La mutación constitucional en el Ecuador: ejercicio mediante el control de normas constitucionales referentes a derechos humanos

Abstract

Constitutional mutation was born in the Civil law system at the beginning of the 20th century, as a consequence of the extreme rigidity of the constitutions at that time. After World War II, due to the importance that the defense of a fundamental system of rights acquired, this phenomenon began to be considered a mechanism that grants dynamism to constitutional texts. This work describes four fundamental theoretical currents in a highly complex debate, with a certain consensus when referring to the operability of mutation within the interpretative powers of the constitutional courts. Having as main objective the identification of arguments within the sentence No. 11-18-CN/19, issued by the Constitutional Court of Ecuador, that conclude the existence of constitutional mutation through the concrete control of constitutionality of constitutional precepts that refer to human rights, the case of same-sex marriage is studied in depth with help of the aforementioned theories. As follows, the aim is to find a theoretical vantage point that allows the elucidation whether the interpretative expansion of the content of the right to marriage was a mutation. Once this hypothesis has been solved, the reader is introduced to certain contents that would form part of the system of rights as of the sentence under study and certain constitutional conditions that must be observed in Ecuador, when new mutations in the content of rights are proposed in the future. Finally, the investigation identifies four mutative scenarios of the content of fundamental rights that would be sought by constitutional system drawn up in 2008