The Judiciary and Democratic Constitutionalism in Brazil

The Interplay of Law and Policy

3.1. Continued (See Diagram)

The Constitution arises from consensus, and its interpretation reflects political decisions. A democratic judiciary presupposes a democratic society acting upon the Constitution's democratic principles.

Democratic Constitutionalism: A Guarantor of Rights

Democratic constitutionalism safeguards rights and embodies popular sovereignty. The expansion of the judiciary, representing the legalization of politics, should not threaten the foundations of constitutionalism. While the judiciary's power has grown, it must operate within the Constitution's boundaries. The Constitution defines these judicial limits. The legalization of politics in Brazil poses no threat to the Constitution, given its respect for the separation of powers, which ensures balance.

Judicial Decisions and Constitutional Principles

Judicial decisions are principled, grounded in the Constitution and aligned with the ideals of a democratic state. The judiciary interprets, not creates, law. Popular sovereignty, conversely, creates law. Therefore, the judiciary is neither prophetic nor divinely ordained but constrained by the Constitution and democratic constitutionalism. This principle guides judicial interpretation, binding courts to the Constitution's foundations.

The Role of Constitutional Jurisdiction

Brazilian constitutional jurisdiction safeguards the creation of democratic law. Values exist that transcend the Constitution, holding substantive importance. Some courts deem laws unconstitutional, even if they reflect accepted values, if they are not explicitly within the Constitution. Otherwise, the judiciary would overstep its bounds and act as a legislator.