Teoria da abstrativização: a mutação constitucional e o papel do Supremo Tribunal Federal no exercício do controle difuso

Abstract

Unconstitutionality nº 3,406 and 3,470 and of the underlying institutes that justified the conclusion of the judgment, as well as in the study of the thesis of abstractionization or objectivization of constitutional review in the Brazilian legal system and the foundations and criticisms about it. At first, the context that gave rise to the debate of the DAUs in question is discussed, with the judgment of RE 971.197 and Rcl 4.335- 5/AC, and only then to focus on the themes of the constitutional mutation that occurred in art. 52, item X of CF/88 - pillar of the argument that justifies the thesis under discussion -, of constitutional review and its forms of exercise and effects, as well as the role of the Supreme Court and the Federal Senate in this process. In this perspective, it should be mentioned that diffuse control, even if exercised by the STF, emanates inter partes and non-binding effects, which was controversial from the discussion of the abstractionization thesis in this form of control, because of what the decisions of the STF in terms of diffuse-incidental control, they would emanate erga omnes and binding effects regardless of the senatorial resolution provided for in art. 52, item X of CF/88, which would only have the power to publicize what was written in a final decision by the Federal Supreme Court. In sequence, the exposition of the arguments that corroborate the thesis of the objectivization of the diffuse control on the part of the doctrine and the main votes of the Ministers of the STF in the judgments discussed in this work, led mainly by Minister Gilmar Mendes, to then present the arguments that denote the total unfeasibility of the thesis defended, with emphasis on the defense of the mixed system of control and the prevalence of its own characteristics and with the concept of unconstitutional mutation imposing brakes on interpretive manipulations.