The 1988 Federal Constitution, recognized for its solid and comprehensive structure, is the main pillar of the Brazilian legal system. This document, a product of the Original Constituent Power, established the foundations of a new State, breaking completely with the previous legal order.

This rupture allowed for the creation of new norms, suited to the social and political demands of the time, as well as providing a reconfiguration of state powers.

One of the most striking elements of this Constitution is its rigidity, reflected in the difficulty of making substantial changes to its text. This is due to the so-called entrenched clauses, provisions that create insurmountable barriers to reforms in certain areas, preserving constitutional stability and ensuring that sudden changes do not compromise the essence of the legal system.

In this context, the Derived Constituent Power assumes the function of modifying the Constitution through amendments, following its own procedure outlined by the Original Constituent Power. Although the constitutional text can be altered, this possibility is not unrestricted and is subject to limits imposed by the Constitution itself.

These limits were established by the original constituent assembly to ensure that fundamental issues, such as the separation of powers and individual rights, would not be altered in a way that would compromise intergenerational rights won through significant social struggles, for example.

In this article, we will explore the concept of entrenched clauses, the challenges faced by the Derived Constituent Power, and the constitutional limits that shape the reform process, ensuring the protection of the essential principles that underpin Brazilian democracy.

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What are entrenched clauses?

The entrenched clauses are provisions of the Constitution that cannot be altered by constitutional amendment. They are stipulated in Article 60, §4, of the 1988 Federal Constitution. These clauses are considered fundamental for preserving constitutional identity and ensure the maintenance of essential principles for democratic order and the protection of citizens' rights.

According to article 60, §4, of the Brazilian Federal Constitution of 88, the entrenched clauses include:

• I – the federative form of the State;
• II – direct, secret, universal and periodic voting;
• III – the separation of Powers;
• IV – individual rights and guarantees.

These elements form the basis of the Brazilian Constitution, protecting the democratic system. For example, Brazil cannot cease to be a federation or eliminate direct voting, as this would compromise the country's political organization. Similarly, individual rights and guarantees are protected from any attempt at abolition.

Limits to the Derived Constituent Power

The Derived Constituent Power is subordinate to the Original Constituent Power and limited by strict rules. Its function is to adapt the Constitution to the needs of society, but always respecting the barriers imposed by the original constituent power.

Among the limits to the Derived Constituent Power, we can highlight:

1. Circumstantial Limitations: 

The circumstantial limitations are outlined in Article 60, §1, of the Constitution and prevent constitutional reform during critical moments, such as:

• Federal intervention;
• State of defense;
• State of siege.

These restrictions aim to ensure that the Constitution is not altered during times of instability, preserving the political balance necessary for deliberations on its modification.

2. Material Limitations 

Material limitations are represented by entrenched clauses, which establish that certain matters cannot be modified by constitutional amendment. They ensure that the essence of the Constitution is preserved, preventing changes to issues such as the separation of powers or individual rights.

For example, if an amendment attempted to transform Brazil into a unitary state, such a proposal would be unconstitutional, since the federal form of state is protected by entrenched clauses.

3. Formal Limitations

Formal limitations relate to the procedure for approving amendments. The Constitution requires a qualified quorum for the approval of amendments: three-fifths of the members of each house of the National Congress, in two rounds of voting . Furthermore, a rejected amendment proposal cannot be reintroduced in the same legislative session.

Implicit Limitations and the Double Revision Theory

In addition to explicit limitations, legal doctrine identifies implicit limitations. One of the theories that discusses this topic is the Double Revision Theory. According to this theory, it would be possible to revoke Article 60, §4, which protects the entrenched clauses, and subsequently amend the protected clauses.

However, the prevailing doctrine rejects this possibility. The entrenched clauses are protected by implicit limits, making it impossible for them to be revoked or modified, even indirectly. In this way, the essential core of the Constitution remains untouched.

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The Role of the Supreme Federal Court

The Brazilian Supreme Federal Court (STF) plays a fundamental role in protecting entrenched clauses and controlling the constitutional amendment process. The STF can be called upon to carry out preventive constitutional review, preventing unconstitutional amendments from advancing in the legislative process.

Furthermore, the Supreme Federal Court (STF) exercises repressive control over constitutionality, and may declare unconstitutional amendments that have been approved in violation of the limitations established by the Constitution.

Difference between Original and Derived Constituent Power

To understand the limitations of the Derived Constituent Power, it is fundamental to differentiate it from the Original Constituent Power. The Original Constituent Power is that which creates the Constitution and establishes a new legal order. It is unlimited, autonomous, and not conditioned by any prior norm.

On the other hand, the Derived Constituent Power is subordinate and limited. It has the function of modifying the Constitution, but it must follow the limits imposed by the original constituent power. This subordination prevents the Derived Constituent Power from altering matters protected by entrenched clauses.

Challenges of Constitutional Reform

Constitutional reform in Brazil faces several challenges. On the one hand, there is a need to make the Constitution more flexible so that it keeps pace with social changes. On the other hand, the rigidity of the entrenched clauses protects the stability of the fundamental principles that underpin democracy.

Another challenge is the high quorum required for the approval of amendments, which can hinder the reform process during times of political polarization. This balance between rigidity and flexibility is one of the greatest complexities of the constitutional reform process in the current scenario.

Conclusion

The entrenched clauses and the Derived Constituent Power play fundamental roles in preserving the stability and integrity of the 1988 Constitution. The Derived Constituent Power allows the Constitution to be adapted to new realities, but always within the limits imposed by the original constituent power.

These limits are essential to ensure that fundamental rights, the separation of powers, and the federal form of government remain intact, protecting the structure of the democratic rule of law. The challenge of balancing the need for reforms with the protection of constitutional principles remains a central task for the Brazilian legislature.

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References

BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on: September 18, 2024.

LENZA, Pedro. Constitutional Law. 28th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (Outlined®). ISBN 9788553621958. Available at: https://integrada.minhabiblioteca.com.br/books/9788553621958. Accessed on: September 18, 2024.

MENDES, Gilmar Ferreira; BRANCO, Paulo Gustavo Gonet. Course on Constitutional Law. 19th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (IDP). ISBN 9786553629417. Available at: https://integrada.minhabiblioteca.com.br/books/9786553629417. Accessed on: September 20, 2024.

NOVELINO, Marcelo. Course on Constitutional Law. 11th ed. Salvador: Editora Jus Podivm, 2016.