By Juliano Zaiden Benvindo
Juliano Z. Benvindo investigates the present stream of constitutional courts in the direction of political activism, particularly by means of targeting the expanding use of the balancing procedure as a “rational” justification for this strategy. From the severe belief of the intense hazards of this flow to democracy, the publication takes as examples constitutional realities, Germany and Brazil, to be able to speak about the rationality, correctness, and legitimacy of constitutional judgements inside of this context. via a discussion among Jacques Derrida’s deconstruction and Jürgen Habermas’s proceduralism, the writer confronts Robert Alexy’s safety of the balancing technique in addition to these constitutional realities. This war of words ends up in the creation of the concept that of constrained rationality utilized to constitutional democracy and constitutional adjudication, which affirms the double bind of background and justice as a situation for a tradition of decision-making dedicated to the primary of separation of powers.
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Extra info for On the Limits of Constitutional Adjudication: Deconstructing Balancing and Judicial Activism
63 This conclusion applied not only to the commerce and supply of these products without the purpose of profit but also to their private consumption,64 inasmuch as they could affect third parties and instigate an illegal market. However, in the specific case of occasional private possession and consumption in small amount of the drug, the court decided that the interference was disproportionate. ”69 The prosecution of these cases and a possible condemnation based on the general provision of penalties could be considered disproportionate, for the effects on the 61 BVerfGE 90, 145 – Cannabis, translation mine.
On the other hand, Justice Sommer understood differently from the majority. According to him, in this particular case, the Narcotic Act, even though establishing a mechanism for refraining from prosecution and condemnation, offended article 2 (I), (II) of the Basic Law, based, mainly, on the principle of proportionality in its narrow sense. 44 BVerfGE 90, 145 – Cannabis, translation mine. 45 3. 46 4. 47 5. ”49 Some of these reasons demand a deeper analysis. The first refers to the BVG’s conclusion that the collision of principles at issue revealed that there is no absolute protection to the development of personality, in conformity with article 2 (I) of the Basic Law, for there is only “an inner core of conformation of private life”50 that is free from interference.
The Ellwanger case, for this reason, in spite of its strong reverberant effects in Brazilian constitutionalism, is not what we could call a novelty. It is the classic discussion of the conflict between rights of personality – in particular, its offense because of racist utterances –and freedom of speech. The case relates to the publication of books by the Brazilian author Siegfried Ellwanger, whose contents were considered full of racist and discriminatory words against the Jewish community. 716/89, his lawyers filed another petition for habeas corpus in the STF,90 whose judgment had wide repercussions in Brazil.