UMA ANÁLISE SOCIOJURÍDICA SOBRE O PODER CONSTITUINTE E A POSSIBILIDADE DE ALTERAÇÃO DAS CLÁUSULAS PÉTREAS INSERIDAS NA CONSTITUIÇÃO DA REPÚBLICA FEDERATIVA DO BRASI

Abstract

This paper proposes a socio-juridical analysis of the Constituent Power and the possibility of alteration of the Fundamental Clauses added to the Constitution of the Federative Republic of Brazil. This approach is justified based on the constant discussions on the matter involving the (un)tangibility of fundamental clauses and their applicability in democratic regimes, particularly in regard to individual rights and guarantees, as they are listed by the Federal Constitution as a fundamental clause that is not subject to change. This work aims to analyze the possibility of altering fundamental clauses of the Constitution of the Federative Republic of Brazil in the wake of the Constituent Power, with emphasis on the social and juridical aspects surrounding the subject. In order to achieve this goal, the literature review represents the methodological basis of this research, due to the fact that most of the existing scientific works apply a literature review at some point, given the considerable amount of information provided by this method to the researcher. The results of this study showed that the institute of fundamental clauses added to the 1988 Constitution had the goal of protecting the citizens from the state's misconduct experienced during an intense and long dictatorial period of time. The same clauses also aimed for a greater legal security in the aspects related to individual rights and guarantees. Even considering the good intention of the constituent legislator, the presented list is extremely extensive, creating considerable discussions such as the ones about the scope of what can or cannot be considered as a fundamental clause. Therefore, the Federal Supreme Court has a prominent role in interpreting and setting the scope of the fundamental clauses, being the constitutional guardian against any attempt of breaking the constitutional order