Processo constitucional brasileiro e diálogos constitucionais: técnicas, efeitos e novas formas de prestação da tutela jurisdicional constitucional

Abstract

The exercise of judicial review by the Courts reveals a field of tension and dispute in determining the normative meaning of the Constitution. A recurring theme in constitutional literature, the fact that the Courts are composed of members not directly elected has led to the advocacy for restrictions on the judicial review power over the constitutionality of norms, based on the argument that there would be a tendency to weaken or even extinguish democracy. The paradigm of constitutional dialogues emerges as an attempt to overcome the duality of “Parliament versus Courts,” which has populated legal thought in recent decades, criticizing the idea of a final word/interpretation. Taking into account this theoretical framework, this work aims to answer the following questions: What are the main dialogue techniques identified in the repressive control of constitutionality in Brazil, allowing the Court to interact with society and other state institutions? What are the consequences of adopting the paradigm of constitutional dialogues for the Brazilian constitutional process? In this sense, this work is organized into two parts. In the first part, the democratic crisis of constitutional courts is contextualized. In this regard, the main arguments, in the form of aphorisms, used both to criticize and defend the role of courts in judicial control, will be exposed. Subsequently, the foundations for the construction of dialogical theories of constitutional oversight will be discussed. Furthermore, dialogues will be considered as an inherent conflict zone in the system, with the aim of delimiting the normative meaning of the Constitution. In the second part, the impacts of the adoption of the mentioned paradigm will be analyzed from the perspective of the constitutional process. To this end, firstly, a study of the new forms of providing constitutional judicial protection will be conducted, with the premise of delimiting the concept of constitutional jurisdiction. Secondly, the employed dialogical techniques will be analyzed, including the exercise of passive virtues and the debate on non liquet in constitutional matters. Finally, the work will address the classic questions regarding the effectiveness and effect of the constitutional judgment, this time relying on two distinct theoretical frameworks: the first concerning constitutional dialogues, and the second concerning a dynamic concept of procedural stability.