A mutação constitucional como realização de defesa da Constituição da República Federativa do Brasil de 1988

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2011-05
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Martins, Flavia Bahia
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The purpose of this study is to analyze the plausibility of the thesis of the constitutional mutation as a mechanism for effectuation of the Constitution of the Federative Republic of Brazil of 1988 from 6 (six) main judgments of the Supreme Court determine whether the limitations of this phenomenon are being respected. Aiming to prove this thesis it was studied since the choice of the original constituents in assign a hard feature to the homeland Constitution allowing certain subjects its text to be changed through specific mechanisms, even the reflex legitimacy of STF judges to act as positive regulators changing the meaning of the rule without changing its content. The exposure of the limits of constitutional mutation also received particular attention, since only from the comprehension of these limits could be made an analysis of possible extrapolation of competence of the Judiciary. From the judgments of the Supreme Court we verify that the constitutional mutation is being applied within its limits, so this institute achieved its central goal of bringing the constitution close to the reality of the society without violating the principle of Separation of Powers. As s result we conclude that the constitutional mutation, from the current political scenario of suffocation and slowness of the Legislative Power, is an essential tool to enforce the fundamental principles and precepts of the Constitution. At this juncture, abdicate this valuable tool would be the same of admitting the failure and non-observance of the legal system since it wouldn’t be able to rule society’s human relations.


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