Democracy in the modern world means legitimacy for government coercion over individuals. The advent of fundamental rights and judicial supremacy put a brake into the majority
impulse. Critics argue that allowing judicial supremacy overlap the popular will, it is denying
to the people their self-determination, and consequently, denying democracy either. This
research has as its context in the Proposed Constitutional Amendment nº 33 - PEC 33 which
refer to the theorical debate between judicial review and political legitimacy in a democracy.
This work aims to analyze majoritarian, deliberative and constitutional theories of democracy
in order to justify the role of judicial review on the last word about the fundamental right's
protection. This study argues that political legitimacy before coming from public will of selfdetermination
goes through the best defense of fundamental rights and human dignity of
individuals, so on, consequently when judicial review protect rights over the collective will
instead of affronting democracy, end up showing the best concept of what democracy should
be.
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