THE BRAZILIAN SUPREME COURT AS A DIFFUSE CONSTITUENT POWER AND THE LIMITS OF CONSTITUTIONAL AMENDMENT AND JUDICIAL ACTIVISM

Abstract

This article analyzes the role of the Brazilian Supreme Federal Court (STF) as a manifestation of diffuse constituent power, demonstrating that, although it possesses significant interpretative capacity in safeguarding the Constitution, it remains strictly subordinate to the structural limits defined by the Original Constituent Power. Three central themes are developed: constitutional mutation as a technique derived from normative updating, authorized within the scope of constitutional jurisdiction provided for in Article 102 of the 1988 Constitution; the democratic risks arising from judicial activism; and (iii) the fundamental distinction between the Original Constituent Power and the derived powers, among which are the Reformative Constituent Power and the STF itself, as a constituted body. It argues that all instituted powers, including the Constitutional Court, are subject to the limitations imposed by the original constituent power, therefore there are no multiple instances of constituent power, but only one legitimate and foundational origin. Thus, the study presents, in a synthetic way, the Theory of Constituent Power and develops a critical analysis of the constitutional limits of the Supreme Federal Court's actions in exercising diffuse constituent power. The research adopts a bibliographic methodology and uses the hypothetical-deductive method.