Cortes constitucionais e democracia?: a interpretação das regras de competência e a expansão do controle de constitucionalidade no Brasil

Abstract

Constitutional Courts authority and the legitimacy of judicial review are not self-evident. Theres no necessary correlation between Constitutional Courts and Democracy, although Courts can contribute instrumentally (and depending on certain conditions) to a democratic constitutional project. Thus, considering Constitutional Courts instrumental and conditional authority, we aim to analyse how they must interpret rules that define their own competences, in a coherent way with its authority in a democracy. For such purpose, well expose maximalist and minimalist approaches of judicial interpretation to verify, at the end, which of both is better justified to cases that courts interpret their own competences. Well use as an empiric example the case of Brazilian judicial review expansion that accentuated after 1988, occasioning a centralization of others powers of the Republic and of the own Judiciary around the Supreme Court. Although there are some Legislative concessions, Courts interpretation itself guided that expansion, as we can see in the adoption by the Court of thesis such as those which consider as abstract the diffuse and the concentrated judicial review types. The focus of our argument will be especially in the thesis (although not adopted by the majority of the ministers in the Rcl. 4335/AC, but still today sustained by the Minister Gilmar Mendes) about the constitutional mutation of the article 52, X, CF/88, because it shows clearly the error committed by Courts when they embrace maximalist premises in the interpretation of their own attributions. So, its unconceivable (not only by the Brazilian historic argument but also by normative arguments) that Courts be maximalist interpreters of their competences. Minimalism is more democratic to this hypothesis, because it best considers institutional equilibrium and lets people decide (directly or through their representatives) which powers state institutions actually have in the constitutional project. Therefore, Brazilian Supreme Court must interpret future cases similar to that of Rcl. 4335/AC in a minimalist way.