The role of the judiciary in the Transformative Constitutionalism

This paper aims to demonstrate that Transformative Constitutionalism (TC) requires the prevalence of strong constitutionalism over the weak. The TC updates the meaning of the term “judicial activism” to exclude certain types of judicial decisions that a standard theory would consider activists. At the same time, TC defends that the ordinary judicial function must have an activist content in a context marked by exclusion and inequality such as exists in Latin America. In the same way, TC subscribes the thesis according to which judges are considered as argumentative representatives of excluded persons or groups. These people or groups go to court to obtain protection of their rights. The TC supports the direct access mechanisms of citizens to the courts because it recognizes the role of civil society organizations and NGO’s in the protection of constitutional rights. Finally, the TC supports the function of the courts to restore the balance of powers in hyper-presidential contexts.