Espectro dirigista e redutivismo hermenêutico: sobre as emendas à Constituição de 1988

Abstract

The high number of constitutional amendments is a characteristic of the Brazilian Constitution. Many of them aimed to change specific points of the economic, financial, and social orders of the Constitution, while the sections on fundamental rights and the separation of powers, except for the recognition of new rights and the regulation of specific provisions related to the interaction between the constituted powers, are, in general, practically untouched. The profusion of constitutional amendments in such specific areas raises questions: what would explain, specifically in Brazil, this peculiar form of political dispute? What does the promulgation of so many constitutional amendments mean? This work assumes that, since the drafting of the Brazilian Constitution, there has been a dispute in Brazilian society between those in favor of and those opposed to its norms of compromise and socioeconomic content. Given this impasse, this work assumes that both groups presuppose the Brazilian Constitution as a medium of legitimacy for politics. However, although the paradox of legitimacy assured through legality is constitutive of legal-constitutional modernity as a whole, this same paradox does not seem to have generated the phenomenon of the excessive use of constitutional amendments in all concrete constitutional orders, as it has in Brazil. Thus, the hypothesis put forward here is that the high number of constitutional amendments enacted in Brazil can be explained by the fact that, driven by a transformative constitutional spectrum, the interpretation of both those in favor of and those opposed to its norms of compromise and socioeconomic content reduces the norm to the text itself. In this way, it is assumed that it is necessary to guarantee textually an immediate basis for political claims in the constitutional text itself, as a way of legitimizing them and avoiding interpretative conflicts, revealing the paradox of the legitimizing force of law. In order to support this argument, the reasons presented by national political forces to justify the approval of the amendments enacted to the Brazilian Constitution will be investigated.