O problema da limitação do poder constituinte, e a retórica dos direitos fundamentais na jurisdição constitucional brasileira

Abstract

In recent years, Brazil has experienced large-scale political instability. Part of this phenomenon occurs due to diverse economic issues, which will not be dealt with in the present work, but another part had for immediate cause the loss of legitimacy of the constituted forces constituted: It is the crisis of the Executive, Legislative, which reverberates in the inevitably in power the judiciary. This factor served as a basis for the emergence of several social movements that sought to reduce the effects that directly affected the population, such as rising inflation and rising unemployment. In addition, it served as a backdrop for the emergence of forces that took the reins of political power to provide a response that met social demands. This was the prologue to the most recent and notable judicial activism in Brazil, especially in relation to the Constitutional jurisdiction, which, in the direction of a supposedly cohesive social will, extended the field of interpretation of constitutional and infraconstitutional norms, beyond simple hermeneutics, with with the aim of suppressing the gaps left by the deficit of other powers. The objective of this work is to analyze the rhetorical nature of this Constitutional Jurisdiction, which, by acting beyond the interpretation of the norm, broadens its scope of action, starts with a creative activity, insofar as it uses vague, ambiguous and porous Concepts to make a decision according to the political circumstances and the surrounding social outcry.