Understanding Constitutional Law and Its Evolution
Constitutional Law: A Framework for Governance
Constitutional Law is a systematic set of rules that structures the state, establishes the rights and guarantees of its population, and limits the powers of rulers.
Constitutionalism: A Historical Perspective
Constitutionalism represents the evolution of constitutional laws from ancient times to the present. In antiquity, Plato and Aristotle developed the theory of limiting government power through a supreme law. The Enlightenment (17th and 18th centuries) laid the foundation for modern constitutionalism, advocating for rational legal rules binding on both rulers and the ruled.
In the 18th century, Montesquieu developed the theory of the tripartite division of powers (legislative, executive, and judiciary) along with the theory of checks and balances. These theories were incorporated into the Declaration of Human Rights and the U.S. Constitution, influencing the democratic world.
Theory of Constitutional Supremacy
Constitutional law is superior to common law (laws outside the Constitution) because common law derives its validity from the Constitution. Hans Kelsen’s Pure Theory of Law envisions a pyramid of legal rules with the Constitution at the apex and lower-hierarchy laws beneath it. This hierarchy establishes the Constitution as the supreme law of the land, rendering any conflicting rules unconstitutional.
Constituent Power: The Authority to Create and Amend Constitutions
Constituent power refers to the authority of the people to create and amend their Constitution. It is distinct from established power, which encompasses the powers granted by the Constitution (legislative, executive, and judiciary).
A. Original Constituent Power: The Foundation of a State
Original constituent power establishes the state, its form of government, and its system of government, drafting the constitution and replacing any previous law. The 18th-century French abbot Sieyès argued that the power to create a sovereign Constitution belonged to the people.
In a democratic state, the people hold and exercise this inalienable right. When representatives of the people (constituent assembly) draft the constitution, it is considered enacted. Otherwise, it is considered granted.
The dominant doctrine and the Supreme Federal Court (STF) characterize original constituent power as original, sovereign, unconditional, and unlimited. A minority doctrine, following German jurist Otto Bachoff, argues that natural law and internationally recognized human rights limit the exercise of original constituent power.
B. Derived Constituent Power (Reform): Adapting the Constitution
Derived constituent power (reform) allows for updating and amending the Constitution as needed. It is an established power granted by the original constituent power and is also known as constituted, imposed, or second-degree power.
In a democratic state, the people exercise this power through their representatives (members of parliament and senators) in the legislature. Derived constituent power is characterized as conditioned, secondary, and limited by formal limitations (procedures), circumstantial limitations (specific circumstances), and material limitations (entrenchment clauses, both explicit and implicit).
While there is debate regarding time limitations in the current Brazilian Constitution, the majority doctrine does not recognize them. Historically, such limitations existed; for example, the 1824 Constitution prohibited any reform within the first four years of its publication.
C. Derived Constituent Power (Due): Developing State Constitutions
Derived constituent power (due) allows for the development of state constitutions. It is also granted by the original constituent power, as outlined in Article 25 of the Federal Constitution and Article 11 of the Temporary Constitutional Provisions Act (ADCT).
In a democratic state, the people exercise this power through their representatives (state representatives) in the state legislature.