Os limites da mutação constitucional: análise do art. 52, X, da Constituição Federal na reclamação constitucional n. 4.335/AC

Abstract

This work aims to analyze the limits of constitutional mutation based on the informal alteration proposed by the Chief Justices Gilmar Mendes and Eros Grau to section 52(X), Federal Constitution 1988, in the Reclamação Constitucional 4335/AC. To achieve this goal, the historical evolution of the referred institute is analyzed, taking notice that the Federal Constitution 1988 gave the Supreme Court (STF) the possibility to grant erga omnes effects to its decisions without the participation of the Federal Senate. Such modification gave way to significative changes in the comprehension and application of the section. However, it cannot be forgotten that the Supreme Court (STF) is a constituted power, and, as such, it is limited by the Constitution itself. Therefore the implicit and explicit material limits in the Constitution, as well as the normative program of the constitutional norm must be analyzed as limits to the mutation. In this context, Hsü Dau-Lin and Konrad Hesse contribute to the delimitation of the concept of constitutional mutation so these limits may be applied to section 52(X) of Federal Constitution 1988.