Considerações Acerca da Efetivação dos Direitos Fundamentais pela Via do Controle de Constitucionalidade das Leis

Abstract

The article discusses the realization of fundamental rights through the judiciary role in the law’s constitutionality control headquarters, realized by the interference of the members of the Constitutional Court in the public state policies. There will be a contrast between the classical theory of Montesquieu’s separation of powers and its current design, especially in Latin America because of the similarity in the structure of their constitutional texts. Conditions favorable to the “legalization of politics” in Latin America and Brazil, as well as arguments of political and institutional order against the excessive role of the judiciary in control of public policies will also be discussed. Finally, are presented data on the concentrated judicial review system in Brazil, held by the Federal Supreme Court (STF), as today is drawn. Seeks, through a qualitative research, the use of the dialectical method, assess which institutional ways to go in order to make it possible to enforce the constitutionally provided for fundamental rights, by the need to overcome the current judicial practice in the exercise of constitutional jurisdiction, especially in Latin America.