(In)aplicabilidade da teoria das normas constitucionais inconstitucionais no Brasil: uma análise sobre a ADI nº 815-3/DF e a posição da Suprema Corte brasileira

Abstract

The present study performs a critical study on the main aspects of the theory of constitutional rules unconstitutional, developed by German jurist Otto Bachof on the possible existence of a hierarchy of constitutional rules as well as analyzes the position adopted by the brazilian Supreme Court, in the judgment of the Direct Action of Unconstitutionality (DAU) nº 815-3/DF, about this thought. To do so, puts the time in which the thought of Bachof was developed, highlighting the basic assumptions of this theory German jurist, as well as studying the aforementioned Action of Unconstitutionality, with focus on the procedural process she had and on the recorded arguments by that Court to defend the irrelevance of that thought in Brazil, which was based on the absence of a hierarchy of constitutional norms from the Constituent Power Originating in, on the fact that this cannot be controlled and in violation that this theory leads to the principle of unity of the Constitution. Finally, analyses the possible inconsistencies present in the arguments used to support that decision, based both in legal literature homeland as in jurisprudence adopted by the egregious Court mentioned.