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 notion of collective autonomy. Subsequently, it will suggest the need for the acknowledgement of a plurality of legal/constitutional rationalities, beyond those related to liberal constitutionalism, to, fourth, link this with the idea that constitutional orders are subject to continuous conflict over their meaning. Finally, key dimensions of a distinctive political-sociological understanding of constitutions – such as conflict, plurality of rationalities, and hegemony, will be related to the idea of the ‘material constitution’, not least in the context of the European constitutional order

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 shown that these apparent instances of judicial overreach were inevitable, in light of the reducibility of formal to material constitutionality first diagnosed by Kelsen, and that they should be welcomed by proponents of democratic constitutionalism.

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 enacted in 1980 by Augusto Pinochet’s dictatorship as a search for “the best aspects of our constitutional tradition”. Using a historical, longue durée perspective, this presentation will argue that only a constituent strategy that recognizes the “structures of repetition”, to put it in Koselleckian terms, that characterize that tradition, and that does not seek to interpret them in their Dworkinian “best light” but rather embraces a fully materialist analysis of the historical constitution, will be able to realize the aspiration towards constitutional emancipation of the Chilean people.

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 two-thirds majority of the Federal Congress and the majority of the State Legislatures. This idea has had major legal implications. It has resulted, for example, in the judicial rejection of the doctrine of unconstitutional constitutional amendments and in a lack of differentiation between ordinary amendments and changes that alter in important ways the content of the material constitution. In this paper, we will examine the development of the notion of the permanent constituent power in Mexican constitutional theory, as well as the impact that it has had in the country’s constitutional jurisprudence.