Transformative Constitutionalism

Author:

Werneck Arguelhes Diego

Abstract

The Brazilian experience with a transformative constitution and an empowered constitutional court has so far been mixed. This chapter uses the case of Brazil to draw three sets of lessons. First, courts are part of the broader arrangement of government institutions which are shaped by elections over time; these dynamics may lead to mismatches between blueprints for constitutional transformation, over time and across different actors and institutions. In Brazil, such a mismatch initially led to the Supreme Court resisting the broad transformative mandate it had received in the new constitutional text. Second, a change in how courts describe their transformative mandate in their decisions is a poor measure of actual change in how they perform their role. Third, while judicial decisions might not be enough to transform existing patterns of inequality, they can still positively change the court’s standing before the public, in general, and scholars in particular. This scenario might lead courts to fashion an optical illusion: judges might choose cases with transformative potential and issue rulings requiring major, structural changes in the way the government deals with certain issues, only to refrain from following up on what happens after these decisions are taken. They reap the benefits of being associated with transformative discourse and move on to the next issue, leaving the status quo largely undisturbed. For these reasons, while the Brazilian experiment with transformative constitutionalism has not necessarily been unsuccessful, it should not be read as a success case of ‘court-centric’ approach to transformative constitutionalism when it comes to social rights and material inequality.

Publisher

Oxford University Press

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1. DÖNÜŞTÜRÜCÜ ANAYASACILIK: ORTAYA ÇIKIŞI VE EVRİMİ;Türkiye Adalet Akademisi Dergisi;2024-07-12

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