Constitutional jurisdiction and the 1988 Constitution of Brazil: constitutional mutation

Abstract

This article aims to explore the issue of the constitutional mutation, which has been traditionally considered an informal amendment of the constitution, which means, without the interference of the Legislature in the creation of the law. On this perspective, it is necessary to delimitate the sign Law, designing it as an allographic art, meaning that the norm is the result of the interpretation of the text, which brings the possibilities and limitations that stem from this affirmation. Then, there is a discussion on the goal of the constitutional jurisdiction, finding that it is a factor for the constitutional stabilization and , therefore, has a decisive political role on the maintenance of the State. Under these premises, the theme has been revisited, switching between two directions: i) the reforming power; ii) constitutional interpretation. The first theory states that the constitutional mutation presents as an informal amendment of the Constitution, regardless of the text change. On the other hand, the second shows that it is not a change on the Constitution itself, but on its comprehension, therefore, it cannot be understood as a constitutional mutation, but only as a change in the contextualization of its text. It is concluded that non-existent, in fact, the change of the constitution by “constitutional mutation,” since the term is confined to the interpretation that creates a different standard that once emerged. However, such expression should continue to be used, for its wide dissemination occurred through the years, nevertheless, with a new meaning, adequate to the premises of the contemporary constitutionalism