General Conclusions
(i) Majoritarian democracy faces the paradox that its rationality depends on quantitative rather than qualitative criteria. For this reason it has created the idea of a constitutional democracy that attempts to limit majoritarian democracy by an inherent idea of a Constitution related with elements such as human rights, separation of powers and democracy.
This idea cannot be the subject of amendment.(ii) In order to limit majoritarian democracy, constitutionalism has created various instruments such as judicial review, constitutional rigidity and, in some cases, the most growing form, the doctrine of the jurisdictional limits of the power of amendment, which allows the Constitutional Court to declare unconstitutional amendments to the Constitution.
(iii) The doctrine of substitution of the Constitution in Colombia that has been implemented since the Judgment C-551 of 2003, which led to the declaration of unconstitutionality of five amendments to the Constitution, has been a good way to protect constitutional democracy against a majoritarian conception of democracy, for example in cases where the President wants to use the majority in Congress to remain in power - Case of the Re-election of the President, Judgment C-141 of 2010 - or to avoid the effectiveness of constitutional judgments - Judgments C - 588 of 2009 and C-249 of 2012.
(iv) The methods of rationality that the Court have used led the Constitutional Court to rationalize and balance decisions related with the unconstitutionality of constitutional amendments in order to identify the structural element in a particular case.
(v) It does not seem helpful to make either a maximalist or minimalist list of irreplaceable elements of the Constitution. These non-replaceable elements ultimately depend on the interpretation of their content and meaning by Court.
However, theoretical tools and rational elements should be implemented to limit the power of the Court in the use of that doctrine. It should be deployed only as a last resort to protect the constitutional democracy from the abuses of the majorities.(vi) There is evidence that new problems are arising with the replacement doctrine implemented in Colombia, such as the eventual collision of irreplaceable principles with the interpretation or conditioning of the constitutional amendments. This problem requires new theoretical tools that allow a rational decision in such cases.
(vii) Finally, the hypothesis that the doctrine of the substitution of the Constitution has been a way to limit the excesses of majoritarian democracy is well founded, but the Court must set new jurisprudential parameters for the implementation of this doctrine that are reasonable and weighted.
Acknowledgments Thanks to David Landau, Masson Ladd Professor of Law in Florida University, for helping me with the corrections of the translation of the article to english, and Thomas da Rosa Bustamante for the invitation to the I International Congress on Constitutional Law and Political Philosophy in Belo Horizonte.