Constitutions without constitutionalism and the disproportion of proportionality: two aspects of the crossroads of the fundamental rights in neoconstitutionalism

Abstract

In the Western world’s comparative law, the North American and the German dogmatic traditions lead the investigations regarding the theoretical and practical questions arising from the protection of interests by means of fundamental rights. Two challenges that arise at the conception which, for the fundamental rights, derives from “neoconstitutionalism” are discussed in this paper: I – the limits of constitutional reforms, or the impossibility for constitutions to exist without constitutionalism; and II – the disproportional use of the principle of proportionality in the application of fundamental rights. In the first aspect, the paper contends that the content of constitutional reforms must not derogate any of the specific fundamental rights, nor any of the procedures which make it possible for the political system to institutionalize a deliberative democracy. In the second aspect, the paper discusses the problems regarding the abstract justification of the use of the principle of proportionality and defends that a justification for the judicial use of this principle will always exist as long as there is a rational and legitimate way to apply, which, in addition, allows fundamental rights to preserve their priority within the juridical system.