Democracia e controle de constitucionalidade: críticas e alternativas

Abstract

This dissertation explores the long-debated question of the democratic legitimacy of judicial review. It begins by adressing the tension between two foundational principles of contemporary constitutionalism: the authority of democratic majorities and the counter-majoritarian power exercised by unelected judges. The dissertation is divided into two parts. The first is descriptive: rather than treating judicial review as a necessary premise, the work proposes to examine it as an institutional choice that requires justification and is subject to legitimate alternatives. Jeremy Waldron’s critiques guide the analysis of the risks involved in concentrating moral decisions in a hermetic minority, removed from public deliberation. Against this backdrop, the study examines proposals that seek to balance the protection of fundamental rights with the democratic principle. It analyzes Rosalind Dixon’s “responsive” theory as an alternative, which suggests calibrating the role of courts according to their actual capacity to promote democratic outcomes. The second part of the dissertation is propositive: it discusses how these reflections can be adapted to the Brazilian context, taking into account institutional specificities and the challenges of our constitutional system. Ultimately, it argues that constitutional jurisdiction should be conceived as a tool to bolster democracy, not as a substitute for majoritarian deliberation.