Constitutional jurisdiction in times of crisis:

balancing between authoritarian restraint and packaging risk

Abstract

This article analyzes the performance of constitutional jurisdiction in times of democratic crisis. At first, it presents the panorama of the crisis of the 21st century, listing its causes and characteristics. Then, it addresses the importance of the Judiciary in this context. Then, parameters were presented, without any pretense of completeness, which can be adopted by the Judiciary to contain authoritarianism. The instruments cover a) the countermajoritarian function and the rejection of the representative function; b) militant democracy, including prevention, reaction and immunization measures; c) an anti-cyclical constitutional jurisdiction; and d) structural disputes. On the other hand, courts should focus on the following guidelines: a) protection of elections, suffrage and pluripartisanship; b) protection of freedom of expression; c) defense of equality; d) restraint from acts of violence and hate speech; e) ensuring the separation of powers; f) preservation of the consistency of public decisions and the sufficiency of the deliberative process; g) overcoming criminal populism; and h) resumption of the effectiveness of social rights in the face of authoritarian neoliberalism. Finally, it enters the intricacies that involve the risk of packaging the courts in the face of democratic crises. Thus, it concludes that the scenario imposes a firm action by the Judiciary in the fight against authoritarianism, in the light of the proposed parameters, but without losing sight of the threat to its equipment.