Limitações ao poder de reforma constitucional na Constituição Federal de 1988 / Amending process limitations in the Brazilian constitution
AUTOR(ES)
Eurico Zecchin Maiolino
FONTE
IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia
DATA DE PUBLICAÇÃO
16/03/2011
RESUMO
The Constitution is a product of Constituent Power. After elaborating the Constitution, the Constituent power remains asleep. Nevertheless, the Constitution, as a law, necessits to be adjusted to the social reality or will not be able to rule the live of the State and the society and will be replaced by the Constituent Power revoluctionary action. Therefore, the Constituent Power imputes to an Assembly the function of amending the Constitution; however, both of them are not the same phenomenon. The power of amending the Constitution is created by the Constituent Power and consequently is submited to the limitations established. Some authors refuse the limitations of amending process, because the generation can not bind the future generations; others support the possibility to overcome the limitations by a double amending process; finaly, there is a tendency to defend the limitations presenting three mainly arguments: constitutional precommitment, dualist democracy and the defense of the democracy and the human rights. The Brazilian Constitution ordains four sorts of limitations: substantial, formal, circunstantial and temporal. The deepest disagreement refer to the substantial limitations that obstruct the reform of the Constitution nucleus. To guarantee the existence of the limitations, the amending process submits to the control by the Supreme Court.
ASSUNTO(S)
direito constitucional limitations poder constituinte reforma constitucional amendment process brazilian federal constitution constituent power constituição de 1988 democracy
