Constitucionalismo democrático: entre as teorias populares do constitucionalismo e um novo aporte do papel das cortes na democracia

Abstract

This article aims to analyze the theory developed by the authors of the Yale school, Robert Post and Reva Siegel, called Democratic Constitutionalism. The theory intends to go against the juriscentric and normative studies prevailing in the American academy, to develop a “positive” contribution, as it is, of the interaction between constitutionalism and democracy, understanding the dialogical flow that involves the process of the legitimation of the constitution. In this process, disagreement is not only welcome, but it is constitutive of such legitimacy, not threatening constitutionalism as some normative theories claim. The analysis developed in this work, rather than an effort directed to the law academy, contributes to a better apprehension of the Brazilian democracy and constitutionalism, since, similarly to the American constitutional reality, we also have the predominance of juriscentric understandings precursor of a (mistaken) identification between judicial supremacy and the supremacy of the constitution, which is evidenced in the protagonist and solipsist actuation that is dominant in the national judiciary.