Planejamento constitucional por decisão judicial: um olhar da prática constitucional do Supremo Tribunal Federal a partir da resolução das omissões inconstitucionais

Abstract

This thesis argues the possibility and legitimacy of the constitutional designs through judicial decisions. It presents a reinterpretation of the Judiciary Power regarding the possibility of elaborating constitutional designs through its decisions. From the exercise of judicial review of filling gaps provided in the Constitution of the Federative Republic of Brazil of 1988, by the Federal Supreme Court, the objective is to shed light on the activity of constitutional design carried out by the Court, above all, in the regulation of the right to strike of government employees and the framing practices of homophobia and transphobia as a crime of racism. It argued that the space for judicial protagonism is due to political choices made at the time of drafting the constitutional text and setting the institutional designs of a given political entity. There is no way to talk about the constitution without the institutional structure. So, the application of a constitution is acting in practice through the institutions chosen at the time of design. It defends that the process of drafting the constitutional text is permeated by contextual political choices and postures and limited to the time of its edition. In this sense, although the constitution involves a set of political expectations for a given community, there will still be important space for uncertainties arising from human and temporal limitations and from the act of constitutional planning itself, which leads the drafters to choose provisions that try to reduce the risks of these uncertainties, such as the institution of judicial review. Indeed, the adequate understanding of why the adoption of constitutions and institutional instruments for judicial review of constitutionality derive both from the adoption of provisions on fundamental rights and from a political option to reduce the risks of democratic living and electoral competition, which are not possible to be known in the totality. The elaborated document, the accomplished constitutional design, conveys an imaginary resulting from the constitutional narratives that are possible at that moment or that are decided to not be consolidated in the constitutional text. Therefore, conforming to written constitutional documents derives from their vulnerability and openness to political development in the uncertain future, and in the faith and hope that future generations will be able to carry out adequate accommodation, correct those incompatible with current circumstances, through the redeem of past promises not kept. To the extent that institutions, like the Judiciary, perceive this fallibility, they understand themselves as redesigners of the original project and, thus, develop it over time through permanent constitutional constructions. Durability is guaranteed while the text's normative force is guaranteed. In this view, the constitution and its political and institutional project are a liberating instrument, which does not enslave citizens and institutions to specific political models that cannot be modified or redesigned. Based on this, it was concluded that the Judiciary, especially the STF, is a legitimate constitutional designer. The Constitution of 1988 is a liberating instrument and institutions that must be considerated, redeem imperfect and unfulfilled past promises whenever current circumstances indicate that past practices disregarded them. The main theoretical framework is the understanding of constitutional fallibility defended by Jack Balkin through redemptive constitutionalism, treating it as liberation constitutionalism.