A material understanding of constitutional changes. Revisiting ‘constitutional maintenance’ doctrines

The chapter applies the concept of the material constitution to discuss theories of “constitutional maintenance”, elaborated in continental Europe to explain cases of limited and substantively guided amendments to the text of the constitution, by examining both the case law and the doctrinal debates in selected jurisdictions (including Italy, Germany and Portugal). Indeed, theories of constitutional maintenance interact with the concept of material constitution in two ways: a) they support arguments for the preservation of the essential content of the constitutional setting, which is in turn identified with the material constitution; b) they claim the need to reduce the distance between the formal and the material constitution, by supporting the incorporation of those (even marginal) changes of the material constitution that have been accepted and metabolised by the political community. The author argues that constitutional maintenance doctrines indicate that the notion of material constitution is capable of explaining the constitutional practice of some European jurisdiction. Nevertheless, some confusion on both its meaning and implication persists and suggest the need to further develop the scholarly discussion on the topic.