Balancing Within the Context of Brazilian Constitutionalism: The Supremo Tribunal Federal’s Shift to Activism

Abstract

As an interesting example of the current movement towards judicial activism, the Brazilian Federal Supreme Court (Supremo Tribunal Federal) reveals how a different constitutional reality can lead, by using similar methodologies and interpretations of basic rights, such as the principle of proportionality (and thus balancing) and the idea of subjective rights as objective principles of a total legal order, to comparable outcomes to those observed in Germany. Except for the untranslatable differences between both countries, it is possible to verify that, also in Brazil, there is a growing process of juridification of politics exactly after a period of authoritarianism and the rebirth of a constitutional democracy. This movement is also followed by the attempt to “rationalize” decision-making, providing thereby decisions that seem not only more legitimate but also the rational result of a careful interpretation of the “Guardian of the Constitution”. The question, nevertheless, is how Brazilian democracy, which must preserve the principle of separation of powers, deals with this reality, and how the exercise of citizenship is preserved in this process.