Judicialização e democracia: uma análise do Caso Obergefell v. Hodges à luz do debate entre constitucionalismo democrático e minimalismo judicial

Abstract

This work aims to make an analysis of the democratic limits of the judicial decisions, mainly those related to judicial review, given that the amplitude of its clause invokes moral considerations. Therefore, we look forward providing an answer to the main question of this research: What are the democratic limits of action of the Judicial Power, when it comes to the judicial review, from distinct conceptions of democracy? The answer to this question necessarily imposes to make an analysis of the tension between rights and democracy to allow us to offer a proper answer to the question of judicial legitimacy. To do so, we begin our debate with the presentation of the historical background of the judicial review, in order to demonstrate the judicial character of the constitutional interpretation. With the common ground established, we seek to explicit some conceptions of democracy within the area of political philosophy– liberal, republican and deliberative democracy – to understand how each one of those thinks about the tension between rights and democracy. Naturally, it’s also important to make an analysis of important theories that also think about this issue, with an integrative view of political philosophy with the question of the judicial legitimacy to perform legal interpretation, mainly to establish its the limits in the contemporary democracies. Among these theoretical thinkers, two of them present conceptions more restrictive to judicial activity – Habermas and Sunstein - and two conceive a more substantive performance as democratic – Dworkin and Post/Siegel. This research intends to harmonically articulate these complex theories to answer the main question that was made and, finally, be able to offer a coherent position to about the democratic limits of the Judicial Power in a democracy.