Filtragem de (in)constitucionalidade superveniente de normas constitucionais originárias: reflexo de uma dinâmica ampliativa dos direitos e garantias fundamentais

Abstract

This paper investigates discerning points for the possible emergence of incompatibility between norms recently added to the constitutional text, provided by the eternity clause condition on the grounds of instituting fundamental law or guarantee, in the face of the originary constitutional norm not having unsuppressability protection. The action of the constituent reforming power, whether by Constitutional Amendment approval, or by incorporation of judicial order of International Treaties which deal with Human Rights with status equivalent to constitutional norms, can, at any given time, render the hypothesis concrete. It remains to be seen, therefore, if the interpretation, underpinned by neoconstitutionalism, would be capable of resolving any type of similar problem or if a more extreme measure would be necessary, with the intervention of the Judiciary, carrying out a supervening filtration of the constitutionality of originary constitutional norms, in the light of the contrast with the eternity clause. As such, this paper was structured to provide brief commentaries, in chapter one, on the characteristics of the constituent power and on the mechanisms for constitutional updating. In chapter two, there is room for the appreciation of theories that, for several reasons, gave rise to a control of the constitutionality of originary constitutional norms and, also, a correct distinction of a terminological problem. The paper’s central question, for its part, is dealt with in chapter three, while chapter four presents a concrete case against the backdrop of the issue raised, thereby lending the analysis a practical dimension. Finally, by way of conclusion, there are reflections on potential solutions for the theoretical problem formulated.