The Absence of Janus: Procedural and Substantive Limits To the Amending Power in Brazil

Contemporary constitutional democracies assume a dualistic political conception to distinguish the creation of the constitutional law from the ordinary legislation. Both procedural limits to the amending power and unamendable clauses aim to protect the constitution against its substitution or ordinary modification. However, the amending power does not fall into the same category as the original constituent power or the constituted power. Although constitutional amendments do not involve the same level of popular engagement, they should manifest a higher level of public deliberation than ordinary legislation. However, the ease of the amending process with its consequent high rate of the Brazilian Constitution; the removal of popular participation in the amending process; and the open clause expanding unamendable clauses towards an infinite list (art. 5º, § 2º) demonstrate the lack of commitment of the Brazilian Constitution with the specific democratic status of the amending power.