Supremacia Judicial: trajetória, pressupostos, críticas e a alternativa dos diálogos constitucionais

A supremacia da Constituição exige que a Suprema Corte tenha a última palavra sobre o sentido da Constituição? As Supremas Cortes norte-americana e brasileira afirmam que sim, respaldadas pelo conhecimento convencional. O objetivo principal da tese é demonstrar que esta assertiva é simplesmente equivocada. Será reconstruída a história da expansão do papel político do Judiciário, no âmbito da interpretação constitucional, com vistas a elucidar os seus verdadeiros pressupostos. A evolução do constitucionalismo brasileiro será analisada à luz de tais critérios, para que se possa perceber que só há no Brasil algo parecido com uma supremacia judicial após 1988. Após o exame das críticas institucionais e democráticas, será explorado o potencial da doutrina dos diálogos constitucionais para explicar a realidade das interações entre os Poderes Legislativo e Judiciário na interpretação constitucional, e para prover um suporte normativo que logre reconciliar o fenômeno da judicialização da política com a democracia no Brasil.

Entre a supremacia e o diálogo: uma análise das proposições legislativas sobre a fidelidade partidária à luz das decisões do Supremo Tribunal Federal (2007-2012)

No ano de 2007, o Supremo Tribunal Federal modificou sua jurisprudência, que se mantinha inalterada desde 1988, e passou a entender pela existência do princípio da fidelidade partidária no ordenamento jurídico. Essa decisão foi criticada como um exemplo de Ativismo e de Supremacia Judicial. Com base em um estudo das proposições em tramitação no Congresso Nacional, identificamos como o Legislativo tem oferecido respostas à matéria. A partir desse estudo, se questiona se a teoria da Supremacia Judicial é mais adequada do que a teoria dos Diálogos Constitucionais para descrever a relação entre o Judiciário e o Legislativo no caso da fidelidade partidária.

Bibliotheca politica: or, An enquiry into the antient constitution of the English government, with respect to the just extent of the regal power ... In fourteen dialogues. Collected out of the best authors, antient and modern.

Mode of access: Internet.

Eunomus: or, Dialogues concerning the law and constitution of England. With an essay on dialogue.

General index, v. 2, by John Winter Jones.

Dance dialogues : conversations across cultures, artforms and practices

These Proceedings, arising from the 2008 World Dance Alliance Global Summit, reflect both its spirit and diversity, re-appraising what dance is and might be in the 21st century. Through 53 papers from 14 countries in the Americas, Europe and the Asia-Pacific region, the authors — ranging from seasoned scholars to emerging artists publishing for the first time — span the perspectives of academics, educators, performance and community artists, health professionals and cognitive scientists; predominantly from dance but also from film, visual arts, science, performance and philosophy. The papers are grouped under the five Summit themes: Re-thinking the way we make Dance; Re-thinking the way we teach Dance; Mind/body connections; Transcultural conversations and Sustainability

Voter behaviour and constitutional change in Australia since 1967

Australian Constitutional referendums have been part of the Australian political system since federation. Up to the year 1999 (the time of the last referendum in Australia), constitutional change in Australia does not have a good history of acceptance. Since 1901, there have been 44 proposed constitutional changes with eight gaining the required acceptance according to section 128 of the Australian Constitution. In the modern era since 1967, there have been 20 proposals over seven referendum votes for a total of four changes. Over this same period, there have been 13 federal general elections which have realised change in government just five times. This research examines the electoral behaviour of Australian voters from 1967 to 1999 for each referendum. Party identification has long been a key indicator in general election voting. This research considers whether the dominant theory of voter behaviour in general elections (the Michigan Model) provides a plausible explanation for voting in Australian referendums. In order to explain electoral behaviour in each referendum, this research has utilised available data from the Australian Electoral Commission, the 1996 Australian Bureau of Statistics Census data, and the 1999 Australian Constitutional Referendum Study. This data has provided the necessary variables required to measure the impact of the Michigan Model of voter behaviour. Measurements have been conducted using bivariate and multivariate analyses. Each referendum provides an overview of the events at the time of the referendum as well as the =yes‘ and =no‘ cases at the time each referendum was initiated. Results from this research provide support for the Michigan Model of voter behaviour in Australian referendum voting. This research concludes that party identification, as a key variable of the Michigan Model, shows that voters continue to take their cues for voting from the political party they identify with in Australian referendums. However, the outcome of Australian referendums clearly shows that partisanship is only one of a number of contributory factors in constitutional referendums.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Constitutional legitimacy : an international ill and gap in the literature?

