PODER CONSTITUINTE: Originário e Derivado (Decorrente, Reformador e Revisor) | Cíntia Brunelli

Summary

In this video, the speaker provides a clear and concise explanation of constitutional power, breaking down complex concepts like constituent power, both originative and derivative, and their various types—reformative, revisory, and derived from states. Additionally, the speaker covers the informal process of constitutional change through judicial interpretation, known as constitutional mutation, and explores key legal phenomena like reception, repristination, and de-constitutionalization. Aimed at making constitutional law more accessible, the speaker explains these principles in an engaging, straightforward way, offering viewers a deeper understanding of the legal processes shaping their countries.

Takeaways

• 😀 The constituent power is the ability to create or update a constitution, typically held by the people. However, it is often exercised by representatives rather than directly by the people.
• 😀 The constituent power is divided into two types: original and derived. The original power is used to create a new constitution, while the derived power comes from the original and allows amendments or updates.
• 😀 The original constituent power can be historical or revolutionary. A historical power is used to create the first constitution of a country, while a revolutionary power breaks with the previous legal order to create a new constitution.
• 😀 The derived constituent power is secondary, limited, conditioned, and subordinate to the original power. It is used for amendments, revisions, and the creation of regional constitutions.
• 😀 The derived constituent power includes three categories: the derived power resulting from reforms, the derived power related to revisions, and the derived power for state constitutions.
• 😀 Constitutional amendments are governed by strict rules, requiring a qualified majority in both chambers of Congress. Amendments cannot alter certain unchangeable clauses, such as individual rights.
• 😀 The constitutional revision power allowed the Brazilian Congress to review the Constitution of 1988, making changes five years after its promulgation. This review process no longer occurs today.
• 😀 Diffused constituent power refers to informal constitutional change through jurisprudence, particularly through constitutional mutation. This process doesn't alter the words of the Constitution but shifts its interpretation based on current social, political, and economic factors.
• 😀 An example of constitutional mutation is the 2011 recognition of same-sex unions in Brazil, where the Supreme Federal Court broadened the understanding of family structures, aligning with contemporary social changes.
• 😀 When a new constitution is promulgated, laws that are compatible with the new constitution are 'received' and remain in effect. Those incompatible are not received and are effectively revoked, though they were constitutional under previous constitutions.
• 😀 Repealed laws cannot be automatically restored when a new constitution is promulgated, except if the new constitution explicitly allows it. This principle is known as repristination, and it's generally not allowed.
• 😀 Desconstitutionalization occurs when an old constitution is rendered a regular law rather than a constitutional one by the new constitution. This can happen if the new constitution explicitly permits it, but it doesn't occur automatically.

Q & A

What is the concept of constituent power?

Constituent power refers to the power to create or amend a constitution. It is usually held by the people, though it may not always be exercised directly by them. This power can be classified as either original or derived.

What is the difference between original and derived constituent power?

Original constituent power is the authority to create a new constitution, whether as the first constitution or a new one. Derived constituent power is the authority to make amendments or adjustments to an existing constitution, such as through reforms or revisions.

What is an example of original constituent power?

An example of original constituent power is the creation of a country's first constitution. For instance, Brazil's first constitution was enacted in 1824 by Emperor Pedro I, and this process was considered an exercise of original constituent power.

What are the characteristics of original constituent power?

Original constituent power is initial, meaning it starts a new legal order; unlimited, as it is not bound by any prior constitution; unconditioned, as there are no preconditions; and permanent or latent, since it can resurface at any time if there is a constitutional movement.

What is the role of the Constituent Assembly in creating a constitution?

In democratic countries, a Constituent Assembly is elected by the people to draft a constitution. This assembly exercises the original constituent power to create a new constitution.

What is derived constituent power and its types?

Derived constituent power refers to the authority granted by the original constitution to make amendments or revisions. The types include: the derived power that allows states to create their own constitutions, the reforming power to amend the constitution, and the reviewing power to revise the constitution periodically.

What is the reforming derived constituent power?

Reforming derived constituent power is the authority to make constitutional amendments through a formal process. In Brazil, this requires a three-fifths majority in both chambers of Congress, with two rounds of voting.

What is constitutional mutation, and how does it differ from constitutional amendment?

Constitutional mutation is an informal process where the interpretation of the constitution changes due to societal, political, or economic factors, without altering the actual text. For example, the Brazilian Supreme Federal Court's recognition of same-sex unions as family entities in 2011 was a form of constitutional mutation.

What happens when a new constitution is created? What about previous laws?

When a new constitution is enacted, previous laws are assessed to determine their compatibility with the new constitution. If compatible, they are 'received'; if incompatible, they are 'repealed'. This process is known as 'reception'.

What is the principle of repristination in constitutional law?

Repristination refers to the idea that a law, previously revoked by a newer constitution, could be reinstated if the new constitution allows for it. However, in Brazil, repristination is generally not allowed unless explicitly stated in the new constitution.