La determinación del núcleo esencial del derecho: una metodología para evaluar la constitucionalidad de las demandas de acción de protección

Abstract

In the customary practice of protective action claims, constitutional judges face the challenge of plaintiffs activating constitutional justice for matters that could be satisfactorily resolved through ordinary proceedings. The correlative responsibility of these judges would be to dismiss such claims as improper. However, this entails the obligation to provide sufficient motivation, which is not always easy to provide, especially when it is considered that judges have only insufficient or inapplicable interpretative tools for the norms of constitutional rank, such as the methods of subsumption, weighting and application of jurisprudential rules.

Given the limitation of the traditional methods of legal interpretation, this paper seeks to direct the gaze towards the theory of the essential core of fundamental rights as a possible method that may be functional to solve the aforementioned problem. In order to fulfill this objective, the first step will be to adapt the guarantee of the essential core of fundamental rights to the context of the Ecuadorian Constitution and the jurisprudence of the Constitutional Court of Justice. Finally, integrating said guarantee as a method within a well-organized macro-system of all the existing techniques of constitutional interpretation, through which constitutional judges will be provided with a guide to facilitate the determination of when a right has been violated in its constitutional dimension.