The central argument of this work is that “democratic constitutional legitimacy”[2] probably does not currently exist in the politics of any country internationally. This inherent problem in constitutionalism is an endemic governance problem most citizenries should be dealing with, only that we are not in a large extent doing so and haven’t been historically. This position was ascertained using a form of Beck and Grande’s (2010) cosmopolitan methodology in my doctoral thesis (which we shall return to). It is argued that every constitution is in need of considerable rethinking so as to bring its statutes in line with the interests of the plurality of individuals it oversees. Finally, this work attempts to show that research in this area of democratic constitutional legitimacy is lacking in the literature as only a few scholars presently engage the issue (namely Simone Chambers).

Analysing mentoring dialogues for developing a preservice teacher’s classroom management practices

Mentors (cooperating classroom teachers) have a shared responsibility with universities for developing preservice teachers’ pedagogical practices, particularly towards becoming reflective practitioners. Preservice teachers need to participate actively in their own learning, by reflecting and acting on the mentor’s constructive feedback provided during planning and feedback dialogue sessions. This case study uses feedback practices outlined within a five-factor mentoring model to analyse dialogue between a mentor and her respective mentee during different stages in their school-based programs (first practicum). This investigation uses multiple data sources such as video and audio-recorded interviews, archival documents from participants such as lesson plans, reflections and reports to examine preservice teacher’s reflections and implementations of practice as a result of her mentor’s feedback (e.g., establish expectations, review lesson plans, observe teaching then provide oral and written feedback, and evaluate progress). Findings indicated that reflective thinking was more apparent when the mentor did not dominate conversations but instead asked astute pedagogical knowledge questions to facilitate the mentee’s reflections on practice.

Archimedes, aid/watch, constitutional levers and where we now stand

Significant reform of the laws regulating charities is under way in Australia. The reforms cover almost every facet of the relationship between charities and government and the process has brought to the surface different assumptions about the role of charities in society, their entitlement to fiscal and other privileges and the scope and nature of regulation that can or should be imposed on the charities. This paper explores these broader issues in the context of the Aid/Watch case, involving an organisation used by citizens to challenge the State. Such organisations occupy contested space as to what does and does not constitute a charity. Accordingly the case provides a useful perspective from which to consider the broader issues in the relationship between government and charity. This paper seeks to build on the contribution made by other academics, by exploring the constitutional significance of political purposes and drawing from philosophy to provide context and meaning to potentially significant aspects of the judgment that might be missed when it is analysed only in terms of legal precedent through the narrow lens of the existing four heads of charity. Revenue implications for taxation of charities and political parties are also considered and it is suggested that in practice, if not in theory, the fence between them has come down.

Environmental constitutional reform in the developing world : shifting the perspective of international law?

In recent years a growing number of states have chosen to recognise environmental issues in their national constitutions. Some have added declarations about the value of the environment, some have sought to restrict or regulate government’s ability to take action which would potentially harm the environment, while others have proclaimed that citizens possess a right to an environment of a particular quality. A survey of these constitutional provisions reveals that the majority of reform in this area has come from developing states, including a number of states which have been designated as among the least developed countries in the world. The increasing focus on constitutional environmental rights appears to represent a shift in the attitude of developing and emerging economies, which could in turn be influential in setting the tone of the environmental rights debate more broadly, with potential to shape the future development of international law in the area. This chapter examines constitutional environmental rights in an attempt to determine whether consistent state practice can in fact be identified in this area which might form the basis of an emerging norm. It will also analyse some of the potential contributing factors to the proliferation of a constitutional right to a good environment among developing states, and the implications for the development of customary international law.