“Liquid Constitutions” and Their Informal Changes

See Burdeau (1956), p. 59 ff. Adopting this definition Miranda (2013), p. 25; de Morais (2018), p. 39.

In general, see Kriele (2009), pp. 24 ff., 29 ff.

On “multilevel constitutionalism”, see Perez Luño (2011), p. 86 ff; Häberle (1993, 2000a), p. 120 ff; McCormick (1993), p. 1 ff; Maduro (2003), p. 76; Kumm (2009, 2012); Camerlengo (2007).

See Kumm (2012), p. 263 ff.; Tuebner (2016), pp. 51, 68 ff; Medeiros (2015), pp. 20 ff., 32 ff.

Canosa Usera (1988), p. 135, although defending the plurality of interpretive methods and the specificity of constitutional interpretation attentive to the political and axiological openness of norms, admits that “the amalgam of data and instruments constitutes interpretation as an almost chaotic reality” that would recall a “pharmaceutical product”.

See Green (2009), p. 1195.

See Alexander (2015), p. 16.

Idem.

See Ramos (2010), p. 116 ff.

See La Torre (2015), p. 5.

On Laband’s differentiation, see Hesse (2009), pp. 151–152.

On Jellinek’s construction, see Hesse (2009), pp. 154–155.

See de Morais (2018), p. 698 ff.

See Mendes (2016), p. 255; Ribeiro (2014), p. 606 ff.

Häberle (2002), p. 43.

Häberle (1980), p. 3 ff.

Häberle (1978), p. 88 ff.

Priestess in Delphi who acted as an oracle, predicting the future.

Böckenforde (2000), p. 192 ff.

In response to uncommon statements of unconstitutionality of constitutional amendments made by the Brazilian Federal Supreme Court, based on the violation of substantial limits for constitutional amendment, a constitutional amendment was drafted, PEC 33, which was presented in the Congress in order to limit the competencies of the Supreme Court. According to this proposal, the Federal Supreme Court would need to rule on the invalidation of any amendment by a qualified majority and, in case of opposition from the Congress to that ruling, the matter would have to be decided by the people in popular consultation. Some Federal Supreme Court Justices warned, in public statements, that if passed, PEC 33 would be deemed unconstitutional for violation of the substantial limit of separation of powers. PEC 33 was not yet adopted. But if such a hypothesis occurs, the Supreme would have self-government over all its legal status, assuming itself as an unlimited power and not as an body subject to the same checks and balances other powers are bound to.

This is the classic case of “Free Speech” foreseen in the first amendment of the US Constitution that in the original context referred only to the oral expression, but as time passed, included many other realities such as writing, gestural, images, pamphlets and communication in the cyberspace. A purely literal interpretation of the formula would leave many contemporary forms of freedom in communication without constitutional protection (Tribe 2008, p. 25).

In Portugal, we had the case of the value of the pension attributed to the widows' when their husbands died in work-related accidents, value which was higher than that of widowers under the analogous circumstances. This difference in the value of pensions in 1976 was not originally unconstitutional due to women's financial dependence on male spouses, in view of the lower female access to the labor market. They constituted, therefore, a materially well-founded positive discrimination. Over time, women began to access the labor market on a regular basis, and the remuneration status between men and women was overall equalized. Consequently, the difference in the amount of pensions became unjustified because it violated the principle of equality and was found to be unconstitutional (Ac. 449/87 of Constitutional Court). The decision formed a mix of judgment based on a sliding unconstitutionality and an additive ruling, tending to provide, with the addition of a normative criterion, the equalization for both sexes of the subsidy by the greater value (the one that was attributed to widows).

The German Federal Constitutional Court’s interpretation in accordance with the Constitution creates a binding effect for the courts and the public administration regarding the motivation of the judgment. This interpretation therefore assumes a normative effect that becomes problematic when a norm can be interpreted through more than one meaning according to the Constitution. After an oscillating jurisprudence, the German Federal Constitutional Court (BVerfGE 40,88 [93]) admitted that before a plurality of meanings of a norm, some of which would be constitutional and others unconstitutional, the binding effect would only cover those which were contrary to the Constitution (Simon 2001, p. 842).

The Brazilian Federal Supreme Court, in a monocratic decision of judgment of the Habeas Corpus 124,306, decriminalized abortion by request, based on the autonomy of decision the woman, on her sexual and reproductive rights, on her psychic and physical integrity, on the principle of equality (as men would not get pregnant). It ruled also that this decriminalization would operate during the first 3 months of pregnancy, because “no democratic and developed country in the world” treats the termination of pregnancy during the first trimester as a crime. The court amended the law in this case, not only by decriminalizing abortion but also by setting specific periods of closure for such decriminalization, based on some kind of “legal tourism” conducted among a mix of foreign systems.

