The block of constitutionality in Colombia. A jurisprudential analysis and a doctrinal systematization essay

Abstract

The notion of constitutional block can be formulated using the following paradoxical picture: The constitutionality block refers to the existence of constitutional provisions that do not appear directly in the Constitution. What does that mean? Something that is very simple but at the same time have complex legal and political consequences: a constitution can be normatively more than the Constitution itself, that is, the constitutional rules, or at least legal supra, may be more numerous than those that can be found in the body of the written constitution. For example, in the United States is clear that women have a constitutional right to abortion, as the Supreme Court of that country in the Roe v Wade ruling in 1973 said. Similarly in France is undisputed that the right to organize and strike have constitutional status, such as the Constitutional Council ruled that country in several decisions. However, if someone read all the constitutions of the United States or France, 1958, nowhere in these texts find an explicit mention of these rights, however they have constitutional status.

This idea of the constitutional then raises the question: if with very few exceptions, such as England, constitutions are usually written texts, then how can there be that constitutional provisions are not included in the Constitution itself? Does not this imply a profound contradiction that erodes the very supremacy of the Constitution?

To answer this question, it is necessary to note that constitutions are not completely closed codes, since the constitutional texts can make referrals, express or implied, other rules and principles, without being in the constitution, have relevance in the constitutional practice to the extent that the constitution itself states that these other rules are a kind of constitutional value.