Unconstitutional constitutional amendments: can a strong judicial review avoid abusive constitutionalism?

The Brazilian Constitution is perhaps one of the few Constitutions in the World that brings in its role of immutable clauses a larger and more restrictive nucleus of the Power of reform. If on the one hand this limitation may be seem as undemocratic, it can be justified in order to avoid an abuse in the reform of its nucleus in moments of crisis. In fact, abusive Constitutionalism has demonstrated abuse in constitutional reforms, whether by Amendments or new constituent processes to keep Presidents in power and weaken the checks and balances. Thus, this paper intends to discuss how the Brazilian Supreme Court (Supremo Tribunal Federal) has faced the issue of judicial review of constitutional amendments and whether there is a change in their behavior to be more activist or more deferent in times of economic crises or policies. Thus, the proposed question is: can a strong judicial review of Constitutional Amendments by the Judiciary avoid abusive constitutionalism in Brazil?

Social rights in times of economic crisis: the role of the courts

Crisis is the word to sum up the present situation in Western constitutional discourse. The co-causality is unconcealed: economic problems are products and producers, at the same time, of constitutional problems experienced. The project of constituent social democracy became the focus of reforms; the prediction of social rights and guarantees came under heavy attack. Other reasons that corroborate as much or more with the blunder in the public accounts – as for example, the increase of the public expenses – were not attacked (with the same intensity). Given this scenario, the Courts plays a relevant role in safeguarding social and economic rights. Nowadays, there is a strong aversion to judicial protagonism, moreover in issues that borders of Law and politics. However, this distaste position cannot serve as an excuse to the absence of the implementation of economic and social rights. The challenge is to think ways to do it without nurturing a robust model of judicial review.

When 5×4 is not a winning majority: judicial decision-making on unconstitutional constitutional amendments

The main democratic critiques on the strong judicial review tend to disregard the constitutional amendment as a mechanism to mitigate judicial supremacy. For political constitutionalism, supermajority rules do not offer equal treatment, as this rule favors the maintenance of the status quo by making changes more difficult to occur. Underlying this assertion is the belief political equality depends on a decision-making process in which all opinions have the same value, through simple majority. However, both constitutional courts and constitutional amendments are part of the vast majority of contemporary democratic societies. We start from this context to demonstrate how judicial review can be reconnected with the democratic potential of constitutional amendments. The use of supermajority rules in the deliberation of the constitutional courts, unlike what happens in parliaments, serves to make a decision to reject the amendment more difficult, bearing in mind its democratic status.

Who will protect social rights in times of economic crisis? Exploring the legal parameters of judicial intervention in Brazilian public policies

Are the courts able to defend social rights against the will of the majority powers in times of economic crisis? The legal literature affirms the role of the Judiciary as the guardian of the Constitution and consequently, guarantor of these rights against Government’s choices. In contrast, empirical studies show that, in analyzing the preferences of the majoritarian branches in relation to public policies, the Courts opt for self-restraint. In the last global crisis, the Courts maintained the austerity measures, in order to guarantee recovery and stability (Portugal, Spain, Italy). Considering the recent processes of constitutional reform to decrease public spending, notably in relation to issues of public health, education and social security, what to expect from Brazilian Supreme Court (STF)? The goal is to analyze the judicial review decisions in those matters and describe the legal arguments for judicial intervention (or not) in last constitutional reforms.

The Welfare State of China as a Great Wall in the post-crisis of 2008

The purpose is to understand the model of development which gave China the extraordinary success of transforming itself so quickly, since the reforms of Deng Xiaoping in the late 1970s until the second decade of the twentieth century. Such success is especially significant because China has been able to traverse the desert of the 2008 financial crisis and of the movements of deglobalization, changing its development strategy (focused on foreign trade and investment), shifting its priority to policies geared to its internal market, stimulating domestic consumption, expanding social expenditures and labor guarantees, combating social and regional inequalities. So, China is quietly building the world's largest Welfare State, extending the social protection of its citizens, in the counterflow of the West, where such guarantees are being dismantled. Understanding China is finding the logic of using the social protection network as a Great Wall against economic and social instabilities.