La rigidez constitucional mínima como una forma débil del constitucionalismo

Abstract

Minimum constitutional entrenchment as a weak form of constitutionalism

Some authors who oppose the currently dominant constitutional practice have defended some “minimum” constitutional entrenchment as a weak form of constitutionalism that allows democratic majorities to override  judicial determination of fundamental rights. This paper offers some critical reflections on this proposal, adopting an approach based on (what I try to identify as) the intrinsic rationality of contemporary constitutional practice in liberal democracies. The critical argument evolves as follows. First, the formal (or institutional-based) distinction between “strong” and “weak” systems of constitutional review is discussed. Secondly, the alleged relevance of constitutional amendments in the historical realization of fundamental rights is objected to. Finally, the minimum constitutional rigidity is rejected as part of a genuinely alternative constitutional model (here referred to as “strong popular sovereignty”) designed to replace the dominant constitutional practice.