This paper analyzes the counter-majoritarian difficulty with the aim of formulating a proposal that makes the democratic principle compatible with the maintenance of constitutionality control systems. For these purposes, the main arguments that seek to justify or solve the democratic objection are addressed: constitutional, legislative and popular supremacy. Subsequently, recognizing the primacy of democracy and the need to exercise judicial control of constitutionality with greater legitimacy, the proposal for a weak procedural constitutionalism is presented, which allows constitutional conflicts such as those represented by the constitutional reform – Colombian case -, can be debated under a public process that increases popular participation and public deliberation
Constitutions are political artifacts whose content and possible effects reflect the shared and conflictive preferences of the actors, the way that the are able to solve their differences and the constraints they face in particular historical contexts.
The power to amend constitutes a political power, and therefore, judicial review in the matter of constitutional amendment´s provokes the democratic debate pertaining to contra -majoritarian effect ´as well as the institutional debate about intrusion of judiciary into the political branches.
The underlying problem behind the judicial review of the constitution may be regarded as sovereign in terms of changing the provisions of the constitution, and even its entire structure. The paper aims to analyze the Argentine constitutional framework and describe the evolution of the jurisprudence of the Supreme Court of Justice on the matter of unconstitutional amendments in the case study of Argentina.
The establishment of the defining axes by the Colombian Constitutional Court and the Brazilian Supreme Court to apply the substitution test is a dogmatic construction, which enables Courts to change randomly the constitutional text, since there are not parameters at the Constitution. This contradicts the premise that, in a Constitution State, remains uncontrolled branches, or a branch that can overlaps the others.
In this sense, while Brazilian and Colombian Constitutional Courts keep the formal control of constitutional reforms advanced by the legislative, the Congress has the substantial control. It is important to evaluate to which extent the formal control has become a material control when the Courts apply the substitution test to declare the reforms carried out by the legislator unconstitutional.