The presumption of constitutionality and unconstitutionality of Laws

Author(s)

Nicola Tommasini

• Document type: Master's Dissertation
• Press: São Paulo.
• Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
• Defense date: 2018-10-05

Examining board members

José Levi Mello do Amaral Júnior; José Carlos Francisco; Roger Stiefelmann Leal; Telma Rocha Lisowski

• Advisor: José Levi Mello do Amaral Júnior

Abstract

Initially, the presumption of constitutionality sought to limit the powers of judicial review by establishing that statutes could only be held unconstitutional if their incompatibility with the Constitution was \"beyond all reasonable doubt\". However, prompted by new theories on the role of judicial review, the presumption changed and began admitting different orientations (constitutionality and unconstitutionality) as well as different strengths (strong, medium, weak, etc.). This new role of presumptions in judicial review illustrates the necessity of a new concept of presumptions on constitutionality. Through conceptual analysis methodology, the present dissertation aims to contribute to this reconstruction by developing the concept of presumptions on constitutionality as a concept pertaining to the general theory of constitutional law (chapter 1). By exploring the different ways in which presumption are applied by doctrine and constitutional jurisprudence (especially the United States Supreme Court) (chapter 2), it first describes these presumptions as rebuttable presumptions which are establish by each particular constitution (chapter 3). Then, it argues that presumptions establish levels of certainty that authorize certain claims of constitutionality to be justified or unjustified (depending on the orientation of the presumption), erects decision rules for when a presumption is not successfully rebutted and allocates burdens of proof (chapter 4). Furthermore, it posits that presumptions can be based upon the following justifications: inductive-probabilistic, procedural and, most importantly, value considerations (chapter 5). (AU)

• FAPESP's process: 17/07907-2 - The presumption of constitutionality in Brazil
• Grantee: Nicola Tommasini
• Support Opportunities: Scholarships in Brazil - Master