O constitucionalismo abusivo e a constituição brasileira de 1988

Abstract

David E. Landau's Abusive Constitutionalism focuses primarily on identifying political actors who use constitutional mechanisms, such as constitution amendments and constitutional replacement, to make a certain regime less democratic than before. The author's work is both descriptive and propositional; besides describing the phenomenon in concrete cases (such as the cases of Venezuela, Hungary, and Japan), Landau also proposes possible remedies to address it. The objective of this work is precisely to outline the Abusive Constitutionalism and its possible antidotes, confronting such mechanisms to those foreseen in the Brazilian Constitution of 1988, as it stands in the year 2022. We seek to analyze the phenomenon not only in face of the provisions expressly foreseen in the Magna Carta of 1988, but also of the Brazilian constitutional jurisprudence and in issues that transcend the law, such as, for example, natural law. The final objective, after this investigation, is to evaluate if the current Brazilian Constitution has mechanisms capable of facing or mitigating the phenomenon of Abusive Constitutionalism. For this purpose, the paper is structured as follows: the first part introduces the theme, the second part describes Abusive Constitutionalism, and the third part details the institutes related to the theme, foreseen in the Constitution and in Jurisprudence