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This article analyses the applicability of Living Constitution doctrine in Brazilian context, based on the Allegation of Disobedience of Fundamental Precept (ADPF) 54 and the Direct Action of Unconstitutionality (ADI) 4277 judgments, about the legal recognition of homosexual common-law marriage. It aims to investigate the compatibility of Living Constitution doctrine with the Federal Supreme Court (STF) decisions. Supporting a Living Constitution, able to change over time and embrace new circumstances, tends to confront with the original sense intended by the democratically legitimized Constituent. Therefore, it matters analyses how the STF deals with their judgments in this tension between updating and majoritarianism. Methodologically, the research confronts parliamentary and popular proposals about homosexual common-law marriage, presented in the elaboration commissions of Federal Constitution of 1988 preliminary draft, with the STF judgments about this subject. Starting from the Living Constitution doctrine, theorized by David Strauss and Cass Sunstein, have been analyzed criticisms from originalist authors, as William Rehnquist. On the theme in vogue, the research identifies an example of how does the tension between Living Constitution and democratic majoritarianism appear in the Brazilian constitutional jurisdiction. In conclusion, it is presented the fragility of Constitution updating that is not coherent with the Court’s jurisprudence. In Brazil, the lack of an established precedent culture allows Living Constitution doctrine to degenerate into judicial decisions, more resultant of STF conjuncture wills than a consistent evolution of the Court’s decisions.

revista da faculdade de direito da ufg

A constituição brasileira está viva? Living constitution e a atualização da constituição pelo Supremo Tribunal Federal na questão das uniões homoafetivas