Decisões intermediárias da Justiça Constitucional como mutação da Constituição

• Autor(a) principal: Knoerr, Cibele Fernandes Dias
• Data de Publicação: 2011
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/5754
• topic: Mutação constitucional; Decisões intermediárias; Jurisdição constitucional; Democracia; Interpretação; Constitutional changes; Intermediate decisions; Constitutional jurisdicition; Democracy; Interpretation; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

This work analyzes the phenomenon of constitutional change made by trials intermediaries of constitutional jurisdiction. Therefore, it begins from theory of constituent power to demonstrate that the Constitution is not only the text promulgated by the founding fathers. Regulatory provisions are subject to formal and informal changes. The first occurs by reform and review. The latter occurs by constitutional change, which can be legitimate (interpretation and practice) or illegitimate (break). Constitutional change results from the integration of two interdependent elements within the constitutional provision: the normative and factual. In order to support this conclusion, we analyze the main doctrines about constitutional change. This leads us to question the foundation of the constitutional change, which resides in the diffuse constituent power, which, in the expression of BURDEAU, aims to complement and continue the work of the original constituents. Once constitutional change is as something internal to the legal standard, we must identify the limits of the interpretive task, given the risk of suffocation by saturation of legal policy. The study about the relationship between democracy and constitutional jurisdiction is based on the American Law, where the theory of judicial review was first developed. So, the legitimacy of judicial review facing the democratic principle is seriously discussed in that Country. These limits are sought in the doctrines of WALDRON, favorable to the primacy of the legislator; DWORKIN, defender of judicial review even when it requires a mythical judge like Hercules, and ACKERMAN, who tries to balance the equation in the search for consensus. The study then goes on to the ambivalent role of trials intermediaries as the result of a constitutional change and also as an instrument of change. Finally, we conclude that the development of trials intermediaries transforms the judicial interpretation in a higher mechanism of constitutional change, given its erga omnes and vinculative effects. The results obtained in this research allows to assess that constitutional change depends on transformation of the legitimate sense of the Constitution, which should be recognized by the Supreme Court in the exercise of Constitutional jurisdiction