Conclusion
All these circumstances add to the conclusion that, despite the existence of explicit unamendable provisions, their constraint on the Supreme Court is relatively limited, which can, instead, use such openness to extend their scope to new situations as its power increases.
It can do so without the burden of strongly justifying it on even greater abstract concepts normally associated with the doctrine of implicit unamendable clauses.[1467] This is particularly true in cases like the Brazilian Constitution, whose contents originating from those unamendable clauses are open enough to the most divergent interpretations and controversies, while serving both as a guidance and an enabler of a more active behavior of the Supreme Court. Up until now, though, the Supreme Court has acted quite self-restrained in this matter, not following much of the claims the constitutional literature has raised in favor of a larger protection of rights, such as social rights. The balance between unamendability and constitutional change will be a difficult task for a Supreme Court still striving to position itself as an effective guardian of the Constitution amid many vested interests in the Brazilian society.[1468] On the other hand, nonetheless, those cases clearly point out that it has increasingly made use of its power to declare null and void constitutional amendments without even raising doubts on the legitimacy of such a task, interpreting it as an evident consequence of its very existence. There is no coincidence between this role and the rising power of the Supreme Court as a central institutional player in Brazilian democracy. Both are, in fact, parts of the same phenomenon.The Brazilian experience, where the Supreme Court has long decided in favor of its power to strike down constitutional amendments when in violation of the original constitutional provisions, is thus a relevant and rich source for comparative constitutional literature.
Though largely unknown and underexplored, the distinct nuances of the debates over unamendability have sparked in Brazil show that the very existence of a set of unamendable clauses in the Constitution, rather than having narrowed the Supreme Court’s margin of appreciation, has expanded it even further. The doctrine of implicit constitutional unamendability pervades every single interpretation of such broad and far-reaching unconstitutional clauses of Article 60, §4, of the 1988 Constitution, usually under the label of “core constitutional principles” to be protected. The distinction between explicit and implicit unamendable provisions, especially in unamendable provisions like the ones in Brazil, is, therefore, much less pronounced. Like in Colombia, where the “substitution of the constitution” doctrine is based on the premise that any constitutional change that is detrimental to the fundamental principles of the constitution is not an amendment, but a new constitution,[1469] in Brazil any amendment that affects those “core principles” beneath the explicit unamendable provisions are also interpreted as an attack on the constitution. In both cases, the Supreme Court, in Brazil, and the Constitutional Court, in Colombia, have established themselves as the logical authority to strike down a constitutional amendment which violates a “core principle” of the constitution. The distinction is that, in Brazil, the Supreme Court will justify it by making reference to at least one of those explicit unamendable provisions.In the end, unamendability is such a strong normative concept that, regardless of whether it is implicit or explicit, it will be there as a call for the Supreme Court’s final say, especially in times of their rising political influence. Its application is then much more a matter of how and to which extent the Supreme Court is willing to exert such a role, and how and to which extent the society at large is prone to accepting its Supreme Court’s rising authority over its constitutionalism. The constitutional literature has defended that the “invalidation of constitutional amendments should be a remedy of last resort”[1470] and be “limited in scope,”[1471] the question thus lying if, with such an incentive, Supreme Courts will not be tempted to go much further, especially when there are such open clauses as in the Brazilian Constitution.[1472] Up until now, the Brazilian Supreme Court appears to be using it with relative restraint, but, as this paper aimed to prove, it will not be the existence of explicit unamendable provisions that will prevent it from using it to enhance even further its powers.[1473]