The material constitution

What is the material context of constitutional order? The purpose of this paper is to offer an answer to that question by sketching a theory of the material constitution. After examining the historical origins of the material turn in the interwar constitutional theories of Heller and Mortati, the paper outlines the basic elements of the material constitution, specifying its four ordering forces. These are political unity, the dominant form of which remains the modern nation-state; a set of institutions, including but not limited to formal governmental branches such as courts, parliaments, executives, administrations; a network of social relations, including class interests and social movements, and a set of fundamental political objectives (or teloi). These forces constitute the material substance and dynamic process of constitutional ordering. They are not external to the formal constitution but are in internal relation with it. Because these ordering forces are multiple, and in tension with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterizes the modern human condition might but need not be internalised by the process of constitutional ordering. The theory of the material constitution offers an account of the basic elements of this process as well as its internal dynamic.