When we think about the constitutionality or subsequent unconstitutionality of legal norms, it is good to keep in mind that we are talking about constitutional review, an instrument put in place to control sub-constitutional norms in light of the Constitution of the Federative Republic of Brazil (1988).

In this text, I want to present a theory that is much debated among constitutional scholars, namely, that which deals with supervening unconstitutionality.

How can you tell if a law is unconstitutional?

Ultimately, addressing the constitutionality or unconstitutionality of legislation means discussing constitutional review , a classic legal concept that allows for an evaluation of the legal system in light of the Federal Constitution.

To understand how constitutional review works, we need to understand its concept. Broadly speaking, constitutional review is a verification of the compatibility or adequacy of laws or normative acts in relation to a Constitution.

The parameter used to carry out the control is the Constitution with its express and implicit norms, and the object of the control of constitutionality is the laws or normative acts.

Presumption of constitutionality

It is important to highlight that laws and normative acts are born with a presumption of constitutionality. It should be clarified that this is a relative presumption of constitutionality; however, this presumption is of extreme importance to the Brazilian legal system.

The so-called presumption of constitutionality has two foundations!

The first principle is that the law is created by the people, through their representatives (whether in the National Congress, the Legislative Assemblies, or the City Council).

Therefore, considering that in our democracy there is a manifestation of the will of citizens through political representation, this is one of the good arguments for saying that the law is born with a presumption of constitutionality.

The second basis for presuming that a norm is constitutional is precisely the need for legal certainty. Now, for legislation to be enacted, it went through a legislative process, and consequently, there is a presumption that this process followed all the rules emanating from our Federal Constitution.

Constitutional dynamics

These notes on constitutional review were necessary so that you could understand the following: when there is a Constitution, sub-constitutional norms and normative acts will be evaluated in light of this Constitution to verify whether or not they are constitutional.

However, imagine that there is no longer a Constitution… or rather, a new Constitution has come into effect… what happens now?

This is the subject of study in constitutional dynamics. Professor Bernardo Gonçalves teaches us this in his Manual of Constitutional Law.

In the professor's words, the study of Constitutional Dynamics concerns the effects of constitutional norms over time (past – present – ​​future).

According to him, the emergence of a new Constitution brings a series of consequences for the legal system of a State, and these effects are studied by constitutional theorists.

The reception of sub-constitutional norms

When we talk about constitutional dynamics, that is, the effects of constitutional norms over time, one of the theories that comes to mind is that of the reception of sub-constitutional norms by a new Constitution.

This is a thesis that, in the words of Professor Bernardo Gonçalves, was strongly defended by Hans Kelsen, one of the great theorists of the constitutional movement.

According to legal scholars, the phenomenon of the reception of norms was necessary as a way to reconcile the Original Constituent Power (that is, a new Constitution) with the original legislative vacuum at the time of the establishment of this new constitutional order.

It is important to note that for a pre-constitutional norm to be accepted under the new Constitution, it must meet a basic requirement: it must not conflict with the new legal order, which is the new Constitution.

The normative status of the reception of sub-constitutional norms

The Constitution of the Federative Republic of Brazil, also known as the Citizen Constitution, has been in effect for a little over 30 years!

And although discussing the reception of sub-constitutional norms under a new Constitution is very abstract, it is important to highlight that this phenomenon occurred in our country not many years ago.

In general terms, the reception of a sub-constitutional norm can occur with the same status or with a different status. This choice will depend on the will of the Original Constituent Power.

In our current legal system, we have two good examples!

The first of these is the National Tax Code (CTN). When approved and established in the previous legal system, it was considered an ordinary law. With the advent of the 1988 Constitution, the CTN entered the new constitutional order as a complementary law.

These changes were also observed, for example, in the Penal Code, which was established as a Decree-Law in 1940, but upon entering our constitutional order, it has the force of an Original Law.

The thesis of supervening unconstitutionality

Here's the question: what if the previous rule is not compatible in content with the new constitutional text?

During the discussion, two theses were presented: namely, the non-reception of the previous norm, or the supervening unconstitutionality.

This doctrinal debate even included profound reflections from Professor Gilmar Mendes, Justice of the Supreme Federal Court. In the words of this great jurist:

“Placing the problem within one or another of these perspectives yields different practical consequences, the most notable of which is that only if the case is understood to be one of supervening unconstitutionality would there be the possibility for the Supreme Federal Court to assess the validity of the norm in a direct action of unconstitutionality.”

Given the legal consequences, as explained by Minister Gilmar Mendes, the Supreme Federal Court has adopted the thesis of "non-reception" of pre-existing norms into the Federal Constitution.

This is the precedent established in ADI No. 02-DF.

According to this rule, if the content of the previous legal norm contradicts the new Constitution, that norm will not be adopted (this phenomenon is also known as repeal).

Therefore, the argument of subsequent unconstitutionality is not accepted.

This is because, in the case of supervening unconstitutionality, we are talking about an incompatibility between a norm that predates the constitution and, in this sense, the problem would not be one of unconstitutionality or constitutionality, but of intertemporal law, namely, the reception or non-reception of this prior constitutional norm that is incompatible with the new Constitution.

Supervening constitutionality

This was also one of the arguments rejected in our legal system by the Supreme Federal Court.

Professor Márcio Cavalcante, responsible for compiling numerous court decisions on the website Dizer o Direito, provides an excellent example of supervening constitutionality.

Consider the following example:

Imagine that a Direct Action of Unconstitutionality is filed against a certain law alleging that it violates an article of the 1988 Federal Constitution.

However, before the case is judged, a constitutional amendment is enacted altering the aforementioned article that is "supposedly unconstitutional."

With this amendment, the article would no longer have the alleged unconstitutionality flaw. Therefore, the question is: should the Direct Action of Unconstitutionality (ADI) be judged? Or has subsequent constitutionality occurred?

The Supreme Federal Court's response was that the Direct Action of Unconstitutionality (ADI) should be judged.

This is because, in our legal system, the concept of subsequent constitutionality is not admissible. This conclusion is drawn from ADI 2.158, reported by Minister Dias Toffoli, judged on September 15, 2010.

Consequently, the unconstitutional law must be recognized as null and void in light of the constitutional provision that was in force at the time of its enactment.

What can we conclude?

For those working in the legal field, careful terminology is extremely important. This is because, although the arguments of subsequent constitutionality and unconstitutionality are tempting, those who study constitutional theory know that the consequences would not be the best.

Therefore, our role as professionals is one of constant study and reflection, always seeking the best doctrine so that we can improve our research.

Furthermore, be sure to follow my articles here on IDP Online and share them with your friends who also want to achieve professional success.

References

Text by Márcio Cavalcanti on “The alteration of the constitutional parameter before the ADI is judged does not prejudice the knowledge of said action” on the Dizer o Direito search engine.

The Constitutional Law textbooks by Professor Bernardo Gonçalves (JusPodivm Publisher) and Professor Gilmar Ferreira Mendes (Saraiva Publisher).