Strict Scrutiny in the USA and the possibility of its application in Brazil: graduating the principle of presumption of constitutionality

• Grant number: 14/27356-2
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): April 01, 2015
• Effective date (End): January 31, 2016
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: André Ramos Tavares
• Grantee: Nicola Tommasini
• Host Institution: Faculdade de Direito. Pontifícia Universidade Católica de São Paulo (PUC-SP). São Paulo , SP, Brazil

Abstract

The present project proposes a study of the strict scrutiny technique, which is a method of more rigorous judicial review, and the possibility of its application in Brazil. Adopted by the US Supreme Court, strict scrutiny graduates the presumption of constitutionality in such a way that certain laws be deemed "suspect", having to be submitted, therefore, to a more rigorous analysis of its compatibility with the Constitution. The reason for this gradation lies in the political process and its susceptibility, in certain cases, to disregard constitutional minorities, given their low representation in the political organs. Therefore, strict scrutiny applies to legislation that restricts the rights of minorities. Although extensively discussed in the USA, the possibility of gradating the presumption of constitutionality is all but ignored in Brazil. For that reason, I intend to analyze the American theory and, considering the peculiarities of each legal system, verify if such a technique is possible in Brazil. If it is possible, the notion of different levels of presumption of constitutionality may impact the way with which this country practices judicial review.