Aspirational Constitutionalism, Social Rights Prolixity and Judicial Activism: Trilogy or Trinity?

Abstract

The epistemic community of constitutionalists and experts in public law is called to critically examine the main assumptions of fundamental social rights theory and its evident impact on the distribution of power among political actors. This article argues that the challenge of social rights’ enforceability is clearly exacerbated in austerity contexts and within the framework of strong judicial review models.

One could question not only the legitimacy of downsizing legislation on social rights protection during economic setbacks, but also the constitutional courts’ authority to dispute this kind of reformatio in pejus. From this perspective, we analyze the interesting evolution of the Portuguese Constitutional Court’s jurisprudence of crisis.

Given their extensive commitment to social rights, aspirational constitutions leave more room for institutional tensions between democratic deliberation/popular sovereignty and an overextended judicial power. Therefore, a too ambitious or unrealistic constitutional text may seduce judges to colonize political and economic issues. For precisely that reason, this paper focuses on Brazilian right-to-health litigation, hoping to contribute to a puzzling and highly controversial constitutional debate: the so-called “judicial activism” is an illegitimate juristocracy or just compliance with the constitutional text?

Keywords: Social rights; aspirational constitutionalism; non-retrocession principle; judicial activism; austerity; constitutional courts; right-to-health litigation