Too soon to know: Exploring the conditions of existence of the constituent power—Afterword to the Foreword by Sergio Verdugo

Abstract

This Afterword takes up the challenge presented by Sergio Verdugo’s Foreword and explores how Costantino Mortati formulated the concept of material constitution to address the questions raised by both Verdugo and proponents of constituent power theory. This Afterword contends that the material constitution tackles the problem of the socio-political foundations of the constitutional regime without falling into some of the conceptual pitfalls that Verdugo identifies in constituent power theory. However, the materialist approach does carry a risk of manipulation, which can only be resolved by clarifying the nature of the constituent activity involved in founding a constitution. This innovative perspective refines what we can expect from a theory of constituent power. To develop the argument, this Afterword elucidates the concept of the material constitution, examines its relationship with constituent power theory, and discusses the limitations of the materialist approach.