Revista da EMERJ - V. 21 - N. 3 - Setembro/Dezembro - 2019 - Tomo 1

 R. EMERJ, Rio de Janeiro, v. 21, n. 3, t. 1, p. 55-71, set.-dez., 2019  70 TOMO 1 a borderline behind which interpretation turns from a legal into a political operation? The answer cannot be different from the one given earlier. As long as the interpretation is derived from the text in a legally acceptable way, it remains within the realm of the law. The political consequences may nevertheless be severe. Every new content that a court derives from constitutional norms changes the balance between the political branches of government and the judiciary, mostly in of favour of the latter. Sometimes this is called judicial imperialism. But it is necessary to distinguish between intent and effect. The intent of courts usually is to give effect to constitutional requirements. The effect often is a gain of power that corresponds with a loss of power on the side of the legislature. Still it seems very difficult to convince courts not to enforce what for them follows from the constitution. In this situation many authors resort to judicial self-restraint as a remedy. But self-restraint, as commendable as it might be, is but an appeal to professional ethics, not a legal rule. Descriptively, one can distinguish between active and deferential courts. Prescriptively, no operational criteria are visible. Too many factors are at stake, and often closer analysis shows that an interpretation which looks extremely bold is well-founded under the circumstances in which it was taken. In addition, it is by no means clear that there is a connection between judicial self-restraint and the degree of politicization of courts. The German Constitutional Court, for example, is more active than the U.S. Supreme Court but it is less politicized. Amore promising tool to limit the expansion of judicial power is the amending power. Courts are bound by the text of law. Changing the text belongs to the political power. The political powers can re-programme the judiciary when they disapprove of their jurisprudence. There is, however, one important difference between ordinary courts and constitutional courts. If the legislature is of the opinion that the interpretation of a law runs against their legislative intention it can change the law with a simple majority. Constitutional courts apply the constitution whose amendment is usually more difficult and for good reasons. Yet, only by amending the constitution can the political branches of government correct or re- programme constitutional courts. Therefore, amendments should not be made too difficult. When they are very difficult, as in the United States, the burden of adapting the constitution to new challenges lies on the judges’