Between constitutions and platforms: the role of courts enforcing fundamental rights online

This paper will build on the Brazilian Supreme Court case-law ADI 6.389, where the Court stated the need for greater dialogue between digital constitutionalism theories and judicial review. Its goal is to discuss the limits of conceptions of digital constitutionalism regarding courts adjudication of fundamental rights enforcement online. For a great part, these conceptions argue the arise of constitutionalisation processes tailored to address the challenges of inherently private and borderless environments and thus can be seen as a seek for alternative means of legitimizing alternative forms of rights protection and enforcement. In turn, Courts’ mandate to arbitrate the scope of such rights is built into democratic institutional designs, i.e., in the very core of democratic legitimacy sources. The paper will highlight the inconsistencies in promoting interdependence of these sources, and identify what useful interactions between them would look like.