The constitutionality bloc: the expansion of the dogmatic Constitution

Abstract

Article 46 of the Guatemalan Constitution recognized the preeminence of international human rights law over national law. The Constitutional Court, as the highest interpreter of the Constitution, has ruled on the content and scope of the aforementioned precept. In its jurisprudence, the Court has upheld two criteria regarding article 46 of the Constitution. In a first period, which corresponds to the period 1989-2011, the prevailing criterion was dominated by the concept of normative hierarchy, so that it would become invariable to even question the supreme character of the Constitution. Such a formalist-based perspective failed to reveal the ultimate meaning of the precept under interpretation, as it emphasized the hierarchy of norms, ignoring the effectiveness and protection of human rights. The jurisprudential innovation would come in 2011 through the application of the figure of the constitutionality block, of French origin, with which the entire discussion focused on the interest to guarantee the maximum protection of human rights, understanding that this would have been the true meaning of the constitutional precept. The criterion transformed the perspective of hierarchy into that of complementarity, providing a broad and expansive protection of rights.