The political strength of the derived constituent power on the basis of popular sovereignty: in defense of supervening constitutionality and its validation effect

Theories about the effects of judicial review of legislation have different origins and consequences in the distribution of the legislative function. The theory of nullity of the unconstitutional rule emerged with the judicial review as a political device for the empowerment of the Judiciary to face the representative bodies. The theory of the annullability of the unconstitutional rule, on the other hand, included respect for the constitutional interpretation of the legislator and for legal certainty based on the presumption of constitutionality. In Brazil, the nullity theory was adopted, mitigated by the modulation of effects. The supervening constitutionality is not admitted by Brazilian jurisprudence and doctrine, however, the Portuguese Constitutional Court has already applied it. The theory of constituent power split the elements of popular sovereignty, unlimited power fell to the original constituent and permanent, but limited power fell to the derived constituent. The double revision theory is able to reunite the elements of popular sovereignty. The admissibility of the supervening constitutionality is supported by popular sovereignty. The research method is deductive. The research technique is bibliographic.