The Constitutional Jurisdiction and the Fundamental Right’s Guarantee

Abstract

In the rule of law, the Constitution finds itself above any law and in the frame of the Federal Supreme Court, the Constitutional Courts are obliged to defend it. It can be verified that the Constitutional Jurisdiction has its origin on the post-war, after the innovations brought by the new American Constitutional Law. Through its decisions based on stare decisis and allied with Kelsen’s ideas arises in Europe the Constitutional Justice which is a specific constitutional sphere responsible for the safeguard and superiority of the Constitution. This justice represented indeed a defense source, a guarantee’s mechanism of maintenance of a democratic constitutional order in face of aggressive and corrosive anti-democratic actions in relation to the Constitution. Constitutional Jurisdiction has been increasingly considered as a necessary element of the definition of rule of law itself. Certain is that this jurisdiction cannot have the same composition of ordinaries jurisdictions, under the danger of becoming illegitimate. It also should present the three mandatory requirements which are present on the political composition of the Constitutional Justice so that its legitimacy is reinforced: pluralism, representation and complementarity. Keywords: Constitutional Justice, Constitutional Jurisdiction, Federal Supreme Court, Fundamental Rights, Rule of Law