The Material Constitution

This chapter explores the way in which several authors understood the relationship between the material constitution and constituent power, and how that understanding affected their views about the legal limits of the ordinary power of constitutional reform. Part I begins with a brief examination of the historical development of the distinction between the amending and the constituent power. Part II examines the place of the concept of super-legality in Hauriou’s work. For this author, constitutional super-legality includes not only the content of a written constitution protected by a special rule of change, but also the fundamental principles that stand above the constitution itself. Part III introduces Kelsen’s conception of the material constitution which, unlike Hauriou’s, is entirely consistent with the notion of an unlimited amendment power, one which cannot ultimately be bound by eternity clauses and much less by implicit principles. In Part IV, this ‘descriptive’ approach will be contrasted with that of Schmitt. Somewhat counter-intuitively, under Schmitt’s approach, the frequent appeal to an unlimited and unmediated constituent subject leads to the attribution of limited competences to the amending authority. Part V shows how Heller’s conception of the material constitution, although at first sight appearing as a successful synthesis of Kelsen and Schmitt, provides no clear basis for justifying the protection of the material constitution through the legal appeal to an extra-legal constituent authority. Finally, the chapter examines Mortati’s views about the material constitution’s potential role in justifying the imposition of legally enforceable limits on the amending authority.