Direitos fundamentais e competência de reforma constitucional: os limites materiais das emendas à constituição

Abstract

This study aims to investigate the constitutional amendments that restrict the fundamental rights. It is specifically related to the interpretation that must be applied to the entrenchment clause which consists of the deliberation of constitutional amendments prohibition that tends to abolish individual rights and guarantees. Therefore, we discuss about the dogmatics of fundamental rights, specially, the ambivalent issue of these rights (that could be norms expressed through rules or principles), its scope, the possibility of its restriction and the discovery of its essential core, in a concrete case, from the examination of competing or conflict of fundamental rights though proportionality rules. We also discuss the nature of the competence of constitutional reform and its material limitations. Thus, this study aims to reexamine the way the Brazilian doctrine has seen the matter, in order to rationalize and offer safer control parameters to measure if determined constitutional amendment has satisfactorily acquitted of argumentative onus imposed by the constituent power to the reform competence