CONTRAMAYORITARIAN DIFFICULTY: PRECARIOUS LEGISLATOR OR EMPOWERED JUDGE

Abstract

Contextualization: Part of the countermajoritarian argument is used to justify the actions of our Constitutional Courts. This changes the traditional location of the judiciary. Since the rulings of judges, especially those of constitutional jurisdiction, become crucial elements of public discussion. This implies that our judges are no longer members of that branch of public power that is despised or less valued to become protagonists of public discussion.

Objective: This work, from the analysis of cases, proposes how the new conception of the constitutional norm and the amparo trial interact. To achieve the above, an analysis will be conducted to establish some of the descriptive notes of neoconstitutionalism.

Methodology: The deductive method is used to locate the touchstone of the jurisdictional guarantee system or how it has had to be modified due to the new understanding of the supreme norms; This gives way to the descriptive method based on the compilation and systematization of sentences that have given a change of direction to the dogmatics of the guiding principles of the amparo trial, and with it also apply the jurisprudential systematization.

Results: In summary, in the democratic objection the paradox of the constitutional judge is alleged, which is the paradox of the judge in a democratic society. But it derives from the need for jurisdictional control of ordinary laws and respect for human rights, whose author is the legislator (or another body other than the constituent power) since legislators are presumed to express the will of the people or at least the majority.