Revisiting ‘Constitutional Maintenance’ Doctrines : A Materialist Reading
This chapter intends to contribute to studies of material constitutionalism precisely by applying Mortati’s concept of the material constitution to 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 that generally elude formal amendment procedures. It argues that while constitutional maintenance doctrines capture 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