See Böckenförde (2000), p. 191 ff. Article 1(3) of the German Constitution states that “The fundamental rights, which are described below, constitute directly applicable rights and bind the legislative, executive and judicial branches.” The norm was originally understood as a command to public authorities but not a binding link between private parties. The Court held that fundamental rights were binding on civil law and that freedom of expression could be limited by general laws, pursuant to Article 5(2) of the Constitution (in this case, there was the possibility of Article 826 of the Civil Code to allow accountability for manifestations of freedom of expression with an immoral character that would cause harm to others), and should be evaluated in accordance with the Constitution itself. In casu, it considered that the call for a boycott of a film made by an ex-Nazi filmmaker would not necessarily be an immoral act and could be justified in light of the balancing of the interests involved. If the general laws that govern Private Law place limits on a fundamental right as relevant as the freedom of expression, they need to be interpreted in light of the axiological meaning of this fundamental right in those points where they manifest their limiting effects of fundamental rights. The court held that the reasons for the boycott call were intended to avoid the idea that there would be a return to national-socialist filmmaking and that it was not an immoral conduct. And it recognized that the fundamental right to free expression of thought also applies to private relations in the case where it conflicts with private interests.

The mutation generated did not confront the text of the Constitution since, by extensive means, it considered that private relations are not immune to the application of the rights of freedom, since the general civil laws that regulate or limit these rights are subject to them. And that this subjection requires balancing judgments about conflicting rights and interests among the individuals covered by the same law.

See Spadaro (1998), p. 112 ff.

The Court nevertheless does not exclude to review the constitutionality of regional laws which violate European Union law, in light of article 11 of the Constitution.

In Brazil, this is the case of ADI n. 4.277 and ADPF n. 132 / RJ, which recognized stable same-sex unions based on a conjunction of principles (the right to happiness and the principle of equality), thereby derogating article 226 § 3 of the Brazilian Constitution, which only recognizes stable unions between a man and a woman.

See Böckenförde (2000), p. 193.

On this classification, see Carducci (2010).

The already named case of ADI n° 4.277 and ADPF n° 132 / RJ, in Brazil, which allowed same-sex unions based on the conjunction of a complex of principles (from the right to happiness to the principle of equality).

About the same question expressed in the previous note, the reasoning of the Brazilian Federal Supreme Court rapporteur who judged ADI n° 4.277 and ADPF n° 132 / RJ, wrongly invoked an interpretation in conformity with the Constitution based on a norm which was not polysemic (but instead could only consent an indivisible interpretation (article 1.732 of the Brazilian Civil Code, articulated with article 226, § 3 of the Constitution—see Mendes 2016, p. 221 ff.).

See Ac n°.786/96, of the Portuguese Constitutional Court. Article 282(3) of the Constitution protects res judicata from the repressive ex tunc effects of a decision on unconstitutionality of the norm applied in those cases. The Court, however, included in the same protective provision another institute, the administrative figure of “decided administrative case” (administrative acts based on an unconstitutional rule but consolidated, because they were not syndicated in administrative courts during the period that the law establishes for their annulment). This assimilation of “decided administrative case” to res judicata is absurd, not only because it is not possible to resort to the analogy when two institutions have a very different nature, but also because article 282(3) of the Constitution is an exceptional rule, and analogic constructions are not allowed to depart from those sort of norms.

See Ac. n. 121/2010 of the Portuguese Constitutional Court, which ruled that same-sex marriage is in conformity with the Constitution. The ruling was based on a restrictive interpretation of article 16(1) of the Universal Declaration of Human Rights, a document of constitutional qualified value in Portuguese order, pursuant to Article 16(2) of the Constitution, which requires that the rights, freedoms and guarantees must be interpreted and integrated in accordance with that Declaration. Since Article 16 (1) of the Declaration proclaims the right of men and women to marry, which would forbid same-sex marriage, the Constitutional Court considered that the same norm should be interpreted only in a more favorable sense to fundamental rights and not in a restrictive sense. In consequence, the law consenting same-sex marriage would not violate that provision. Such an amputation of the scope of a rule which the Court describes as ‘quasi-supra constitutional’ (would result, in the opinion of the former President of the Court, from a restrictive sort of interpretation. However the Constitutional Court decoupled restrictive interpretation from its dogmatic foundations: there was no contradiction in the law; no exceedance by the principle of the end for which it was created; and the inexistence of an incorrect verbal content that needs correction. None of these due conditions were present to support the restrictive interpretation.

Cases of lack of enactment of laws and signature of regulatory decrees and international agreements by the President of the Republic (article 137); lack of ministerial counter-signature on certain acts of the President (Article 140 (2)); decree of parliamentary dissolution during the state of emergency and during a 6 month period after election of Parliament (article 172(2) of the Portuguese Constitution).

Like the publication of treaties without the President’s ratification and the amendment of the Constitution during the states of emergency.

de Sousa (1988), p. 286 ff; Canotilho and Moreira (2014), p. 1003; Miranda (2013), p. 215; de Morais (2006), p. 204 ff.

See Miranda (2013), p. 217.

See Miranda (2013), p. 106.

See Rubio Llorente (1993), p. 606.

See Böckenförde (2006), p. 102.