanent constituent power is located in a...
The political sociology of constitutions and the material constitution
This paper will discuss a political sociology of constitutions and constitutional politics. To this end, first, it will engage with the crucial question of the normative and sociological legitimacy of constitutional orders. Second, it will discuss the status of the political in sociological constitutionalism, and it will make a case for the recuperation of a...
The material constitution in the longue durée: reflections on the Chilean constitutional dilemma
What conditions must be met for giving normative weight to historical assertions about the material constitution? This paper looks at this question using as its starting point the case of Chile, where President Michelle Bachelet sought in her second administration (2014-2018) to frame the persistent constitutional debate about how to amend or replace the text...