Constitucionalismo abusivo no Chile e no Brasil: atuação dos tribunais constitucionais e mecanismos de defesa democrática

Abstract

The research aims to study the manifestations of abusive constitutionalism in Chile and Brazil. The phenomenon is characterized by the use of mechanisms of formal change of the Constitution to erode the democratic order. In recent years, political actors have started to promote subtle constitutional changes. The use of constitutional tools to create authoritarian and semi-authoritarian regimes is increasingly prevalent. The objective of the maneuver is to make it difficult to alternate in power, as well as to interfere in the institutions of control. For purposes of discussion, the following question was asked: how to reinforce the mechanisms of democratic defense used by the constitutional courts of Chile and Brazil to preserve the States from the evils of abusive constitutionalism? The hypothesis is that, based on the Chilean and Brazilian Constitutions, the constitutional courts of these countries have legal-constitutional instruments that are still inefficient to stop the phenomenon of abusive constitutionalism. The study also deepens the concept, structure and function of abusive constitutionalism, working on categories that fit into its context, such as militant democracy and authoritarian constitutionalism. In addition, it introduces a discussion about some manifestations of abusive constitutionalism, such as constitutional creation without unlimited constituent power, abusive constitutionalism by constitutional amendment and abusive constitutionalism by constitutional substitution. In this scenario, three propositions are made. The first was named abusive constitutionalism through unconstitutionality by suppressing an indirect stony clause. The second was called a hybrid regime of constitutional replacement and reform and, finally, the last one was categorized as abusive Brazilian constitutionalism. In order to achieve the proposed objectives, an extensive literature review was carried out, using as a theoretical framework the productions of professors David Landau, Mark Tushnet, Roberto Gargarella, Carlos Santiago Niño, Luís Roberto Barroso, Estefânia Maria Queiroz Barboza, Ilton Norberto Robl Filho, Rafael Lamera Giesta Cabral, Ulisses Levy Silvério dos Reis, Cristiano Paixão, Steven Levitsky, Daniel Ziblatt, Juliano Benvido, Rafael Estorilio, Cláudio Pereira de Souza Neto and João Gabriel Madeira Pontes, which together represent the “state of the art" about the subject.