Foundations for a constitutional jurisdiction: The still inevitable debate about who should (not) have the final word about the constitution

Abstract

The following paper investigates the main ideas over the contemporaneous debate about the constitutional interpretation legitimacy. In other words, this study is based on the necessity to investigate several topics that build major political institutions, especially the theoretical framework that underlies over the Judiciary and the Legislative Branches. This study is set in the dialectical method: first, we will analyze the foundations that support the judicial supremacy (thesis) and then, analyze the foundations that support the legislative supremacy (antithesis), with special attention to the topics that are against the judicial supremacy. Finally, we will point the issues that reject any kind of supremacy (synthesis). These topics are known as “Dialogical Promise” and they represent a type of third alternative between the other two main ideas. By investigating this theory, we will be able to see the sophistication that there is in this debate as well as if the performance of the institutions is aligned with its legitimacy.

Keywords: legitimacy, constitutional interpretation, constitutional jurisdiction, Legislative Power, supremacy.