Uma análise do controle de constitucionalidade e a influência da Teoria dos Diálogos Constitucionais e da soberania popular para o aprimoramento da fórmula democrática

• Ano de defesa: 2023
• Autor(a) principal: Ibiapina, Giselle Karolina Gomes Freitas
• Orientador(a): Anjos, Priscila Caneparo dos
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Católica de Brasília
• Programa de Pós-Graduação: Programa Stricto Sensu em Direito
• Departamento: Escola de Humanidades, Negócios e Direito
• País: Brasil
• Palavras-chave em Português: Interpretação constitucional; Diálogos constitucionais; Supremacia judicial; Soberania popular
• Palavras-chave em Inglês: Common Law; Judicial review; Constitutional interpretation; Judicial supremacy; Constitutional dialogues; Popular sovereignty
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://bdtd.ucb.br:8443/jspui/handle/tede/3343

Judicial review has its origins in the 17th century, with the English contribution, given the deference of the British people to the Common Law. Later, with the process of colonization of the thirteen British colonies and later, American independence, the thirteen independent countries, start to adopt the judicial review. But it is with the United States that the constitutionality inspection system is established in the year 1803, in the 19th century. It is also known that a century later, that is, in the year 1920, Austria also adopted the judicial review. However, with its own characteristics and arising from the ideas of Professor Hans Kelsen. Moreover, it is from the judicial review that the Judiciary starts to exercise the constitutional jurisdiction, in which the judicial bodies and the Court interpret and apply the Constitution. Such an innovative function starts to raise numerous concerns. Among them, the question of the democratic deficit of judicial decisions, the problem of the last definitive word regarding the meanings of the constitution, and the evident judicial protagonism, which brought, especially to the Contemporary State, the problem of the tension between democracy and constitutionalism. With this, the primacy or judicial supremacy is analyzed and criticized, given the supposed weakening of other political powers and democratic institutions. As alternatives to the issue of judicial preeminence, harmful to democracy and popular sovereignty, by the way, the theory of constitutional dialogues arises, which brings a dialogical control of constitutionality, in which the construction of constitutional meanings is shared between several actors’ social institutions, including the judiciary. In addition to addressing the need for democratization of the constitutionality inspection process, as a means of providing a more plural construction of the meanings of the constitution, the influence of popular sovereignty within the scope of the Supreme Courts was investigated. Thus, the intention is also to research the impact of popular sovereignty on the composition of the aforementioned courts and, particularly, to know whether this (internal sovereignty) influences the decision-making of the Constitutional Courts. Only the Constitutional Courts of the USA, Germany, Canada and United Kingdom are addressed in the research, as these are the most inspiring models when it comes to the issues investigated in this dissertation.