Abstract

ARAGON REYES, Manuel. Two fake problems and one real: "neoconstitutionalism", "guarantism" and judicial application of the Constitution. Cuest. Const. [online]. 2013, n.29, pp.3-25. ISSN 1405-9193.

The "neoconstitutionalism" understood as "overcoming" of the old idea of a Constitution to replace it with one that does prevail power over control is a false problem, says the author. Even the prefix "neo" instead of enriching it contradicts the accompanying name. The "guarantism" is the second false problem, since it is a term used sometimes in a negative sense conceiving it as an excess of juridic problems that can obstruct the ability of the public power action. The real problem is the judicial application of the Constitution, therefore, the actual constitutionalism has not led to the crucifixion of the positivism but " the positivization of natural law," as it has been integrated into the constitutional rules principles and values, that axiologically guide the mode of being of the Constitution. Without constitutional justice, the Constitution could not exist, since it would be a blank slate that the legislature could fill with its whim but without constitutional justice respectful of its own interpretative limits the Constitution could not exist.

Keywords : neoconstitutionalism; guarantism; constitutionalism; Constitution; judicial application of the Constitution; Constitutional justice.