Identidade constitucional: conceito, (trans)formação e crise

Abstract

The dissertation deals with the concept of constitutional identity from three perspectives: the concept of constitutional identity, the process of formation and transformation of constitutional identity, and the phenomenon of the constitutional identity crisis. The problem that we seek to face with this study concerns the potential identity crisis that the 1988 Constitution has been going through since 2013, going through key moments that include the impeachment of Dilma Rousseff, the enactment of Constitutional Amendment no. 95/2016 and the election and first year of Jair Bolsonaro's government. Based on a review of the legal literature and comparative case-law, which takes Indian, Colombian and European experiences as a paradigm, a concept of constitutional identity is sustained, the content of which involves substantial decisions and values - the basic commitments and projects of a constitutional community. -, procedural - decisions about the exercise of constitutional government - and relational - the position of the constitution in relation to other constitutional experiences. In terms of characteristics, it is maintained that constitutional identity is plural, socially and historically constructed, and changeable. As for its functions, it is proposed that the constitutional identity operates a constitutive function of the constitutional community; a normative function in the broad sense that allows social criticism of attempts at constitutional rupture; and a normative function in the strict sense that produces its own legal efficacy that invalidates acts contrary to the constitutional identity and extracts positive commands directed to the State in order to effect such an identity. As for formation and transformation, we analyze the foundational and constructivist theories of constitutional identity and we argue that constitutional identity is formed and transformed by a process of struggle for the constitution, understood based on the idea of struggle for recognition developed by Axel Honneth and of struggle for the right presented by Rudolf Von Ihering. It is maintained that the struggle for the constitution involves a struggle for constitutional or constitutionalized narratives, meanings and rights and that it is developed by different institutional or non-institutional agents throughout different social spaces. It is proposed that once formed, constitutional identity is subject to incremental and foundational transformations, which deepen and alter its meaning, sometimes through diffuse acts, sometimes at identifiable moments in constitutional history, institutionalized by different mechanisms: interpretation and constitutional change, the constitutional amendment, and the new constitution. It is proposed that the transformations can also be triggered by crises in which the constitutional community challenges the content of the constitutional identity, opening the way sometimes to the deepening of the constitutional project, sometimes to the rupture of the project. It is proposed to analyze the phenomenon from the Brazilian perspective, initially having as a paradigm the LGBT and black movements in the Constituent Assembly and after 1988 as demonstrations of the transformations that the emancipatory identity of the 1988 Constitution went through. The potential identity crisis that started in 2013 is analyzed, concluding that it is possible that Brazil is facing a constitutional crisis and therefore proposing measures to overcome it.