Magna Carta (Constitution)

1. Definition, Concept, and Legal Nature

The Constitution, frequently referred to by the historical term "Magna Carta," is defined as the fundamental legal statute of a nation. From the perspective of the Constituent Power, it possesses the legal nature of a supreme and original norm, endowed with absolute hierarchical superiority over the infraconstitutional legal order. It is a complex of norms that regulates the form of State, the form of Government, the mode of acquisition and exercise of power, as well as the list of fundamental rights.

Doctrinally, the legal nature of the Constitution is multifaceted: for Hans Kelsen, it is the fundamental posited norm; for Carl Schmitt, it is a fundamental political decision; and for Konrad Hesse, it possesses a normative force capable of shaping social reality. In Brazil, the 1988 Constitution is classified as promulgated, written, formal, dogmatic, rigid, and analytical.

2. Historical Origin and Evolution in Law

The term "Magna Carta" refers to the Magna Carta Libertatum of 1215, imposed by English barons upon King John Lackland. Although it was a document of estates, it laid the foundations of Constitutionalism by establishing due process of law and the limitation of monarchical arbitrariness.

The evolution toward modern constitutionalism was consolidated with the liberal revolutions of the 18th century (US Constitution of 1787 and the French Declaration of 1789). In Brazil, the historical path encompasses seven main texts:

• 1824: Granted, imperial in character, providing for the Moderating Power.
• 1891: Institution of the Republic and federalism.
• 1934: Influenced by the Weimar Constitution, it introduced social rights.
• 1937: Granted, authoritarian in character (Estado Novo).
• 1946: Post-war redemocratization.
• 1967/1969: Period of the military regime, with centralization of power.
• 1988: The "Citizen Constitution," which restored the Democratic State of Law and expanded the list of fundamental rights.

3. Legal Provision and Normative Structure

The 1988 Constitution of the Federative Republic of Brazil (CRFB/88) is structured into a Preamble, a Dogmatic Part (Articles 1 to 250), and the Constitutional Transitional Provisions Act (ADCT). Cardinal provisions include:

• Art. 1: Foundations of the Republic (Sovereignty, Citizenship, Dignity of the Human Person).
• Art. 5: Individual and collective rights and duties (Entrenched Clauses).
• Art. 60, § 4: Material limits to constitutional reform (Federal form, direct vote, separation of powers, and individual rights).
• Art. 102: Competence of the Supreme Federal Court (STF) as the guardian of the Constitution.

4. Practical Application and Consolidated Jurisprudence

The application of the Magna Carta occurs through constitutional review (diffuse and concentrated). The STF, in its jurisdictional function, has consolidated vital understandings for democratic stability:

• Block of Constitutionality: The understanding that norms not contained in the main text, such as international human rights treaties approved by the procedure of Art. 5, § 3, possess constitutional status.
• Unconstitutional State of Affairs: Recognized in ADPF 347, regarding the Brazilian penitentiary system, allowing Judiciary intervention in public policies to remedy massive rights violations.
• Horizontal Effect of Fundamental Rights: Direct application of constitutional norms in relations between private individuals, as settled in RE 201.819.
• Constitutional Mutation: An informal process of changing the meaning of a norm without altering the text, such as the interpretation given to stable unions for same-sex couples (ADI 4.277).

5. Related Principles and Doctrinal Divergences

The study of the Constitution is governed by specific principles of interpretation:

• Supremacy of the Constitution: Nothing in the legal system may contradict the constitutional text.
• Unity of the Constitution: The text must be interpreted as a harmonious system, avoiding contradictions between norms.
• Proportionality and Reasonableness: Vectors for resolving conflicts between fundamental rights.

In the field of divergences, the debate between Originalism (interpretation based on the founders' intent) and Living Constitutionalism (adaptation of the norm to contemporary values) stands out. In Brazil, the current of Normative Force and Neo-constitutionalism prevails, which defends the centrality of the Constitution and the value-laden nature of legal principles.

6. Contemporary Relevance and Practical Impacts

Currently, the Magna Carta faces the challenges of Digital Constitutionalism. Constitutional Amendment No. 115/2022 included the protection of personal data in the list of fundamental rights (Art. 5, LXXIX), reflecting the adaptation of the text to the technological era. The judicialization of public policies and judicial activism are central themes, where the Constitution is invoked to guarantee social rights in the face of legislative omission.

The practical impact of constitutional supremacy is the guarantee that no law (ordinary or complementary) or administrative act possesses validity if it confronts the fundamental precepts established in 1988, ensuring legal certainty and the maintenance of the Democratic State of Law.