THE TENSION BETWEEN CONSTITUTIONALISM AND DEMOCRACY: SOME PERSPECTIVES

The purpose of the presentation is to reconstruct the protagonist role of the Supremo Tribunal Federal. If before the STF was a timid court and without institutional conditions for the expansion of its political power, the Federal Constitution of 1988 created conditions and institutional factors for its expansion in order to bring it to the center of Democracy. There is a strong judicialization of politics, which seeks in the Judiciary the political effectiveness not achieved by traditional means and elements. In contrast there is a strong judicial activism on the part of the Federal Supreme Court in decision-making in the political field. In this sense, the proposed study will use the literature review and empirical analysis of the main decisions highlighted by the court in the last two decades, with the method of jurisprudential review, in order to analyze the construction of the court as a strong protagonist on the scene.

The tension between constitutionalism and democracy is at the heart of contemporary legal and political debates, involving questions of sovereignty and constitutional legitimacy. These two traditions, which can be seen as antagonistic, present points of tension that can be allocated in order to allow a greater or lesser democratic deference. Thus, the central problem of this work can be summarized through the following question: what are the main points of tension between constitutionalism and democracy? In order to do so, two historical moments that contributed to the consolidation of the Modern State were revisited, the French Revolution and American Independence. Through the hypothetical deductive method, it was possible to observe that both historical episodes mentioned sedimented practices that are presented as insurmountable to think about the Modern State, representation and political institutions. It is precisely these elements that can be called constitutional filters.

National politics has its facts and moments in which certain ideas, propositions and thoughts emerge that seem to trigger a debate in which the legal and academic communities hold special importance. What is happening now with the discussion about semi-presidentialism is one such moment, along with other important issues such as the electoral model, the participation of the military in politics and the balance of powers, etc. As long as I can recollect, the number of times that I have seen this occur - countless occasions with proposals for constitutional amendment (apart from legal ones) - is lost in my memory. In this presentation, I would like to address the issue of semi-presidentialism. Is it a system of government? Is it a way, a differentiated logistical way for presidentialism to behave? A political invention of occasion (the famous “casuísmos“ in portuguese) for the times of the Bolsonaro government or even for the prospect of a possible election of Lula in 2022